Jeffrey McGee

The Asia–Pacific partnership on clean development and climate: A complement or competitor to the Kyoto protocol?

The Asia–Pacific Partnership on Clean Development and Climate (AP6) has been marketed as an innovative new approach to international climate change policy that is complementary to the existing Kyoto regime. It is important to closely examine these claims of complementarity, given the two nations that were central to the formation of the AP6, the United States and Australia, have both expressly repudiated the Kyoto process. The difficulty involved in this exercise is in separating political rhetoric regarding complementarity from the reality of how the AP6 will likely impact upon the effectiveness of the Kyoto regime. This article discusses the AP6 and the various claims as to complementarity with Kyoto made during its formation in July 2005 and inaugural meeting in January 2006. For the purpose of analyzing these claims of complementarity five key features of the content of the AP6 are identified for comparison with Kyoto. Stokkes theory of regime interplay is used to assess how each of the five key features of the AP6 will likely impact upon the effectiveness of Kyoto. This analysis indicates that at fundamental levels of regime interaction the AP6 has significant potential to obstruct the effectiveness of Kyoto as currently framed. The conclusion to be drawn from this analysis is that the claims by AP6 parties as to complementarity with Kyoto are only defensible at a shallow ideational level with significant obstruction likely at more fundamental levels of regime interaction. The reality is that the AP6 offers a competing regime in international climate change policy that at the very least has significant potential to affect the future shape of Kyoto.

Legitimacy in an Era of Fragmentation: The Case of Global Climate Governance

Studies grounded in regime theory have examined the effectiveness of “minilateral” climate change forums that have emerged outside of the UN climate process. However, there are no detailed studies of the legitimacy of these forums or of the impacts of their legitimacy on effectiveness and governance potential. Adopting the lens of legitimacy, we analyze the reasons for the formation of minilateral climate change forums and their recent role in global climate governance. We use Karlsson-Vinkhuyzen and Vihmas analytical framework for international institutions to examine three minilateral climate forums: the Asia-Pacific Partnership, the Major Economies Meetings, and the G8 climate process. These forums have significant deficits in their source-based, process-based, and outcome-based legitimacy, particularly when compared to the United Nations Framework Convention on Climate Change. If assessed purely on grounds of effectiveness, the minilateral forums might be easily dismissed as peripheral to the UN climate process. However, they play important roles by providing sites for powerful countries to shape the assumptions and expectations of global climate governance. Thus, the observed institutional fragmentation allows key states to use minilateral forums to shape the architecture of global climate governance.

Cooperative governance: one pathway to a stable-state economy

Exponential increases in material and energy use globally threaten Earth System stability in many ways including through climate change. Yet societies remain committed to economic growth, reflected in the way publicly traded corporations are legally obliged to maximise shareholders’ profits. In contrast, businesses governed cooperatively by members, i.e. democratically and transparently, may be better suited to operating in an ecologically sustainable way, enacting their members’ ethical commitments. Combining a complex adaptive systems approach with community economies theory, we argue that cooperatives offer a significant transformative opportunity to resocialise and repoliticise economies away from the growth imperative. Cooperative governance is consistent enough with currently dominant neoliberal governance (itself closely aligned with economic growth) to gain initial policy traction. Ultimately, we seek an overall shift to a stable-state economy – a global economy whose operation sustains rather than threatens the familiar (to humans and our civilisations) stable state of the Earth System.

The impact of the US retreat from the Paris Agreement: Kyoto revisited?

ABSTRACT The United States’ decision to withdraw from the Paris Agreement (pending possible re-engagement under different terms) may have significant ramifications for international climate policy, but the implications of this decision remain contested. This commentary illustrates how comparative analysis of US participation in multilateral environmental agreements can inform predictions and future assessments of the decision. We compare and contrast US non-participation in the Kyoto Protocol and the Paris Agreement, focusing on four key areas that may condition the influence of US treaty decisions on international climate policy: (i) global momentum on climate change mitigation; (ii) the possibility of US non-participation giving rise to alternative forms of international collaboration on climate policy; (iii) the timing and circumstances of the US decision to exit; and (iv) the influence of treaty design on countries’ incentives to participate and comply. We find that differences across the two treaties relating to the first three factors are more likely to reduce the negative ramifications of US withdrawal from the Paris Agreement compared to the Kyoto Protocol. However, the increased urgency of deep decarbonization renders US non-participation a major concern despite its declining share of global emissions. Moreover, key design features of the Paris Agreement suggest that other countries may react to the US decision by scaling back their levels of ambition and compliance, even if they remain in the Agreement. Key policy insights Increasing global momentum on mitigation since 1997 means that US withdrawal from the Paris Agreement is potentially less damaging than its non-participation in the Kyoto Protocol Despite the declining US share of global emissions, greater urgency of deep decarbonization means that the non-participation of a major player, such as the US, remains problematic for global cooperation and achieving the Paris Agreement’s goals Differences in the design of the Kyoto Protocol and Paris Agreement suggest that US non-participation is more likely to prompt reluctant countries to stay within the Paris framework but reduce levels of ambition and compliance, rather than exit the Agreement altogether

REDISCOVERING LAW STUDENTS AS CITIZENS Critical thinking and the public value of legal education

In a series of publications over the last decade, Australian National University Professor Margaret Thornton has documented a disturbing change in the nature of legal education. This body of work culminates in a recently published book based on interviews with 145 legal academics in Australia, the United Kingdom, New Zealand and Canada. In it, Thornton describes a feeling of widespread unease among legal academics that society, government, university administrators and students themselves are moving away from viewing legal education as a public good which benefits both students and society. Instead, legal education is increasingly being viewed as a purely private good, for consumption by the student in the quest for individual career enhancement.

The Asia-Pacific partnership and market-liberal discourse in global climate governance

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Geoengineering the oceans: an emerging frontier in international climate change governance

ABSTRACT International climate change policy is increasingly reliant upon future large-scale removal and sequestration of greenhouse gases from the atmosphere. Assumptions on the development of ‘negative emissions’ technologies are built into recent IPCC emissions modelling and the 2015 Paris Agreement. Terrestrial proposals, such as bioenergy with carbon capture and storage, may be of limited benefit as the estimated land required would be vast and may negatively impact upon food security. The worlds oceans could play an important role in meeting international climate change targets. ‘Marine geoengineering’ is being proposed to enhance the oceans capacity to sequester emissions and enhance the Earths albedo. This article draws on discussions at a recent Marine Geoengineering Symposium held at the University of Tasmania to highlight prominent marine geoengineering proposals and raise questions about the readiness of the international law system to govern further research and implementation of these ideas.

Framing Australian Antarctic policy: the 20-year Antarctic plan and beyond

ABSTRACT Climate change and new patterns of human use are bringing new governance challenges to Antarctica and the Southern Ocean. Over the past two years, the Australian Government has carried out a major review of Antarctic policy and released the Australian Antarctic Strategy and 20 Year Action Plan. It is therefore both a timely and opportune moment to take stock of policy debates surrounding Australian policy on the Antarctic and the Southern Ocean. Using interpretative policy analysis, we examine documents contributing to the formulation of the Australian Antarctic Strategy and 20 Year Action Plan. From this material, we identify four dominant frames in recent policy discourse regarding Australian Antarctic policy: (i) ‘protecting Australia’s national interest’, (ii) ‘protecting and/or using resources of the Southern Ocean’, (iii) ‘leading international cooperation’ and (iv) ‘leading scientific research’. Our analysis indicates there is significant plurality of frames used by stakeholders of Australian Antarctic policy. Our analysis also identifies a common thread of ‘bifocalism’ across these four frames which seeks to reconcile Australian territorial claims with the internationalism required for furthering the Antarctic Treaty System.

Marine protected areas: a spark for contestation over ‘rational use’ of Antarctic marine living resources in the Southern Ocean?

ABSTRACT Over the last decade, there have been several proposals attempting to establish marine protected areas (MPAs) within the Southern Ocean under the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention). However, despite much work undertaken by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and its Scientific Committee, only one MPA has been designated near the South Orkney Islands in 2009. More recent MPA proposals have been contested with some CCAMLR members claiming that ‘rational use’ of the CAMLR Convention area (as it appears in the objects clause of the CAMLR Convention) does not support the establishment of such MPAs. This article shows how international law rules on treaty interpretation might assist in resolving such disputes. We also suggest that recent interpretative disputes over the meaning of ‘rational use’ of the CAMLR Convention area are consistent with wider value conflicts over use of marine resource activities in the Southern Ocean. These value conflicts may need to be managed diplomatically in order to avoid escalation.

Does the ‘No-Harm’ Rule Have a Role in Preventing Transboundary Harm and Harm to the Global Atmospheric Commons from Geoengineering?

Solar Radiation Management (SRM) geoengineering poses a significant risk of transboundary and global atmospheric harm. How might international law regulate the future use of SRM? We explore how the ‘no-harm rule’ from customary international law might contribute to the international governance of future attempts at SRM. The no-harm rule imposes a legal duty on states to prevent significant damage across borders and in the global commons. Existing geoengineering literature assumes that, as the international law system lacks a mandatory enforcement mechanism, the no-harm rule will play little or no role in the governance of SRM. We challenge this assumption by focusing on the possibilities of compliance with the no-harm rule through bolstering its legitimacy and sense of legal obligation. We explain how Brunnee and Toope’s theory of ‘interactional international law’ might provide a useful lens for developing the no-harm rule in this way to independently respond to the risks posed by SRM.