The struggle against climate change is, fundamentally, also a struggle for justice. For one, climate law has been a focal point for articulating redistributive demands — ranging from calls for additional climate financing via demands for technology transfer, all the way to reparations and what is called ‘loss and damage’. For another, the objective of limiting global warming to 1,5˚C or 2,0˚C can itself be read as a claim rooted in distributive justice, given all the profoundly unequal impacts that rising temperatures have around the world. Unsurprisingly, questions of re-distribution in the face of the unfolding climate catastrophe will be the central bone of contention at COP 29 in Baku next month.
It bears repeating that those who have contributed the least to the crisis are, by and large, the ones who suffer the most. This holds true not only between states but also for groups within them, as different social classes bear unequal burdens. The wealthiest 1% of the global population, for instance, are responsible for more carbon emissions than the poorest 66%. Moreover, as Tendayi Achiume has pointed out, the unequal and unjust distribution of climate suffering is also deeply racialized, further entrenching existing global inequalities.
Yet, rather than limiting global warming to 1.5 or 2.0°C, current policies are projected to lead to temperature increases by approximately 3.2°C, with drastic consequences. The same shortcomings are evident across other policies and mechanisms. Technology transfer, for instance, remains an abstract wish, frequently counteracted by intellectually property rights and known strategies that distribute high- and low-value production in predictable ways between centres and peripheries. Nor can the flurry of new funds and initiatives hide the naked truth that no significant financial redistribution is forthcoming, anyway falling far short even of the aim that developed countries set for themselves (with generous accounting, they offer about 17% of the supposed USD100 billion per year).
Fossil fuel extraction and unsustainable economic practices that are at the heart of the climate crisis meanwhile remain immensely lucrative and legally protected. The fossil fuels that must stay in the ground are already above ground economically: sold as concessions and leveraged against debt in transactions that are enabled and stabilized by international law. International law is deeply complicit in these disastrous developments. Legal analysis must reckon with the fact that more fossil fuels have been burned in the three decades since the UN Framework Convention on Climate Change was signed in 1992 than in all the years before. This has not so much happened in spite of the law, but with the law, including international climate law.
As climate experts, activists and fossil fuel-lobbyists gear up for COP29 in Baku in December, it is worthwhile to look back at COP28 in Dubai, where delegates once again failed to commit to stopping new fossil fuel explorations or phasing out current extractions. Around 2500 fossil fuel-lobbyists were buzzing around the COP28, about four times the number from the previous year. France’s delegation included representatives from TotalEnergies, while the EU added officials from BP, ENI and ExxonMobil. Al Jaber, who chaired the COP28 while taking a break (or not) from his job as CEO of Abu Dhabi National Oil Company, was overheard dismissing hard climate science and ridiculing calls for a fossil fuel phase-out, making the lack of commitment to such measures at COP 28 less than surprising.
The refusal of some states to recognize the need for a comprehensive phase out of all fossil fuels to keep global heating within 1.5˚C remains in direct contradiction to recent scientific findings, which clearly confirm that any further expansion of oil, gas and coal extraction will make it impossible to meet the targets of the Paris Agreement. Governments of fossil-rich countries are currently planning to produce more than double the fossil fuels by 2030 than is compatible with the 1.5°C target. Given that COP decisions require a consensus of all parties involved, it is highly unlikely that a ban on new exploration and a phase-out of extraction from existing fields and mines will ever be agreed at a COP.
The words of Winston Churchill come to mind, with which E.H. Carr leads into his famous critique — in his The Twenty Years’ Crisis (published in 1939) — of the utopianism during the League of Nations era. Speaking back in 1938 about the League of Nations while states readied for war, Churchill remarked:
I cannot recall any time when the gaps between the kind of words which statesmen used and what was actually happening in many countries was so great as it is now.
New divides: Sustainability and the “Greening State”
It is both true and question-begging to say that a lack of political will has hindered the development of stronger climate policies and more demanding, effective climate law. Such a statement steers attention away from a critical analysis of what is happening in the meantime, also in legal terms. We take a step back from the immediate political travails and take a critical look at the concept of ‘sustainability’, and the work it has done, notably as a device for distinguishing the ‘West’ from ‘the rest’ in an order of nominally equal states.
The role that sustainability has come to play in stabilizing inequality has been played by other concepts before. Nazi Jurist Carl Schmitt pioneered that argument in the 1930s, canvassing how the supposedly international legal order has for long time employed dualist background-divisions that he saw first in the historical distinction between Christian and non-Christian nations, then in civilized and non-civilized nations in the 19th century and then, notably, in the 20th century in their economic position as creditor or debtor states.
Several key contributions in international law — including those of Tony Anghie and Sundhya Pahuja — have rearticulated this argument and developed in further in terms of a ‘dynamic of difference’. But they have stopped with the creation of the developing state. Our argument is that a narrow conception of sustainability functions as a new differentiating principle.
Rather than civilizing and developing states, sustainability now produces greening states in the Global South. On the one hand, those greening states are used to compensate the excessive emission-practices in the Global North (one could also call them offset-states in this function). On the other hand, they are ‘othered’ through ‘sustainability’ with reference to their need to transition to cleaner production mechanisms and their simultaneous incapacity to finance such a transition.
In turn, the concept of sustainability enables the supposedly green states in the Global North to assert their leadership in climate protection. Both the United States and the European Union readily position themselves as frontrunners in the battle against climate change, even as they continue to over-consume and over-pollute. It is worth noting that in 2023, the EU’s overshoot day on the 3rd of May! In stark contrast, there are fifty countries worldwide that never reach their overshoot day at all.
The differentiating principle of sustainability takes its shape and works in the context of what Steven Bernstein has termed ‘liberal environmentalism’ — the way, that is, of addressing environmental issues within the framework of liberal economic governance, essentially with the values of a free market.
We lack the space here to illustrate how this framework has worked. Other contributions, notably those by Sarah Riley Case as well as Julia Dehm among them, have already done so before us, also drawing on Bernstein’s work.
There is much to be said about the use of market mechanisms and the potential as well as limits of steering behaviour through price signals. With considerable understatement: To date, it has not done much to contribute to curbing global warming. Can it still? Perhaps. But carbon markets risk taking pressure away from the necessary transformations of economic practices and unsustainable consumption by enabling offsetting and trades in indulgences. Just consider the ‘Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA)’, which is expected to create considerable demands for carbon credits. CORSIA is spearheaded by the International Civil Aviation Organization (ICAO), whose vision is to ‘[a]chieve the sustainable growth of the global civil aviation system’.
Not only have delegates at any COP failed to reach an agreement on phasing out fossil fuels, but more troublingly, the rhetoric of abstract commitments to ‘sustainability’ and ‘sustainable growth’ has allowed unsustainable practices to persist largely unchallenged, leading to regressive distributional consequences. A mere 1% of the global population accounts for approximately 25% of all air travel, while a staggering 80% of individuals have never taken a flight in their lives.
From managing ‘sustainability’ to plain prohibitions: The ban treaty
We turn to struggles to prohibit new fossil fuel extraction through an ambitious initiative: the Fossil Fuel Ban Treaty. While such a proposal may appear utopian, we argue that the quest for this treaty possesses a counter-hegemonic potential that outstrips the precarious solutions offered by current policies, which often promise redistribution but deliver little. The initiative is already gaining momentum, supported by the European Parliament, the World Health Organization, and numerous cities and scientific institutions. It is spearheaded by thirteen states, eleven of which are island nations acutely affected by the climate crisis.
We see the ban-treaty as a form of rebellious treaty-making, which we have seen in other areas of international law before. The phenomenon is this: Broad coalitions of small and medium-sized states, together with civil society organisations, are seeking reforms in international treaty regimes by initiating new and more radical ‘complementary treaties’ based on bright-line prohibitions of highly detrimental practices. It is a rather creative legal response to a perceived institutional stalemate often caused by powerful states defending the legal and political status quo. In the field of disarmament, for instance, scholars have observed new coalitions of nuclear ‘have-nots’ that, in many ways, break with the old legal status quo of the Nuclear Non-Proliferation Treaty (NPT) and confront the nuclear-weapon states with a new complementary treaty regime, the Treaty on the prohibition of nuclear weapons (TPNW). Recent experiences from already existing rebellious treaties confirm that such counter-hegemonic moves can create new political and legal dynamics that feed into the old treaty regime around the Paris Agreement as it is confronted with a substantial number of well-coordinated member-states who have ratified the more progressive rebellious treaty.
Drawing on such experiences, the treaty banning fossil fuels should plainly prohibit fossil fuel exploration and set clear deadlines for the extraction. It should also include a provision to strengthen cooperation in the transformation of energy infrastructures from fossil fuels to renewable energies. It should find a way of respecting the principle of common but differentiated responsibilities. Member states would not only be obliged to ban further exploration but also to ban the import of fossil fuels extracted from new fields and mines.
The new treaty, initiated by those most affected and supported by a broad coalition of states, would stand alongside the Paris Agreement and refer to its binding targets. Even if the new treaty lacked strong enforcement mechanisms and participation was not universal, it would arguably still have a much-needed normative and symbolic effect. It could function — and has already functioned — as point of reference for socio-political mobilization. Prohibiting the very source of the ensuing climate catastrophe would renounce and condemn a set of extractive practices, which until the 1970s, were seen as a productive and relatively cheap foundation for industrial growth, but which, as we now know, are destroying the very basis of human and non-human life on this planet.
Political struggles for a rebellious prohibition treaty have a renewed progressive potential as, for one, leaving fossil fuels in the ground is the most likely, if not necessary, strategy for curbing global warming. For another, alternatives of carbon pricing and working with market incentives not only delays necessary action, it also further entrenches patterns of domination and dependence.
It is abundantly clear that commitments to leave fossil fuels in the ground must go hand in hand with redistribution. This is especially pertinent for countries with low per capita emissions and minimal income levels. Currently, insular and one-sided demands that developing nations preserve their carbon sinks and keep fossil fuels untapped have sparked significant criticism. President Irfaan Ali of Guyana recently rebuked a BBC interviewer who adopted a moralistic stance, suggesting that Guyana should refrain from exploiting its offshore oil fields.
Climate finance is poised to emerge as a particularly contentious issue at COP 29, especially given the Global North’s persistent failure to make substantial pledges or to fulfil existing commitments. A rebellious ban-treaty could not only exert pressure to phase out fossil fuels, thereby adhering to established temperature targets, but also renew the momentum for genuine redistribution — redistribution that seriously compensates those countries willing to keep fossil fuels in the ground.
