Author: MJIL

by MJIL

I thank Professor C. Ford Runge for his comment on my article and agree with his analysis that places biofuels within a larger picture. From the Brazilian perspective, such heavy subsidies used by the United States and the European Union constitute the very “Gordian knot” of the negotiations in the Doha Development Round of the World Trade Organization. Naturally, that does not apply only to Brazil, but to all developing countries whose agricultural exports are heavily taxed. Ethanol from Brazil is just the newest product to face that barrier — currently circumvented, in limited amounts, through the Caribbean Basin Initiative, an agreement whereby Caribbean countries, who receive Brazilian ethanol, can export it into the U.S. duty free.

There is much debate and controversy regarding who would benefit from further world trade liberalization. However, even at current levels (of market openness), biofuels are expanding fast enough to consume many resources, take up substantive amounts of land, and raise social and environmental issues that we had better not abandon to market forces only. As Professor Runge correctly points out, a multilateral governance framework engaged on such issues seems necessary. The environmental and socio-economic effects of expanded biofuel production (e.g. on forests, climate, global food security) cannot be tackled by individual countries alone. Both the market forces and the political impetus for producing more biofuels are also very much internationalized (the EU-Africa energy partnership, whereby African countries are being incentivized by Europe to produce biofuels, is an illustrative case) (see Charles et al, 2009). If governments the world over are investing taxpayers resources and policy efforts into the expansion of biofuels, they should well engage in cooperative efforts to address biofuels’ sustainability issues, too.

But Europe and North America must realize that large-scale biofuel production and its global trade (and their impacts) may well expand without them. The European Union is currently relying on its own unilateral sustainability criteria for biofuels. But South-South trade is increasing and, for instance, Asia is becoming an ever larger importer of South American agricultural goods — biofuels included. The multi-polar world of today requires that efforts to govern for sustainability also be multilateral. The alternatives are many, from the creation of a World Environment Organization capable of securing that, as mentioned, to the development of a biofuel governance framework within the scope of the UN-Energy interagency mechanism or of the Food and Agriculture Organization (FAO). Each alternative would naturally have advantages and difficulties to overcome, and these would need to be carefully thought out (see Bastos Lima and Gupta, 2009). In the end, how we will deal with these increasing issues of biofuel expansion, and whether that will prompt us to better collaboration on other energy and agricultural issues, remains to be seen.

References:
Bastos Lima, M.G. and Gupta, J. (2009). Biofuel and Global Change: The Need for a Multilateral Governance Framework. Paper presented at the Amsterdam Conference on the International Human Dimensions of Global Environmental Change. ‘Earth System Governance: People, Places and the Planet’.

Charles, M.B., Ryan, R., Oloruntoba, R., Heidt, T. von der, Ryan, N. (2009). ‘The EU-Africa Energy Partnership: Towards a mutually beneficial transport energy alliance?’ Energy Policy vol. 37: 5546-56.

by MJIL

[C. Ford Runge is the Distinguished McKnight University Professor of Applied Economics and Law at the University of Minnesota.]

Mairon G. Bastos Lima is to be congratulated for his coherent and ambitious proposal to rationalize the governance of biofuels through multilateral applications of the Rio and Good Governance principles. As he correctly observes, biofuels policies are highly nationalistic and lack even a rudimentary multilateral structure. Although he is right in his criticism, and constructive in his proposed alternatives, the analysis should be placed in a larger perspective.

Biofuels are but one of many areas in which excessive subsidies have created now falsely-named “infant industries” that demand protection from competition — both domestic and foreign. By any estimate, biofuels subsidies have grown in OECD countries to hundreds of billion dollars. Apart from the huge diversion of productive resources, and increasing evidence of environmental damages, national governments continue to encourage a patchwork of methods to boost biofuels production, including tax allowances, mandates and tariffs. These may not only be inconsistent within a nation’s borders, but also operate to the detriment of other nations across borders (de Gorter and Just, 2009).

Unfortunately, biofuels policies, especially in the United States and European Union, have been largely spawned from pre-existing agricultural and agribusiness interests. The basic mode in the agricultural sector is to devise methods to transfer income from taxpayers and consumers to producers and processors of agricultural products. In the case of biofuels, these transfers are often misunderstood or unknown to the public at large. In the United States, for example, the “blenders tax credit” to ethanol essentially subsidizes the price of corn. Two other policies: the federal biofuels mandates (now at about 12.9 billion gallons, scheduled to rise to 36 billion gallons by 2022) and a 54 cent-per-gallon tariff on imported ethanol have myriad effects. The mandates created a seemingly safe market for investors in ethanol and biodiesel plants, but have encouraged overinvestment at levels that have bankrupted many. Ironically, the precarious state of the industry has now become a rationale to continue the mandates, which forces consumers to purchase blends of biofuels and petroleum that are more costly and less efficient. The 54 cent-per-gallon tariff protects domestic producers of maize-based ethanol from foreign (mainly Brazilian) producers of much lower cost sugar-based ethanol. If sugar-based ethanol could enter U.S. markets duty free, it would lower costs to consumers, but would threaten the stranded investments in the maize-based facilities. From the point of view of trade policy, the U.S. has taken a product in which it has a clear comparative advantage (maize as feed for poultry, pork and beef) and converted it to a product (ethanol) in which it has an obvious comparative disadvantage of roughly 54 cents-per-gallon vis-à-vis Brazil.

Placed in a larger perspective, biofuels policies reflect many of the distortions and inefficiencies endemic to agricultural policy writ large. And just as agriculture has resisted efforts at multilateral negotiations and rationalization, so biofuels interests and national governments are likely to resist calls for new governance frameworks built on the Rio and good governance principles. One conclusion that I have reached (Runge, 2009) is that attempting to negotiate separate agreements or protocols is problematic without an overarching framework, especially relating to issues of agriculture, environment and trade. This could take the form of a World Environment Organization (WEO) to operate alongside of the World Trade Organization (WTO). Applying the Rio and good governance principles to biofuels would be more likely in the context of such an overarching framework.

References:

de Gorter, H. and D.R. Just. 2009. “The Welfare Effects of a Biofuel Tax Credit and the Interaction
Effects with Price Contingent Farm Subsidies.” American Journal of Agricultural Economics 91(2)(May): 477-488.

Runge, C.F. 2009. “The Climate Commons and a Global Environmental Organization.” In Climate Change, Trade, and Competitiveness: Is a Collision Inevitable? L. Brainard and I. Sorkin (eds.). Washington, D.C., Brookings Institution.

by MJIL

[Mairon G. Bastos Lima is a PhD researcher at the Institute for Environmental Studies at the Vrije Universiteit Amsterdam.]

I thank the moderators of Opinio Juris for giving me this opportunity to reflect upon my article, entitled ‘Biofuel Governance and Interational Legal Principles: Is It Equitable and Sustainable?‘.

Global climate change, energy insecurity, and the underdevelopment of rural areas have been crucial issues in today’s world. Biofuels appear as a potential and innovative solution for all three problems, and policy-makers have been quick at promoting their large-scale production. Nevertheless, we see now that, if that production is left unfettered, many other issues may arise as a consequence, such as expansion of chemical-intensive monocultures and deforestation, displacement of rural communities, competition for land and water, and impacts on food security locally and globally. Even climate change itself may be enhanced instead of mitigated if the wrong production strategies are pursued. That clearly reveals the need for effective biofuel governance, oriented towards equitable and sustainable development.

A broad basis for that is provided by the Rio Declaration on Environment and Development, signed at the 1992 Earth Summit, as well as by other emerging principles of law, such as the good governance principles. In my article, I analyse those two sets of principles and match their requirements with current biofuel production and governance efforts. I argue that these current activities and efforts still fall short of most needs: the existing governance initiatives remain scattered and make up for a weak framework, failing to ensure the rule of law and the principles of legitimacy, transparency, inclusiveness, equity, accountability, and responsiveness to people’s most urgent needs. As such, the interests of those less powerful actors in society, who also happen to be the most affected (e.g. rural communities, indigenous peoples, the food-insecure) are yet to be duly heeded.

That has also created further North-South inequity. While the North has given most market, policy and political incentives and most of the steering in the international biofuel agenda, Southern countries reveal much more vulnerable to the impacts of large-scale biofuel expansion — as the geography of deforestation, food insecurity, and human rights violations shows. That coupled with lack of participation of the affected populations and inclusion of their views on the issue creates yet another worrisome North-South imbalance.

My article concludes that, without a governance framework that includes the most affected stakeholders and takes on board the multiple existing views on biofuels, there will be no countervailing powers to represent the weaker interests in society, such as those of the rural poor.

The full article can be accessed here.

by MJIL

Professor Osofsky’s response to my article is convincing and her exploration of the gaps in my earlier discussion of climate reparations is welcome — in fact, it is encouraged. The hope in writing an article on climate reparations was to investigate seriously alternate avenues for remedy for the climate vulnerable and encourage creativity across scales, between novel claimants, and for individuals or billions, in careful response to their current and forecasted environment. It is the first brush stroke on a quite large, and perhaps expanding, canvas. What should not be lost, however, is the unique reason why a reparations approach is imperative.

The greatest value of a reparations effort is to center the moral issues at base and foster the key elements of a just state of affair. Trust and recognition of harm are key steps to reaching that just state of affairs. The global negotiations under the UNFCCC and other parallel processes have been marked by distrust between nations as well key stakeholders. Further, while Professor Osofsky is correct in citing the very real and positive outcomes of climate-related litigation, trust-building is not a core element of the litigation process — in fact, trust is often its first casualty. Regarding recognition, the climate vulnerable have been relatively invisible, with a notable exception being their strong presence within the COP15 negotiation halls and without. Their relative absence in the major modes of climate problem-solving to date, however, makes the threats to their very existence even more haunting now. Reparations for the climate vulnerable would aim to recognise the humanity of each individual subject to the harms of excess emissions, foster civic trust — between large emitters of any stripe and the most vulnerable — and manifest social solidarity. As I have structured it, those are its goal and the test of its success.

Building trust between the greatest emitters and the most vulnerable is a challenge at its most acute in the climate change context. Utilising an alternative mechanism, like reparations, as an instrument of justice can establish or restore civic trust across borders and institutions. The reparative approach is a vital addition because, unlike its necessary counterparts, it can ensure a more complete kind of repair — one that includes a mutual commitment to shared norms and values and lays the foundation for greater collaboration, rather than acrimony and embitterment, as we press ahead in addressing the challenge.

Now, it would be a mistake to believe that this early articulation of a climate reparations framework can guarantee a total panacea. It is, I believe, an important start — one that benefits from critique, amendment, and refinement. The product of a successful reparative approach will be transformative for global communities and for that reason requires serious collaboration.

by MJIL

[Hari M. Osofsky is Associate Professor at Washington and Lee School of Law.]

In Climate Reparations, Professor Maxine Burkett makes a compelling case for viewing climate justice problems though a reparative lens. She articulates thoughtfully the barriers to achieving meaningful justice under existing frameworks and proposals, as well as the profound ethical dilemmas posed by the inequities regarding emissions, impacts, and adaptation. Her article makes a helpful contribution to efforts to conceptualize climate justice by theorizing how a reparations model might apply to climate change, and then applying it to a case study of the relationships among small island states and the United States.

My response to Professor Burkett’s article focuses on two future directions for the conversation about climate justice in light of this piece. Specifically, her article raises issues about the role of litigation and about the multiscalar nature of climate change which bear upon the possibilities and limitations of efforts at reparation. This response explores how further exploration these issues might supplement Professor Burkett’s analysis.

First, with respect to litigation, the article acknowledges current the role of litigation in making climate justice arguments, particularly in light of gaps in the international treaty regime. However, it argues that these actions are not leading to adequate action, both because most actions do not focus on vulnerable populations and because courts hesitate to take action on behalf of these populations as a result of these actions. The article then frames its argument for a reparations approach by arguing that while “divisive legal claims might be the best of many far less coordinated alternatives … none of these alternatives is optimal from the perspective of the climate vulnerable or the major polluters.”

In my view, litigation could play a helpful role in the development of the reparations scheme Professor Burkett envisions, and should be viewed as an ongoing process supplementary to reparations efforts. Litigation — even when not focused on harms to vulnerable populations — has both formal and informal impacts which can lead to improved mitigation efforts, an improvement critical to Professor Burkett’s reparations scheme. Through changing the law, putting pressure on major emitters and those who regulate them, and raising public awareness, these cases can lead to tangible emissions reductions and focus the public and policymakers on the plight of climate victims. Moreover, by providing a space for the formal expression and resolution of conflict, these cases play an important role in addressing the differences that cooperation and negotiation models cannot fully capture. For example, the U.S. Supreme Court opinion in Massachusetts v. EPA is resulting in administrative action under the Clean Air Act, and in so doing, is providing the basis for U.S. motor vehicle greenhouse gas emissions reduction even as climate legislation stalls. It also is helping to foster public acceptance of the problem, creating pressure for additional national and international action, and providing a vehicle for leader states and cities, together with interested nongovernmental organizations, to move the U.S. greenhouse gas emissions reduction strategy forward. While such a case does not directly assist climate victims, it helps to achieve the mitigation needed in Professor Burkett’s model.

Second, while Professor Burkett’s article acknowledges the multiscalar dimensions of climate change and resulting justice problems, its reparations scheme largely focuses on dynamics among nation-states. Such a core focus seems appropriate in many respects, since nation-states are the primary subjects and objects of international law and as a result, serve as the primary formal actors in international treaty negotiations. However, a reparations scheme that fully captures the climate justice problem might focus as well on major corporate emitters, which are generally transnational entities, incorporated in a particular state or province within a nation-state and interacting with a wide range of governmental actors at different levels around the world. Similarly, it might target the differences with respect to both emissions and impacts/adaptation between urban and rural areas, especially in light of the major urbanization taking place globally; cities, in their urban planning, will play a crucial role in implementation of reparations schemes, both because they account for a significant percentage of emissions and because of the growth of mega-cities in potential disaster areas. An effective reparations scheme might need to reach beyond the formal interaction among nation-states, which largely excludes these actors from the negotiating table and cannot fully capture the dynamics among them, to create a more integrative approach.

Overall, Professor Burkett’s article provides an important step forward in re-envisioning international approaches to climate justice. It provides a useful conceptual framework for developing reparations schemes, which given the dire state of international negotiations generally and with respect to climate justice in particular, are unfortunately only becoming more relevant.

by MJIL

[Associate Professor Maxine Burkett is the Director of the Center for Island Climate Adaption and Policy at the William S. Richardson School of Law, University of Hawai’i at Manoa.]

With the uncertain — and deeply disappointing — conclusion of the COP15, one thing has become crystal clear: states and vulnerable communities must explore alternative avenues to address the climate crisis and its uneven effects. In my article, I introduce a theory of climate reparations to meet the great and disproportionate injuries that will result from climate change.

The current and anticipated climate impacts demonstrate a grand irony: those who will suffer most acutely are also those who are least responsible for the crisis to date. That irony introduces a great ethical dilemma, one that our systems of law and governance are ill‑equipped to accommodate. Indeed, attempts to right this imbalance between fault and consequence have resulted in a cacophony of political negotiation and legal action between and amongst various political scales that have yielded insufficient remedies, if any. In the absence of a substantial commitment to remedy the harm faced by the climate vulnerable (those set to suffer first and worst), reparations for damage caused by climate change can provide a comprehensive organising principle for claims against the most responsible while placing key ethics and justice concerns — concerns that have been heretofore woefully under-emphasised — at the centre of the climate law and policy debate. In other words, a reparations frame can organise communities of victims behind a common articulation of the violation.

In the past year, calls for climate reparations have become more numerous. They have meant one thing, however — mandatory compensation to developing nations for the increasingly devastating effects of CO₂ emissions. In recent decades, the scope and nature of reparations claims have, generally, shifted dramatically. Rather than serving merely as financial compensation to the victor for past damages suffered, reparations efforts now have a character and process with inherent value. Not simply looking to the past, reparative efforts are also forward-looking as they attempt to honour the past. And rather than fixate on actual remedy, the realisation of moral repair and social solidarity is as much bound up in the process as it is in the result. In sum, a reparations effort has both ‘ends’ and ‘means’ value.

A successful reparations effort can result in aggressive mitigation from the developed world while also ensuring long-term support for critical adaptation measures for the most vulnerable. Most importantly, however, reparations efforts can engage the globe — particularly those in the developed world — in the great ethical challenge posed by climate change and the developed world’s lacklustre response. For example, public outrage in the United States at the collapse in livelihood of hundreds of millions is virtually non‑existent. A discussion distinct from ‘caps’, ‘trades’, and ‘costs to the average consumer’ will help to illuminate suffering of the climate vulnerable, and the developed world’s understanding of its own responsibility. A reparations effort can shine that light.

For any reparative scheme to be truly successful, however, the remedy must introduce mechanisms that limit the ability of the perpetrator to repeat the offending act. In the case of climate change, the developed world needs to rapidly abandon its use of fossil fuels and replace that usage with materials that are inexhaustible and, at the same time, do not produce life‑endangering externalities. The reparations effort, beyond the tangible remedies that result, emerges as a valuable avenue for truly grappling with the profound moral problems that climate change has introduced. If done effectively, reparations, unlike the existing remedial mechanisms, can foster social solidarity and a just state of affairs — an outcome desperately needed as humanity faces its greatest challenge.

The full article can be read here.

by MJIL

We are delighted to introduce the inaugural online symposium issue of the Melbourne Journal of International Law (’MJIL‘) hosted by Opinio Juris. We would like to thank Opinio Juris, and Kevin Jon Heller in particular, for inviting us to participate in this partnership. We hope that this partnership contributes to the global reach of Opinio Juris by providing an Asia-Pacific perspective on international law. We hope to spark some interesting and lively discussions in the coming week.

This week, we will feature two pieces published in our most recent issue — issue 10(2) — which contains a symposium feature, entitled ‘Climate Justice and International Environmental Law: Rethinking the North­–South Divide’. The symposium intends to analyse the intersections between law and emerging ideas of climate justice, and how international environmental law is shaped by and in turn reshapes (or fixates, or interrogates) our understandings of the North–South divide. As we state in the symposium’s Foreword:

In focusing on ‘climate justice’, the symposium places questions of global equity and distributional justice at the core of international debates around climate change mitigation and adaptation. While the UNFCCC principle of ‘common but differentiated responsibilities’ presently recognises the differing historical state responsibilities for climate change as well as their varying capacities for mitigation and adaptation, this symposium seeks to complicate the ‘easy’ dichotomies of North/South, developed/developing and First World/Third World. In doing so, some central questions persist: Is it problematic to conceptualise global justice with reference to such binary categorisations (and what does this overlook) or is this terminology nonetheless useful in providing a language for thinking through unequal distributions of material wealth and global power relations? Can justice be found in present legal frameworks, through, for example, the ‘common but differentiated responsibilities’ principle or the forms of collaboration facilitated through the increasingly criticised Kyoto flexibility mechanisms? And ultimately who (or what) will bear the cost of global action (or inaction)?

Our first contributor this week is Associate Professor Maxine Burkett, Director of the Center for Island Climate Adaption and Policy at the William S. Richardson School of Law, University of Hawai’i at Manoa, who will discuss her article entitled ‘Climate Reparations‘. Burkett argues that climate change affects and will continue to affect vulnerable communities in the global South most acutely, especially the poor and island states. This, for Burkett, presents a great ethical dilemma for the global community and the developed world in particular, which has historically accounted for a disproportionate use of fossil fuels. In her article, Burkett thus develops a legal framework of climate reparations to redress the vast disparity of suffering and displacement caused to the ‘climate vulnerable’ by climate change. A reparations frame, for Burkett, has the potential to be profoundly morally transformative, as the developed world must assume responsibility for its past destructive behaviour and the consequences that flow therefrom and refrain from any such conduct in the future. The respondent will be Associate Professor Hari Osofsky, Washington and Lee University School of Law.

Our second contributor is Mairon G. Bastos Lima, PhD researcher at the Institute for Environmental Studies, Vrije Universiteit Amsterdam. Bastos Lima’s article, entitled ‘Biofuel Governance and International Legal Principles: Is It Equitable and Sustainable?‘, concerns environmental and social consequences that flow from the growth in alternative fuel sources, which are held up as a viable mitigation strategy for climate change. In particular, he focuses on the questions of global equity, using the Rio Declaration on Environment and Development as a framework for accessing the effectiveness of the present biofuel framework. Finding the current biofuel governance efforts to be illegitimate, non-transparent and inequitable, Bastos Lima argues that a more rigorous and democratic biofuel governance regime is required to give voice to the less powerful, in particular, the affected communities in the global South. The respondent will be Professor C. Ford Runge, Distinguished McKnight University Professor of Applied Economics and Law at the University of Minnesota.

We hope that you enjoy and participate in the upcoming discussion around the meaning of climate justice and the forms of legal response climate justice necessitates.

Information on our submissions process, publication policy and past issues can be accessed here. If you would like any further information about the Journal, please contact the Editors at law-mjil [at] unimelb [dot] edu [dot] au.

Laura Bellamy, Sara Dehm and Jeremy Leung

2009 Editors