Viljam Engström is Adjunct professor (Docent), Senior lecturer of constitutional and international law at Åbo Akademi University. Michel Rouleau-Dick is a doctoral candidate in public international law at Åbo Akademi University.
Challenges to public international law are identified at an accelerating pace. Just to name a few, the conventional idea of “statehood” is being questioned by the possible disappearance of several island-states (here and here); the migration/refugee regime has so far failed to incorporate climate migration (here and here); the idea of human rights is being threatened by “climate apartheid”; the public-private divide will need to be rethought; basic principles of the law of the sea regime are questioned, as could be the international treaty regime at large (here and here). Even the global ‘rule of law’ is being called into question. Crucial mitigation and adaptation efforts themselves could also present significant challenges to current regulatory frameworks (see e.g. here and here).
In dealing with the challenges induced by climate change, international legal mechanisms will undoubtedly be of paramount importance. Indeed, the predominant international legal discourse addresses climate change from the perspective of how law can be empowered. The “Transformative Power of Law” (as recently discussed e.g. in Oslo) is sought after, inter alia, to protect various aspects of nature and areas of the globe, to enhance litigation, protect individuals and groups, to deal with particular sources and forms of pollution and environmental degradation, and in order to enhance compliance and enforcement. In this search, international law is often taken for granted. But what if current international law or parts of it become hopelessly outpaced by the rate of change? This is only the first question of many that arise once we seriously start considering what lies ahead. The most paramount question, we propose, is to what extent our current international legal system is questioned by climate change. This – the possible inapplicability of current paradigms – is a far less explored question in contemporary legal research.
There might be a logical explanation to this, as raising the question inevitably requires imagining and engaging with an uncertain future. Speculation, as it may be called, implies uncertainty and is diametrically opposed to the societal function of law to provide stability, which in turn generates predictability and trust. Law can both enable climate change action and provide a framework for structured transformation, which is why we should not begin the transformation process by questioning the guiding principles, one could argue, but rather by looking at how to empower them. Moreover, dogmatism is so imprinted in the legal mind through routine, that it may prevent an openness to radical rethinking. Faced with profound societal change, however, the static nature of law threatens to become a problem. If legal change only occurs ex post facto, law can be counterproductive for climate change action. Moreover, path dependency in the form of mostly self-centred scholarship risks further widening the gap that exists between international law and climate change research in (other) social sciences.
Societal transformation due to climate change is inevitable. This transformation encompasses social, cultural, technological, political, economic and legal change. Social sciences have therefore long admitted that management of transformation on a global scale requires an integrative approach. Joint scientific action is needed for comprehending the polycentric nature of climate change, the “wicked problems” it produces, and acting in response. What this means in terms of a research agenda in international law, however, still remains unclear. Even in the face of strong claims made in other scientific fields directly relating to the function of law, such as the breakdown of social institutions, accounts of international law all too often fail to address the implications of the Anthropocene for its norms and institutions. Scholarly discussion of identified challenges is structured around what seem to be ad hoc claims and issue-specific projections. In the discussion that oscillates between international law´s adaptability and apocalyptic narratives, the premises often remain unclear and controversial (as claimed e.g. here and here). Future challenges to international law, in other words, are aggravated by the lack of systematic analysis of the plausibility and severity of change. Innovative analytical approaches to understanding legal challenges have been called for (e.g. here, here and here) but until now these calls have produced little in terms of response. Contributions that explore the inherent limitations of international law and take a critical stance on the extent to which the law can be adapted are all too rare, despite some exceptions. A key part of this problem, we argue, lies in the lack of mutual intelligibility between international law and the significant body of literature that coexists in social sciences on climate change’s societal impacts.
Fundamental features of international law are being questioned at the very moment when its structuring function is most acutely needed. The urgency for innovative legal approaches is underlined by the fact that the window of opportunity for meaningful transformation of international law is rapidly narrowing. This further magnifies the need to link up with the broader context of social science research, which would also benefit from a perspective that is within the law, an angle that is difficult for social scientists to engage with and that inevitably ruffles feathers when attempted. Doing so has the potential to reveal and produce new knowledge on key underlying premises for acting proactively in climate change law and policy-making.
We need to investigate more systematically the premises for a future functional international legal order, and the role law can play as a dynamic part of the broader research agenda on climate change. Current legal methodologies may not be up to this task. This is where the discipline can learn from climate change research in other sciences where methodologies have been developed for navigating uncertainty, investigating alternative futures, identifying tipping points, and evaluating possible responses. Overcoming the disconnect of international law from other social sciences must therefore also include, we claim, an openness to methodological innovation. Connecting international legal research both substantively and methodologically to social science climate change research would open up new research avenues and opportunities for sorely needed legal innovation.
As of now, international law is more of an extraneous component than an intrinsic part of the rapidly-evolving efforts of the world to fight climate change and adapt to its effects. This is all the more surprising given the increasing pressure to act and adapt to a climate changed world. International law can help mitigate climate change, but if we fail, it might also be our last hope to deal in a constructive way with its devastating consequences. The capacity of international law to cope with the challenges it faces will, in other words, constitute the difference between irrelevance and a reinvigorated rules-based future. As we face the most sizeable challenge of humanity, improved cross-disciplinarity is the path to better understand future legal challenges, needs and possibilities. It is a prerequisite not only for acting proactively but also for doing so in a timely manner. It is also a prerequisite for maintaining the relevance of international law as a discipline and a tool for global governance.
The authors have co-published: “The state is dead – long live the state! Statehood in an age of catastrophe”, Völkerrechtsblog (1 May 2020), and “Climate Change Scenarios and Future Legal Challenges: The Northern Seas Experiment”, in Jetoo, Savitri; Kouri, Jaana; Laine, Silja; Tynkkynen, Nina & Törnroos, Anna (eds.) (forthcoming 2023), Understanding Marine Changes: Environmental knowledge and methods of research. Edward Elgar, Cheltenham.
 A claim we develop further in “Climate Change Scenarios and Future Legal Challenges: The Northern Seas Experiment”, in Jetoo, Savitri; Kouri, Jaana; Laine, Silja; Tynkkynen, Nina & Törnroos, Anna (eds.) (forthcoming 2023), Understanding Marine Changes: Environmental knowledge and methods of research. Edward Elgar, Cheltenham.