![]()
1 Cultural legitimacy and international law and policy on climate change: an introduction
Climate change poses fundamental and varied challenges to all communities across the globe.1 The adaptation and mitigation strategies proposed by governments and non-governmental organisations (NGOs) are likely to require radical and fundamental shifts in socio-political structures, technological and economic systems, organisational forms, and modes of regulation.2 The sheer volume of law and policy emanating from the international level makes it uncertain which type of regulatory or policy framework is likely to have a positive impact. As a result, climate change is not just an environmental problem requiring technical and regulatory solutions; it is a cultural arena in which a variety of stakeholders â state agencies, firms, industry associations, NGOs and local communities â engage in contestation as well as collaboration over the form and substance of evolving regimes of governance.3 The success or failure of proposed measures will depend on their acceptability within the local constituencies within which they are sought to be applied. Therefore, there is an urgent need to better comprehend and theorise the role of cultural legitimacy in the choice and effectiveness of international legal and policy interventions aimed at tackling the impact of climate change. In this regard, it is crucial to recognise that legitimacy critiques of international climate change regulation have the capacity to positively influence policy trends and legal choices.
Legitimacy critiques of international law are not new.4 However, the application of this scholarship to the emerging regulatory and policy framework for climate change is still in its infancy.5 It is with in mind that the Surrey International Law Centre and the Environmental Regulatory Research Group at the University of Surrey organised an interdisciplinary international conference entitled âCultural Legitimacy and the International Law and Policy on Climate Changeâ in June 2012 to bring together scholars from across different disciplines to discuss a number of themes concerning cultural legitimacy and climate change. These themes included cultural legitimacy as a tool of analysis within international law generally and international environmental law in particular; climate change institutions and the role of local change agents and institutions; cultural differences in policy and legal instrument choice towards climate change; and strategies for enhancing the cultural legitimacy of mitigation and adaptation to climate change, to mention but a few. This edited book carries ten papers from the conference, works that begin to define how considerations of cultural legitimacy impact regulatory frameworks in favour of responsible climate change stewardship. The first part of the book is largely theoretical and lays down the competing perspectives on cultural legitimacy vis a vis climate change. The second part considers the implications of cultural legitimacy in the context of actual case studies drawn from various jurisdictions around the world.
In Chapter 2, Olanrewaju Fagbohun provides an analytical framework for the cultural legitimacy of mitigation and adaptation to climate change. Olanrewajuâs central thesis is that although it is crucial to develop international governance frameworks to tackle climate change; it should be appreciated that most environmental problems are local in scope and as such decisions made at that level are most likely to match citizensâ aspirations and therefore have a greater chance of success.
In Chapter 3, Thoko Kaime builds on this meta-analysis and proposes a discursive framework for embedding legitimacy-enhancing attributes onto climate change legal and policy institutions. Borrowing from perspectives in technological studies and transitions theory, the chapter argues that the cultural legitimacy of efficacious climate change regulatory frameworks is the outcome of discursive struggles between those who oppose drastic changes to emissions pathways and those champion major redrawing of emissions and consumptive patterns to address climate change. If the argument is to be won in favour of those in support of major changes to arrest climate change, it is imperative that domestic constituencies deliberately adopt strategies that increase the incidence of legitimacy enhancing features within input, throughput and output stages of legal, policy and institution design.
In Chapter 4, Kirk Junker, on the other hand, escapes the institutional focus of Chapters 2 and 3 and presents a philosophical critique of the idea of legitimacy and its impact of climate change rules. Observing that mitigating climate change and adapting to its effects are problems that require much more than science-based or legally based rationality to be resolved, the chapterâs central thesis is that without a shared cultural identification in the problems and solutions to climate change, an effective governance regime is unlikely to emerge. In attempting to address this conundrum, Junker proposes legitimation through education, and in that way attempts to escape enquiries into legitimacy after the fact. However, since many institutions that we are going to rely on in tackling climate change were constructed long before preoccupation with legitimacy in regulatory frameworks was considered a key issue, it is still necessary to undertake such enquiries if only to establish durable transitions into efficacious regulatory systems.
Part II of the book shifts the focus from theoretical considerations and shines a light on grounded considerations of legitimacy through the examination of case studies. In Chapter 5, Carola Betzold and AnaĂd Flesken open with an account of indigenous peoplesâ experiences of the international policy and law-making processes in the context of biodiversity and climate change. Their chapter observes that indigenous peoples are not only among the populations most vulnerable to the adverse effects of environmental problems like climate change, but more crucially that response measures, such as carbon sink projects, may also adversely affect their communities. Although indigenous peoples organisations (IPOs) have responded to these pressures and now participate in international environmental policy making, the level of their participation differs starkly in accordance with the issue being examined. Betzold and Flesken observe that whilst IPOs are well represented in the negotiations under the Convention on Biodiversity (CBD), they remain sidelined in the negotiations under the United Nations Framework Convention on Climate Change (UNFCCC). This is the case despite the fact that indigenous peoples have voiced concerns about climate change and climate politics in international fora. This lack of voice is compounded by the fact that indigenous peoples as actors in international environmental politics have so far received scant academic attention. This contribution begins to fill this gap by focusing on the institutional framework in which IPOs act. Drawing on social movement theory and literature on domestic lobbying, the authors develop a framework that allows the systematic comparison of indigenous participation in the CBD and UNFCCC negotiations. Based on new data from interviews as well as existing documentation, the analysis points to important differences in the institutional environment of these two negotiations. Most importantly, the authors relate the analysis of this data to the timing and degree of recognition of indigenous peoples not merely as stakeholders but as legitimate political actors.
In Chapter 6, Lucy Brown and Carl Dalhammar continue the theme of actor legitimation through political and legal processes. The chapter centres on the mounting concern that we cannot solve our global climate change and sustainability challenges merely through strategies based on growth, even where such growth is perceived to be âgreenâ. The authors observe that current consumption-orientated policies and tools for sustainability can contribute to comparatively greener consumption patterns, but are unlikely deliver a less resource-intensive economy. Yet, despite the need to urgently address consumption levels, it is no easy task for governments. This is the case because sufficiency policies lack the necessary legitimacy since they challenge the dominant market paradigm and would therefore be heavily resisted by many actors. Accordingly, the authors suggest that democracies must aspire to deliver increased sufficiency without resorting to policies considered as authoritarian, or an infringement on liberty. This requires increased solidarity between different societal actors at both the national and the international levels. But more importantly, the authors argue, it also requires a strong grassroots contribution. Voluntary social movements with the aim of reducing material consumption and high finite resource dependency, such as ecological footprint reduction projects, are examples of local community movements that are crucial to the success of certain types of climate change policies and regulation, both at a national and international level. They imbue cultural legitimacy to regulatory frameworks for sustainability and are fundamental to addressing global climate change. The contribution unpacks these issues through the examination of local, voluntary social movements in relation to the introduction of sufficiency policies, such as personal carbon allowance schemes and tradable energy quotas. The core argument raised is that where people are voluntarily committed to making the necessary reduced carbon lifestyle changes, it is likely that there will be already a foundation for the implementation and broader political acceptability of sufficiency policies.
The conclusions of this chapter seem to confirm the findings of Beth Savan and Zannah Matson in Chapter 7, who observe that, to date, the adoption of renewable energy technologies and efficiency programs have largely failed to bring about the needed reduction in greenhouse gas emissions and resource consumption. While international agreements and national and regional policies, regulations and financial instruments which promote resource conservation and emissions reduction have had some success, especially in Europe, this has not been the case elsewhere. Moreover, many Western governments are currently committed to reducing the role of government in the economy and in society. Their contribution therefore seeks present evidence to support another approach to making these changes. Based on the work piloted by the Sustainability Office at the University of Toronto, the authors explore the role that behaviour change programmes can play in building persistent new habits, enduring social norms and an institutional culture of sustainability regarding our consumption and the scarcity, pollution and emissions that result from it. This ground-up approach, it is argued, is more likely to result in institutions and regulatory frameworks that are not only legitimate but also resilient.
In Chapter 8, Margot Hurlbert continues with the theme of rule legitimation and democratic participation in climate change institution- making. In Margotâs contribution, she explores the construction of climate change risks amongst stakeholders in the South Saskatchewan River Basin (SSRB). The chapter is based on a set of interviews with members of water governance institutions and local advisory watershed committees in a study on water governance in the SSRB in Alberta and Saskatchewan in 2007â08. In the context of these interviews, information was obtained relating to the perceived risk of climate change or climate variability and the associated impacts on water resources and whether plans, actions or amendments to laws were anticipated to respond to climate change or climate variability into the future. The process of local contextualisation and knowledge of the risk associated with changes to climate conditions is then compared to the legislation and policy on climate in 2009. Relying on these grounded narratives, Margot finds that increased local community participation in environmental reviews and approvals is considered an absolute essential by users; but not so much the creation of more laws, regulations and institutions. This discovery has led to a grounded approach in interventions to encourage tailored measures in adaptation and mitigation.
In Chapter 9, Jenni Kauppila links democratic participation in climate change policy with evidence-based interventions. Jenni reports on a study that sought to shed light on climate policy processes in Finland, Brazil, India and Tanzania, and the possibilities of people in these case-study countries have to influence international climate negotiations. The studyâs main goal was to identify and implement mechanisms through which the marginalised groups in these countries can be empowered to participate in climate negotiations. Utilising the tools offered by action research methodologies, the study identified the characteristics of âinsiderâ and âoutsiderâ NGOs and social movements in the climate negotiations and amplified the legitimacy challenges of insider NGOs representing the marginalised groups such as indigenous people, women and youth. The chapterâs key contribution lies in its grounded assessment of the challenges related to working with radically different timescales, with different ways of framing the climate change with limited resources. An innovative solution introduced investigates the possibilities of key persons working as contact points between the insiders and outsiders as a partial solution to increase the effectiveness and legitimacy of transnational advocacy networks.
Taking a philosophical approach to citizen experience of, and participation of rule-making, in Chapter 10, Pravin Jeyraj argues that a culture of recycling cannot emerge unless there exists a culture of responsibility. Adopting Hegelian constructs of Recognition, Pravin analyses English laws on recycling and domestic waste and measures their effectiveness based on data obtained from households. Although the chapter recognises libertarian paternalism as largely holding true, it concludes that the law does not change behaviour in and of itself, but rather that it enables household to be environmentally responsible and recycle by changing the environment and giving households a reason to respond and change habitual or cultural behaviour. Consequently, recognising the cultural imperatives of a community in the design of legal interventions may increase the likelihood of such measures having impact.
Completing this collection is Chapter 11 from Melissa Bollman and Scott Hardy. The chapter presents a case-study of Costa Ricaâs 15-year-old payments for its environmental services programme, known locally as Pagos de Servicios Ambientales. Utilising an institutional analysis and development framework, the study finds that national and international priorities are indeed influencing the local level rules for the programme. The deliberate framing of international concerns as local issues has enabled the programme to contribute both to domestic and international aspirations for climate change mitigation, whilst maintaining its legitimacy to local stakeholders.
* Thoko Kaime is a Lecturer in International Environmental Law at the School of Law, University of Leicester.
1 IPCC, Fourth Assessment Report, Working Group I, Summary for Policymakers (Cambridge: Cambridge University Press, 2007); OECD, Climate Change: Meeting the Challenge to 2050 (Brussels: OECD, 2008).
2 Ibid.
3 Boykoff, M, Goodman, M and Curtis, I, âCultural politics of climate change: Interactions in the spaces of everydayâ, Environment, Politics and Development Working Paper Series, Department of Geography, Kingâs College London (2009); OâRiordan, T and Jordan, A, âInstitutions, climate change and cultural theory: Towards a common analytic...
