This session will explore questions of the rule of law and governance in times of crisis, including the challenges that climate change presents to some of the very conceptual foundations of law. How might the climate crisis require fundamental transformations in the roles of local, Indigenous, national, inter and transnational governance? Are law and democratic participation “sustainable?” The part addresses both the normative foundations of international and domestic law and the institutions that are needed to undergird effective policy.
Jutta Brunnée, “Between Stability and Change: International Climate Law in Precarious Times” Our window for averting dangerous climate change is rapidly closing. What role can international law play in ensuring ambitious collective action in the context of a complex challenge like climate change? I will suggest that international law’s most important role is to provide a normative framework with which national policy debates can engage. Perhaps counter-intuitively, a combination of non-binding international principles of action and non-binding national commitments that can be swiftly altered by individual states are more likely to result in a stable climate regime than binding obligations that states must implement. This applies all the more in our current times of backlash against perceived international over-reach.
John Borrows, “Indigenous Law and Canadian Climate Governance”
Indigenous peoples have experienced climate change through deep time, human time, colonial time, and in our lifetimes. In all these experiences Indigenous peoples have made observations about how to deal with climate change and how to challenge its adverse effects. They do this through Indigenous measures, standards, principles, criteria, precedent, tradition, signposts, benchmarks, tenets, procedures and conventions and customs. This is to say, Indigenous peoples have laws to address climate governance. Indigenous peoples’ laws, flowing from their experiences with climate change, should be an important factor in climate governance. These laws contain, intellectual and cultural resources to help us make decisions, regulate our affairs, and resolve disputes related to climate justice in the present and future. In dealing with climate change, we should recognize and revitalize Indigenous law amongst the other important actions we pursue.
Formulating and implementing effective climate change policies has been described as a “super wicked problem.” Aside from questions of optimal policy, however, there is a prior question that is critical but has received much less attention: how should we design institutions to address climate change? A host of challenges confront institutional design in this context, including scientific and technical uncertainty, cognitive biases, collective action and coordination problems, and polycentric goals. Moreover, these challenges interact in ways that make institutional design even more difficult. For example, scientific uncertainty and cognitive biases do not interact constructively, with those prone to over-optimism willing to view any uncertainty over the precise impact of climate change science as providing support for inaction, while those prone to pessimism will view such uncertainties as justifying apocalyptic action. This article reviews these challenges, and their interaction, and considers practical responses to them in the context of Canadian institutional design. Clearly no institution can possibly address all concerns simultaneously, but we make suggestions for an institutional framework that balances the competing considerations.
Refreshment Break (3:30-3:45pm)
Session Two (3:45-5:15pm) - Law and Justice in Times of Climate Change
Climate change is acting as an accelerant of inequality and injustice locally, nationally and internationally. The drive to decarbonize raises issues of who bears the costs of and who is benefiting from the transition including the vague but important call to promote a ‘just transition’, within and among countries. Adaptation to climate change similarly gives rise to questions about who has to adapt, who will pay for the adaptation, who is included in our concerns about adaptation (both in terms of different people as well as other species and the natural environment) and how we should think about the health effects of climate change. This part will explore these themes of climate justice and injustice.
Chris Essert & Olivia O’Connor, “Reconciling Climate and Housing Justice” Among the many pressing challenges facing liberal societies in a changing world are the climate crisis and the housing crisis. The need to lower greenhouse gas emissions quickly and sharply is well known. And Canada, for instance, desperately needs more housing, both to alleviate homelessness and to make housing more affordable. But residential construction (or construction generally) is a major source of greenhouse gas emissions. So it seems as though addressing the housing crisis head-on will make the climate crisis worse; conversely, while ceasing all construction would make a major difference on the climate front, it would obviously do nothing to address the housing crisis, and likely would make it worse. In this chapter we set out an approach to this apparent conflict, by describing the two crises in terms of justice and public law rights against the state and discussing a model for reconciling competing rights of that form.
Eco-anxiety -- the fear of environmental damage, climate change and ecological disaster -- has been recognized by The American Psychiatric Association as a growing threat to mental health. Studies are showing that individuals are experiencing extreme or chronic anxiety because they feel unable to control environmental problems, particularly climate change. My paper explores the role of eco-anxiety in projects of self governance produced in part from a pervasive sense of regulatory failure. I have previously explored the role of anxiety in self governance: the way that free-floating discourses of anxiety produce anxious subjects, who with the help of experts then undertake a range of self-governing projects in order to manage, mitigate, and reduce the unpleasant emotion. Here, I will consider the role of eco-anxiety in individualizing and depoliticizing solutions to climate change.
Trudo Lemmens & Gabrielle Peters, “How Climate Change Debates and Initiatives Are Shunning Disability Rights” Negative impacts of climate change are disproportionately experienced by disabled people, particularly those who are Indigenous, poor, or living on low incomes, negatively racialized and/or older. In response, discussions often revolve around the vulnerability of affected individuals, as if this explains and justifies the greater harm they experience. While the disproportionate risk caused by, for example, extreme heat or poor air quality, are known, state interventions often focus on alerts to the public. These interventions tend to rely on individual rather than collective responsibility. Elaborating on Martha Fineman’s notion of inevitable social dependency, we will discuss why arguments based on disability inclusion within the standard individual rights framework are insufficient to create the necessary resilience and uphold the disability justice principle of leaving no one behind. Measures taken during and after the recent BC heat dome, which resulted in the deaths of approximately 600 people in one week, will illustrate our points. These deaths occurred in the same year that Medically Administered Death was expanded to disabled people who were not near the end of life, providing a stark contrast between proactive policy to hasten death, presented as safeguarding individual rights, and paucity of policy to support life. We provide specific recommendations, situated in the larger discussion about climate change and justice.
Anver Emon, “The Exploitation of Law’s Anthropocene” This essay will explore the anthropocentric tendencies of modern, secular legal orders, and the exploitative logics they create in relation to a world, recast as (natural) resource. But is this only a modern feature of the law? An exploration into medieval Islamic legal history will examine the extent to which the law’s anthropocentrism persists across time, space, and legal tradition, including religious ones. By comparing the modern to the medieval, the secular to the religious by centering on law’s Anthropocene, the essay will explore whether law as a discipline has the capacity to grapple with our changing climate or will instead enable its continued exploitation.
