Governing by expertise: the contested politics of (accounting for) land-based mitigation in a new climate agreement

This article analyzes the contested politics of including (and accounting for) land-based mitigation in a post-2020 climate agreement. Emissions from land have been only partially included to date within the United Nations Framework Convention on Climate Change and its Kyoto Protocol. The Paris Agreement, adopted in December 2015 and “applicable to all” for the post-2020 period, raises the possibility of unprecedented reliance on land-based mitigation. This has significant consequences for furthering both ambition and equity in global climate mitigation efforts. Yet, what are these consequences, and how have they manifested themselves in the existing (pre-2020) multilateral climate regime? What role do accounting rules for land-based mitigation play herein? In addressing these questions, we identify key dimensions of what we term the “governance by expertise” approach taken to land-based mitigation to date, which has served to reduce the environmental integrity of existing (developed country) mitigation efforts. Specifically, we analyze land-use accounting rules as a site of politics and highlight the “technicalization of politics” underway in this realm, which obscures the political implications of how land has been included to date. We conclude by considering whether the Paris Agreement institutionalizes similar dynamics, and the environmental integrity and equity implications of doing so.     

Market-based mechanism and ‘climate justice’: reframing the debate for a way forward

International Environmental Agreements: Politics, Law and Economics - The Paris Agreement on climate change recognizes, reluctantly albeit, the importance of ‘climate justice’ in its...     

Postface: fragmentation,failing trust and enduring tensions over what counts as climate finance

The Paris Agreement commits nations in Article 2(1) to “Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.” However there is an absence of internationally agreed accounting rules that would permit overall assessments of progress to this goal and any meaningful comparisons of performance between countries. This is true also for the quantitative Copenhagen/Cancún promise by developed nations to jointly mobilize US$100 billion by 2020. Our goal is to provoke discussion about the depth of the problems this lack of a functional definition and accounting system have created and perpetuated. We do so by describing the fragmented system of national reporting of climate finance and how the OECD’s Rio Marker system is serving neither contributors nor recipients. More than a trust issue between developed and developing countries, we argue that the lack of modalities to account for climate finance also considerably impedes the effective functioning of the bottom-up approach that now prevails under the UNFCCC. The deadline to propose "modalities of accounting climate finance" by 2018 is a crucial window in which to address this chronic issue in international climate policy.     

Social Justice in Love Relationships: Recent Developments

In all societies, people are concerned with justice. “What’s fair is fair!” “She deserves better.” “It’s just not right.” “He can’t get away with that!” “It’s illegal.” “It’s unethical!” “It’s immoral” are fairly common laments. In the 11th century, St. Anselm of Canterbury (Anselem of Canterbury: The major works, 1998) argued that the will possesses two competing inclinations: an affection for what is to a person’s own advantage and an affection for justice; the first inclination is stronger, but the second matters, too. Equity theory, too, posits that in personal relationships, two concerns stand out: firstly, how rewarding are people’s societal, family, and work relationships? Secondly, how fair and equitable are those relationships? According to equity theory, people feel most comfortable when they are getting exactly what they deserve from their relationships—no more and certainly no less. In this article, we will begin by describing the classic equity paradigm and the supporting research. We will then recount the great debate that arose in the wake of the assertion that even in close, loving, intimate relationships, fairness matters. We will end by describing what scientists have learned in the past 35 years about the competing claims of altruism, reward, and fairness in love relationships.     

Fairly sharing 1.5: national fair shares of a 1.5 °C-compliant global mitigation effort

The problem of fairly distributing the global mitigation effort is particularly important for the 1.5 °C temperature limitation objective, due to its rapidly depleting global carbon budget. Here, we present methodology and results of the first study examining national mitigation pledges presented at the 2015 Paris climate summit, relative to equity benchmarks and 1.5 °C-compliant global mitigation. Uniquely, pertinent ethical choices were made via deliberative processes of civil society organizations, resulting in an agreed range of effort-sharing parameters. Based on this, we quantified each country’s range of fair shares of 1.5 °C-compliant mitigation, using the Climate Equity Reference Project’s allocation framework. Contrasting this with national 2025/2030 mitigation pledges reveals a large global mitigation gap, within which wealthier countries’ mitigation pledges fall far short, while poorer countries’ pledges, collectively, meet their fair share. We also present results for individual countries (e.g. China exceeding; India meeting; EU, USA, Japan, and Brazil falling short). We outline ethical considerations and choices arising when deliberating fair effort sharing and discuss the importance of separating this choice making from the scholarly work of quantitative “equity modelling” itself. Second, we elaborate our approach for quantifying countries’ fair shares of a global mitigation effort, the Climate Equity Reference Framework. Third, we present and discuss the results of this analysis with emphasis on the role of mitigation support. In concluding, we identify twofold obligations for all countries in a justice-centred implementation of 1.5 °C-compliant mitigation: (1) unsupported domestic reductions and (2) engagement in deep international mitigation cooperation, through provision of international financial and other support, or through undertaking additional supported mitigation activities. Consequently, an equitable pathway to 1.5 °C can only be imagined with such large-scale international cooperation and support; otherwise, 1.5 °C-compliant mitigation will remain out of reach, impose undue suffering on the world’s poorest, or both.     

Making initiatives resonate: how can non-state initiatives advance national contributions under the UNFCCC?

The international governance landscape on climate change mitigation is increasingly complex across multiple governance levels. Climate change mitigation initiatives by non-state stakeholders can play an important role in governing global climate change. The article addresses the relationship between intergovernmental and transnational governance processes in global climate governance. Particularly, the article aims to complement existing research on the role of “orchestration” by and through the UNFCCC process by focusing on how successful transnational initiatives can resonate within the intergovernmental negotiation process in order to inspire more ambitious climate action also on the part of national governments. This issue is addressed by systematically analysing interdependencies between transnational and international governance. Building on a structurational regime model, the article develops a theory of change of how and through which structuration channels non-state initiatives can contribute to changing the politics of international climate policy, traces existing UNFCCC processes and the Paris Agreement with a view to identifying inroads for a more direct feedback from non-state initiatives and derives recommendations on how and under which agenda items positive experiences can resonate within the UNFCCC negotiation process.     

Countries start to explain how their climate contributions are fair: more rigour needed

In the lead-up to the Paris Agreement, every country was invited to submit an intended nationally determined contribution (INDC), and indicate how it is fair. We analyse how countries have explained the equity of mitigation and adaptation in 163 INDCs, providing a bottom-up analysis of equity to complement a literature that has focused on top-down allocations. While no single indicator of equity was used by all INDCs, a menu of quantified indicators or tiered approaches could provide bounded flexibility across different national circumstances. The most common equity indicator used in mitigation INDCs is the country’s ‘small share’ of global emissions, followed by per capita emissions. The emissions of individual ‘small share’ INDCs add up to 24% of annual global emissions when using a consistent data set. Per capita emissions are used across a range of countries with low (0.5) to high (25 t CO₂–eq per capita) values for that indicator. Adaptation is included in 89% of INDCs, of which more than half quantify impacts in some manner, and two-thirds use vulnerability as an equity argument. Broadly, we find that most claims to equity are either unsubstantiated or drawn from analysis by in-country experts. Only two INDCs refer to independent evidence, and none consider the consequences of their approach when applied to all countries. Given that the aggregate effect of INDCs will not be sufficient to keep global temperature increase well below 2 °C, and even less to keep temperature below a 1.5 °C rise, the INDCs have distributional implications. More rigorous information is needed to assess relative fair shares, which could be provided officially in future nationally determined contributions (NDCs). Absent improved information, it is likely that researchers and civil society will continue to assess informally what could be considered fair. A hybrid approach to equity—combining bottom-up assessment and top-down allocation—would be consistent with the hybrid architecture of the Paris Agreement, which comprises bottom-up elements such as NDCs and top-down elements such as global goals. Improved information on equity in NDCs will be an important input to the global stocktake ‘in the light of equity’.     

Climate change and national laws across Commonwealth countries

This paper furthers the Commonwealth agenda on climate action by exploring the kinds of ‘practical and swift action’ that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide ‘co-benefits’ in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.     

“Oral Tradition” as Legal Fiction: The Challenge of Dechen Ts’edilhtan in <Emphasis Type="Italic">Tsilhqot’in Nation v. British Columbia</Emphasis>

Often understood as synonymous with “oral history” in Indigenous title and rights cases in Canada, “oral tradition” as theorized by Jan Vansina is complexly imbricated in the European genealogy of “scientific history” and the archival science of Diplomatics with roots in the development of property law and memory from the time of Justinian. Focusing on Tsilhqot’in Nation v. British Columbia, which resulted in the first declaration of Aboriginal title in Canada, this paper will discuss Tsilhqot’in law (Dechen Ts’edilhtan) in the context of the court’s deployment of Vansina’s theory and its genealogy, and conclude that “oral tradition” functions as a legal fiction enabling the court to remain in the familiar archive of its own historiography while claiming to listen to the Elders.     

Truth and Justice, Inquiry and Advocacy, Science and Law

Abstract. There is tension between the adversarialism of the U.S. legal culture and the investigative procedures of the sciences, and between the law's concern for finality and the open‐ended fallibilism of science. A long history of attempts to domesticate scientific testimony by legal rules of admissibility has left federal judges with broad screening responsibilities; recent adaptations of adversarialism in the form of court‐appointed experts have been criticized as “inquisitorial,” even “undemocratic.” In exploring their benefits and disadvantages, it would make sense to look to the experience of other legal systems.     

Evoking equity as a rationale for solar geoengineering research? Scrutinizing emerging expert visions of equity

This paper examines how notions of equity are being evoked by expert advocates of more research into solar geoengineering. We trace how specific understandings of equity figure centrally—although not always explicitly—in these expert visions. We find that understandings of equity in such “vanguard visions” are narrowly conceived as epistemic challenges, answerable by (more) scientific analysis. Major concerns about equity are treated as empirical matters, requiring scientific assessment of feasibility, risks, or “win–win” distributive outcomes and optimizations, with concurrent calls to delimit risk or reduce scientific uncertainties. We argue that such epistemic framings sidestep, inter alia, the inequality in resources available to diverse non-experts—including the “vulnerable” evoked in expert visions—to project their own equity perspectives onto imagined technological pathways of the future. These may include concerns relating to moral or historical responsibility and/or lack of agency in shaping the directions of innovation. We conclude that the performative power and political implications of specific expert visions of equity, evoked as a rationale to undertake solar geoengineering research, require continued scrutiny.     

中国刑事专家辅助人向专家证人的角色转变

中国的刑事专家辅助人具有既类似于律师又类似于鉴定人、证人的多重属性;围绕专家辅助人意见的性质,也形成了质证方式说、鉴定意见说、证人证言说等多种观点。角色定位上的混乱,不仅造成了独具特色的鉴定人与专家辅助人的双轨制,而且常常使专家辅助人意见的法庭采信陷入困境。从最高人民法院有关专家辅助人的新近规定看,专家辅助人的角色呈现出向专家证人转变的趋势。这种转变的核心要求,一是实现鉴定人和专家辅助人的诉讼地位平等,专家辅助人意见和鉴定意见在专家证言意义上的证据效力平等;二是使专家辅助人回归专家证人本色,将强加给专家辅助人的不合理的质证职责交还给律师、检察官;三是提高律师、检察官熟练运用交叉询问规则、对科学证据进行质证的能力,充分发挥法官的科学证据“守门人”作用,以适应事实认定科学化的需要。     

Beyond CSI: Calibrating public beliefs about the reliability of forensic science through openness and transparency

What drives public beliefs about the credibility of a scientific field? This question is increasingly important, with recent discussion of a “reproducibility crisis” affecting many fields. Such discussions are vital in forensic science, a discipline that has experienced severe scrutiny from both the media and large oversight bodies. In this paper, we make three contributions to this discussion. First, we bring together and compare several studies in which laypeople were asked about the reliability of forensic science practices. This review suggests that forensic practices do not enjoy uniformly high reliability ratings from the public and these ratings are not calibrated with the scientific consensus. We then review three empirically-tested ways that other fields are dealing with their own crises, all centred around transparency and openness. Finally, we make recommendations for how forensic science can leverage transparency and openness to improve and maintain its long-term credibility. As part of these recommendations, we find that empirical research supports the Houston Forensic Science Center’s recent claims that it has improved its credibility through openness and transparency.     

Cautious scrutiny: The Federal Climate Change Act case in the German Constitutional Court

In a unanimous decision of 24 March 2021, the German Federal Constitutional Court declared certain provisions of the Federal Climate Change Act (FCCA) unconstitutional. The Court upheld the greenhouse gas emission targets for the period until 2030 but found the outlined review procedure for the following years lacking: it failed to adequately specify targets, thereby violating the fundamental rights of the applicants. Despite the at times exuberant reception, this case note argues that the decision stopped well short of a legal revolution. Ultimately, the Court embraces an orthodox doctrine on positive obligations that emphasises deference to the legislature on climate change policy. Nonetheless, there are some genuine, albeit subtle legal innovations: (1) extending legal standing to applicants resident outside of Germany; (2) specifying general constitutional commitments to tackling climate change through the Paris Agreement, and (3) relying on a concept of intergenerational equity in the distribution of emission reduction burdens.     

Trace evidence: Here today,gone tomorrow?

The recent report of the National Research Council of the US National Academies “Strengthening Forensic Science in the United States: a Path Forward” found evidence that the level of scientific development and evaluation varies substantially among the forensic science disciplines. In this paper the status of trace evidence will be reviewed from an international perspective with particular reference to case studies. The paper will argue that the trace evidence discipline needs to learn from past experience and that serious coordinated action is required at an international level if trace evidence is to continue to meet the standards expected of forensic science in the future. The paper concludes that it is vital that trace evidence remains a key component of forensic investigation due to its important role in addressing the ‘what happened’ question.     

Negotiating Proximity: Expert Testimony and Collective Memory in the Trials of Environmental Activists in France and the United Kingdom

This article analyzes the role of expert witness testimony in the trials of social movement actors, discussing the trial of the “Kingsnorth Six” in Britain and the trials of activists currently mobilising against airport construction at Notre Dame des Landes in western France. Though the study of expert testimony has so far overwhelmingly concentrated on fact‐finding and admissibility, the cases here reveal the importance of expert testimony not simply in terms of legal argument, but in “moral” or political terms, as it reflects and constitutes movement cognitive praxis. In the so‐called climate change defence presented by the Kingsnorth Six, I argue that expert testimony attained a “negotiation of proximity,” connecting different types of contributory expertise to link the scales and registers of climate science with those of everyday understanding and meaning. Expert testimony in the trials of activists in France, however, whilst ostensibly able to develop similar bridging narratives, has instead been used to construct resistance to the airport siting as already proximate, material, and embedded. To explain this, I argue that attention to the symbolic, as well as instrumental, functions of expert testimony reveals the crucial role that collective memory plays in the construction of both knowledge and grievance in these cases. Collective memory is both a constraint on and catalyst for mobilisation, defining the boundaries of the sayable. Testimony in trials both reflects and reproduces these elements and is a vital explanatory tool for understanding the narrativisation and communication of movement identities and objectives.     

Epistemological Perspectives in Legal Theory

Abstract The authors deal with several important epistemological problems in legal theory. The Nineteenth century background is analyzed from the emergence of legal science freed from the constraints of natural law and built on the model of the empirical sciences. The authors show how this science of law has been influenced by the social sciences and trends in ideological criticism throughout the Twentieth century. The epistemological question central to legal science is tackled, i.e., what kind of “epistemological break” should there be with regard to the object studied? To answer this question, the authors plead for the adoption of a “moderate external point of view” which bears in mind lawyers' “internal point of view.”     

International Whale Conservation in a Changing Climate: The Ecosystem Approach,Marine Protected Areas,and the International Whaling Commission

Abstract

Whale populations are exposed to a suite of contemporary threats, including by-catch, ship strikes, habitat degradation, and climate change. Of these threats, climate change presents the most challenging management dilemma because it pressures whale populations directly (e.g., by altering habitat suitability) and indirectly (e.g., by increasing disease transmission and exposure to toxicants, by affecting prey abundance, and by exacerbating other threats). There is also an emerging scientific understanding of how healthy whale populations constitute an important biological component of the climate system and contribute to climate change mitigation. The International Whaling Commission (“IWC”), which is the primary international organization dedicated to whale conservation and management, has investigated and studied climate change but has failed to develop a commensurate management response. Conversely, parallel developments in international wildlife conservation and management evince support for an integrated and holistic ecosystem approach (“EA”) and urge the immediate development of climate-adaptive measures. The EA has been operationalized in prominent legal instruments and through various management techniques, including marine protected areas (“MPAs”). In view of observed and predicted effects of climate change on whales, this article proposes a new approach to designating and protecting whale sanctuaries at the IWC that better aligns with a contemporary understanding of the EA and MPAs, and that can advance the IWC’s institutional transition towards climate-informed modernized management. This proposed innovation is tested for its legal permissibility and political feasibility, and the analysis concludes that improving the IWC’s regulatory functionality remains a crucial conservation objective.     

Population growth,family planning and the Paris Agreement: an assessment of the nationally determined contributions (NDCs)

International Environmental Agreements: Politics, Law and Economics - Under the Paris Agreement, nations made pledges known as nationally determined contributions (NDCs): national climate plans...     

Brazil and the Paris Agreement: REDD+ as an instrument of Brazil’s Nationally Determined Contribution compliance

International Environmental Agreements: Politics, Law and Economics - The Paris Agreement on climate change recognises the central role of forests in achieving the well-below 2&nbsp;°C...