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CARBON COLONIALISM OR CLIMATE JUSTICE? INTERROGATING THE INTERNATIONAL CLIMATE REGIME FROM A TWAIL PERSPECTIVE

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This article provides a TWAIL critique of the United Nations Framework Convention on Climate Change [UNFCCC] in the aftermath of the 21st Conference of the Parties in Paris in December 2015. It engages with criticisms from the social and climate justice movement that the UNFCCC is promoting forms of “carbon colonialism” or “CO2lonialism” through its support for and establishment of international carbon trading and offsetting strategies. It proposes that using a jurisdictional approach to examine how the authority of the UNFCCC is authorized can provide key analytical tools to understand the regime. The article examines the way in which the regime is authorized by an invocation of “common concern” even as it promotes policies that marginalize the interests of those already most vulnerable to climate change. It concludes by suggesting that climate justice movements already are building different forms of commonality and that these alternative commonalties represent important new ways of thinking about global action on climate change.
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(2016) 33 Windsor Y B Access Just 129
CARBON COLONIALISM OR CLIMATE JUSTICE? INTERROGATING THE
INTERNATIONAL CLIMATE REGIME FROM A TWAIL PERSPECTIVE
Julia Dehm*
This article provides a TWAIL critique of the United Nations Framework Convention on
Climate Change [UNFCCC] in the aftermath of the 21st Conference of the Parties in
Paris in December 2015. It engages with criticisms from the social and climate justice
movement that the UNFCCC is promoting forms of “carbon colonialism” or
“CO2lonialism” through its support for and establishment of international carbon
trading and offsetting strategies. It proposes that using a jurisdictional approach to
examine how the authority of the UNFCCC is authorized can provide key analytical tools
to understand the regime. The article examines the way in which the regime is authorized
by an invocation of “common concern” even as it promotes policies that marginalize the
interests of those already most vulnerable to climate change. It concludes by suggesting
that climate justice movements already are building different forms of commonality and
that these alternative commonalties represent important new ways of thinking about
global action on climate change.
L’auteure de cet article fait une critique, à travers le prisme de TWAIL, de la
Convention-cadre des Nations Unies sur les changements climatiques [CCNUCC] au
lendemain de la 21e Conférence des Parties, tenue à Paris en décembre 2015. Elle ajoute
aux reproches formulés par le mouvement de justice sociale et climatique, selon lequel la
CCNUCC fait la promotion de formes de « colonialisme du carbone » ou de
« CO2lonialisme » en appuyant et en établissant des stratégies internationales
d’échanges de droits d’émission de carbone et de compensation carbone. L’auteure
soutient qu’en étudiant selon une démarche juridictionnelle la façon dont le pouvoir de la
CCNUCC est approuvé, on se donne d’importants moyens analytiques pour comprendre
ce régime. L’auteure se penche sur la manière dont ce régime est approuvé par
l’invocation d’une « préoccupation commune » même lorsque cela favorise des politiques
qui marginalisent les intérêts de populations déjà très fragiles vis-à-vis des changements
climatiques. Elle conclut en laissant entendre que les mouvements en faveur de la justice
climatique s’emploient déjà à définir différents éléments communs et que ceux-ci
constituent de nouvelles manières de réfléchir sur les mesures mondiales en matière de
changements climatiques.
* Julia Dehm is a Postdoctoral Fellow at the Rapoport Center for Human Rights and Justice, University of Texas at Austin,
jdehm@law.utexas.edu. Many thanks to the people who participated in the TWAIL Conference in Cairo in February
2015 and the subsequent workshop at the University of Windsor in June 2015 where an earlier draft of this article was
presented and discussed. Many thanks also to the editors of this special edition, especially Usha Natarajan for helpful
guidance in clarifying the argument, as well as to the two anonymous referees. Finally, many thanks are also due to Adil
Hasan Khan for his comments on earlier versions of this article.
130 Windsor Yearbook of Access to Justice 2016
I. INTRODUCTION
At this critical moment for international climate regulation, the divergent assessments of the progress
made in international negotiations could not be starker. In December 2015, the first universal legally-
binding climate agreement, the “Paris Agreement”, was reached at the 21st Conference of the Parties
[COP] to the United Nations Framework Convention on Climate Change [UNFCCC].1 This Agreement
has both been heralded as a “historic agreement to combat climate change and unleash action and
investment towards a low carbon, resilient and sustainable future”,2 more pragmatically evaluated as
“the best that could be achieved at this place and time”,3 but also condemned by climate scientist James
Hanson as a “fraud”, “fake” and “bullshit”.4 Climate justice groups have also been highly critical of the
agreement, arguing that it “undermines the rights of the world’s most vulnerable communities and has
almost nothing binding to ensure a safe a livable future for future generations”.5 The existence of such
highly divergent perspectives on climate negotiations is not new. At the conclusion of the Lima COP in
December 2014, the press release by the Secretariat of the UNFCCC declared the world is “on track to a
new universal climate agreement”, with negotiations reaching a “new level of realism and understanding
about what needs to be done now”.6 In stark contrast, civil society groups made scathing assessments
that the outcomes of the Lima meeting7 failed people and planet,8 were a “travesty for climate justice”,9
and that the negotiations represented “an exercise in futility and delay”.10 More broadly, for over a
decade, grassroots movements for climate justice have been questioning not simply the adequacy of
1 Paris Agreement (opened for signature 22 April 2016 and entered into force 4 November 2016) [Paris Agreement], see
also, UNFCCC Decision 1/CP.21 “Adoption of the Paris Agreement”, FCCC/CP/2015/10/Add.1 (29 January 2016).
2 See United Nations Framework Convention on Climate Change, “Historic Paris Agreement on Climate Change: 195
Nations Set Path to Keep Temperature Rise Well Below 2 Degrees Celsius”, UN Climate Change Newsroom, (12
December 2015), online: <http://newsroom.unfccc.int/unfccc-newsroom/finale-cop21/>.
3 See Annalisa Savaresi, “The Paris Agreement: A Rejoinder”, EJIL: Talk! (16 February 2016), online:
<http://www.ejiltalk.org/the-paris-agreement-a-rejoinder/>.
4 Oliver Milman, “James Hanson, father of climate change awareness, calls Paris talks ‘a fraud’”, The Guardian, (12
December 2015), online: <http://www.theguardian.com/environment/2015/dec/12/james-hansen-climate-change-paris-
talks-fraud>.
5 Global Justice Now, “Final COP21 text a disaster for the world’s most vulnerable and future generations” (12 December
2015), online: <http://www.globaljustice.org.uk/news/2015/dec/12/final-cop-21-text-disaster-worlds-most-vulnerable-
and-future-generations>. For an assessment of the Paris Agreement see also Julia Dehm, “Reflections on Climate Action
in the Aftermath of Paris”, Human Rights in Ireland (12 January 2016), online: <http://humanrights.ie/economic-
rights/reflections-on-climate-action-in-the-aftermath-of-paris/>.
6 United Nations Framework Convention on Climate Change Press Release, “Lima Call for Climate Action puts the world
on track to Paris 2015”, (UNFCCC, 14 December 2014), online: <http://newsroom.unfccc.int/lima/lima-call-for-climate-
action-puts-world-on-track-to-paris-2015/>.
7 Lima Call for Climate Action, UNFCCC, Decision 1/CP.20, FCCC/CP/2014/10/Add.1 (2 February 2015).
8 See the statement by climate justice groups including Jubilee South and Friends of the Earth International: Climate and
Capitalism, “Lima Agreement Fails Humanity and the Earth” (14 December 2014), online:
<http://climateandcapitalism.com/2014/12/14/lima-agreement-fails-humanity-earth/>.
9 John Vidal, “Is the Lima Deal a Travesty of Global Climate Justice?”, The Guardian (15 December 2014), online:
<http://www.theguardian.com/global-development/2014/dec/15/lima-deal-global-climate-justice>.
10 Oscar Reyes, “At the Lima Climate Talks, it was groundhog day all over again”, Foreign Policy in Focus (18 December
2014), online: <http://fpif.org/lima-climate-talks-groundhog-day/>.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 131
action taken under the umbrella of the UNFCCC but also the kind of action being taken: its rationality,
its underlying neo-liberal market-driven ethos, and the ensuing distributional consequences. From a
climate justice standpoint, pertinent critiques have been made of the role played by the UNFCCC in
promoting “false solutions” such as carbon trading and carbon offset schemes that more deeply
perpetuate the inequalities at the heart of the climate crisis. Social movements have criticized these
schemes as an ineffectual response that abrogates the responsibility of key polluters whilst threatening
the livelihoods of those communities with limited responsibility for and high vulnerability to climate
change. For these reasons some have described the UNFCCC framework as promoting a form of
“carbon colonialism” or “CO2lonialism”. These are critiques that TWAIL, postcolonial and critical legal
scholars should take seriously. This article thereby interrogates the underlying dynamics of the
UNFCCC regime and analyzes how this regime directed toward addressing a “common concern”,11
namely anthropocentric climate change, is also having the effect of authorizing new forms of global
authority over parts of the Global South.
Part II explains civil society critiques of the UNFCCC regime, their concerns about climate justice,
and the origins of the terms carbon colonialism and CO2lonialism. In light of these concerns, Part III
critically assesses third world approaches to climate justice issues, considering TWAIL scholarship on
climate change as well the approaches of Third World states as articulated through the general principle
of common but differentiated responsibilities for the global environment. In light of some of the
shortcomings of existing approaches, Part IV proposes a jurisdictional approach, shifting focus to
understanding the climate regime’s mode of authorization and how this has been actualized in practice.
Paying attention to how an authorization in the name of a “common concern” is taken up, how it is
organized, and therefore also its effects and its exclusions, opens us up to thinking about the multitude
of ways in which a “common concern” can be ordered and which of these orderings may open and
which may foreclose possibilities for climate justice. Part V considers different ways in which a
“common concern” about anthropocentric climate change could be patterned, organized and actualized.
It suggests that alternative approaches to confronting the urgent task of climate mitigation are not only
envisioned but are being materialized, often through the bodies being put directly on the line to prevent
logging activities, coal-fired power stations or the expansion of fossil fuel extraction.12 I read into these
actions forms of jurisdictional practices seeking to bring into being different modes of organizing a
“common concern” and thereby of authorizing lawful relations.
II. THE PARIS AGREEMENT AND THE UNFCCC
The international community reached the Paris Agreement in December 2015 at COP21. The
Agreement has as its objective to “strengthen the global response to the threat of climate change, in the
11 See UNFCCC, 1771 UNTS 107 (opened for signature 9 June 1992, entered into force 21 March 1994), Preamble.
12 See for example Christine Hauser, “Greenpeace Activists Dangle from Oregon Bridge for 2nd Day to Protect Arctic
Drilling”, New York Times (30 July 2015), online: <http://www.nytimes.com/2015/07/31/us/greenpeace-activists-
dangle-from-oregon-bridge-for-2nd-day-to-protest-arctic-drilling.html?_r=1> and Jemima Garrett, “Pacific Climate
Warriors in Australia to protest coal industry”, ABC Online (Australia) (14 October 2014), online:
<http://www.abc.net.au/news/2014-10-13/pacific-climate-warriors-to-protest-newcastle-coal-port/5809392>.
132 Windsor Yearbook of Access to Justice 2016
context of sustainable development and efforts to eradicate poverty” including by “holding the increase
in global average well below 2°C above pre-industrial levels and pursuing efforts to limit the
temperature increase to 1.5°C above pre-industrial levels”.13 In order to achieve these objectives each
country was asked to communicate its own “nationally determined contributions” [NDCs].14 However,
various analysis have found that the 160 NDCs that cover 187 countries (the European Union made a
joint submission),15 if properly implemented would put the world on track for at least 2.7°C warming
above pre-industrial levels.16 Implementation of the commitments made in the NDCs would still see an
expected rise in greenhouse gas emissions of 8-18 percent by 2025 and 11-22 percent in 2030 from 2010
levels.17
Below I briefly discuss some of the sections of the agreement relevant to mitigation.18 Articles 5 and
6 of the Paris Agreement make reference to expanded carbon trading mechanisms. Further, over half the
NDCs state they intend to use or will consider using carbon-trading mechanisms,19 suggesting that
carbon trading will continue to be utilized as key tool for achieving climate mitigation.20 The Agreement
recognizes that “some Parties choose to pursue voluntary cooperation in the implementation of their
nationally determined contributions” and that such “cooperative approaches” may involve the “use of
internationally transferred mitigation outcomes”.21 Although the words “carbon markets” or “carbon
trading” are not explicitly mentioned, these provisions provide for the establishment of such
mechanisms as part of the Paris Agreement,22 whose rules, modalities and procedures are to be adopted
at a subsequent meeting.23 Article 5 of the Paris Agreement states that Parties “should take action to
conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases…including forests”.24
More specifically, the Agreement encourages Parties to “implement and support” the Reducing
13 Paris Agreement, supra note 1, Article 2(1)(a).
14 Ibid,, Article 4(2).
15 INDCs as communicated by Partiesonline: <http://www4.unfccc.int/submissions/indc/Submission%20-
Pages/submissions.aspx>.
16 Climate pledges will bring 2.7°C of warming, potential for more actionClimate Action Tracker, 8 December 2015,
online: <http://climateactiontracker.org/news/253/Climate-pledges-will-bring-2.7C-of-warming-potential-for-more-
action.html>; see also Synthesis report on the aggregate effects of the intended nationally determined contributions:
Note by the SecretariatFCCC/CP/2015/7 (30 October 2015) which found that [t]he estimated aggregate annual global
emission levels resulting from the implementation of the INDCs do not fall within least-cost 2°C scenarios by 2025 and
2030at para 39.
17 Ibid at para 34.
18 The Paris Agreement also has provisions on adaptation (Article 7), loss and damage (Article 8), climate finance (Article
9), technology development and transfer (Article 10), capacity-building (Article 11), transparency of action (Article 13),
periodic review (Article 14), compliance (Article 15) and others. However, the focus of this article is on mitigation.
19 Gareth Bryant, “Paris vs. Climate Change, or Paris vs. the Climate?”, Progress in Political Economy (3 December 2015),
online: <http://ppesydney.net/paris-vs-climate-change-or-paris-vs-the-climate/>.
20 See Steffen Böhm, “How emissions trading at Paris climate talks has set us up for failure”, The Conversation (14
December 2015), online: <https://theconversation.com/how-emissions-trading-at-paris-climate-talks-has-set-us-up-for-
failure-52319>.
21 Paris Agreement, supra note 1, Article 6(1) and (2)
22 Ibid at Article 6(4).
23 Ibid at Article 6(7).
24 Ibid at Article 5(1).
Vol. 33 (3) Carbon Colonialism or Climate Justice? 133
Emissions from Deforestation and Forest Degradation [REDD+] framework established under the
Convention.25 The REDD+ framework, established by a series of decisions at the Warsaw COP in
2013,26 seeks to provide economic incentives to address tropical deforestation and forest degradation in
the global South by allowing credits to be produced from such “result-based” actions.27
These carbon-trading mechanisms included in the Paris Agreement represent an expansion of the
“flexibility mechanisms” provided for in the Kyoto Protocol.28 The Kyoto Protocol provides for three
different types of “flexibility mechanisms”. Article 17 of the Protocol authorizes Annex B parties to
“participate in emissions trading for the purposes of fulfilling their commitments”, provided that such
trading is “supplemental” to domestic action.29 Kyoto does not simply allow for the trading of
allowances but provides for the production of allowances or credits from activities considered to
represent “saved” or “prevented” emissions. These two mechanisms are “Joint Implementation”,
authorized by Article 6,30 and the “Clean Development Mechanism” [CDM] authorized by Article 12.31
The former allows an Annex I party to “transfer to, or acquire from” emission reduction units that result
from “projects aimed at reducing anthropogenic emissions by sources” or “enhancing anthropocentric
removals by sinks of greenhouse gases” located in another Annex I country, provided that such projects
have the approval of all parties involved and they provide a “reduction in emissions by sources, or an
enhancement of removals by sinks, that is additional to any that would otherwise occur”.32 Similarly,
Article 12 authorizes the creation of carbon offset credits from projects located in non-Annex I countries
provided the emission reductions resulting from each project represent “real, measurable and long-term
benefits related to the mitigation of climate change”33 and that such reductions are “additional to any
that would occur in the absence of the certified project activity.”34 The objectives of the CDM are to
deliver globally-aggregate and symbiotic benefits; to assist in “achieving sustainable development” in
25 Ibid at Article 5(2).
26 These are: Decision 9/CP.19 “Work programme on results-based finance to progress the full implementation of the
activities referred to in decision 1/CP.16, paragraph 70”; Decision 10/CP.19 “Coordination of support for the
implementation of activities in relation to mitigation actions in the forest sector by developing countries, including
institutional arrangements”; Decision 11/CP.19 “Modalities for national forest monitoring systems”; Decision 12/CP.19
The timing and the frequency of presentations of the summary of information on how all the safeguards referred to in
decision 1/CP.16, appendix I, are being addressed and respected”; Decision 13/CP.19 “Guidelines and procedures for the
technical assessment of submissions from Parties on proposed forest reference emission levels and/or forest reference
levels”; Decision 14/CP.19 “odalities for measuring, reporting and verifying”; and Decision 15/CP.19 “ddressing the
drivers of deforestation and forest degradation”.
27 On REDD+ see Maria Eugenia Recio, “The Warsaw Framework and the Future of REDD+” (2014) 24:1 YB Intl Env L
37, see also Julia Dehm, Reconsidering REDD+: Law, life, limits and growth in crisis (PhD Thesis, Melbourne Law
School, 2015) [unpublished].
28 Kyoto Protocol to the United Nations Framework Convention on Climate Change, UN Doc FCCC/CP/1997/7/Add.1
(opened for signature 11 December 1997, entered into force 16 February 2005) [Kyoto Protocol].
29 Ibid at Article 17.
30 Joint Implementation is accounted for in Article 3(10) and 3(11).
31 The CDM is accounted for in Article 3(12).
32 Kyoto Protocol supra note 28 at Article 6(1)(b).
33 Ibid at Article 12(5)(b).
34 Ibid at Article 12(5)(c).
134 Windsor Yearbook of Access to Justice 2016
non-Annex I countries, by facilitating the transfer of technology and finance,35 whilst also assisting
Annex I parties achieve compliance in the most cost-effective manner by allowed “certified emission
reductions accruing from such projects to contribute to compliance”.36 The voluntary participation37 of
both “producing” and “purchasing” countries should “contribut(e) to the ultimate objective of the
Convention.”38 The CDM depends upon complex regulatory infrastructure, including a supervisory
Executive Board39 as well as validation and verification by private “Operational Entities”.40
III. CIVIL SOCIETY CRITIQUES OF THE UNFCCC: CLIMATE JUSTICE, CARBON
COLONIALISM AND CO2LONIALISM
Civil society movements have been critical not just of the lack of effective climate action from the
UNFCCC but also the form of climate action it is promoting. In particular, social movements have
highlighted environmental and social justice problems arising from the utilization of carbon markets as a
key international climate mitigation strategy, enabled through the Kyoto Protocol’s “flexibility
mechanisms”.41 Academics and activists have demonstrated that claims that the CDM will facilitate
lowest-cost climate mitigation and provide climate finance to countries in the South are dubious given
that the “additionality” of many of these “offset” projects is questionable.42 That is, many of these
claimed reductions do not represent “real emission” reductions. Moreover, given these offsets can be
purchased and used to legitimate further greenhouse gas emissions in the North, environmental groups
allege that such carbon trading provides a “dangerous distraction” that prevents urgently necessary
changes in energy production and distribution.43 Activist academics have documented some of the
negative social impacts such projects have had in communities where they have been located.44 For
Indigenous peoples the support of “carbon sinks” through afforestation and reforestation projects under
the CDM45 and more recently a proposed REDD+ scheme have been particularly contentious,46 as such
projects have been viewed as a form of “green grabbing” or the appropriation of land in the South for
35 Ibid at Article 12(2) and (3)(a).
36 Kyoto Protocol supra note 28 at Article 12(2) and (3)(b).
37 Ibid at Article 12(5)(a).
38 Ibid at Article 12(2).
39 Ibid at Article 12(4).
40 Ibid at Article 15(5).
41 These are carbon trading (Article 17), joint implementation (Article 6) and the Clean Development mechanisms (Article
12).
42 On “additionality of these projects”, see Lambert Schneider, “Assessing the additionality of CDM projects: practical
experiences and lessons learned” (2009) 9 Climate Policy 242.
43 Simon Bullock, Mike Childs & Tom Picken, “A Dangerous Distraction: Why Offsetting is Failing the Climate and
People: The Evidence” (London: Friends of the Earth England, Wales and Northern Ireland, 2009).
44 See for example, Steffen Böhm & Siddhartha Dabhi, eds, Upsetting the Offset: The Political Economy of Carbon
Markets (London: MayFlyBooks, 2009).
45 For case study discussions of CDM afforestation and reforestation projects, see Larry Lohmann, Carbon Trading: A
Critical Conversation on Climate Change, Privatization and Power (Uppsala:The Dag Hammarskjӧld Centre, 2006)
[Lohmann, Carbon Trading].
46 On REDD+, see Tom Griffiths “Seeing REDD? Forests, climate change mitigation and the rights of indigenous peoples”
(updated version, Forest Peoples’ Programme, 2009).
Vol. 33 (3) Carbon Colonialism or Climate Justice? 135
ostensible environmental ends.47 It has been alleged that establishment of large-scale tree plantations as
“carbon sinks” in the South “would result in land being used at the expense of local people, accelerate
deforestation, deplete water resources and increase poverty”.48
After reviewing the literature on international carbon markets, Rebecca Pearse and Steffen Böhm
present five arguments that demonstrate the flawed practices of carbon markets and five arguments that
carbon trading cannot be reformed.49 They highlight the empirical history of their failure, the ways
carbon markets have promoted unjust development and “green grabbing”, how carbon markets have
provided loopholes for polluters, operated as fossil fuel subsidies and modes of regressive taxation.
Moreover, they argue that carbon, especially carbon offsets, are an inherently “unregulatable
commodity”50 given the impossibility of assessing the “additionality” or whether the “savings” promised
by offset projects represent a real change from what would have otherwise have happened without the
project. They also show that markets display a “utopian faith in pricing”, when in reality the carbon
market, like all so-called “free” markets, is created and stabilized by law and regulation and this is a
“political construc(t), constituted by the constellation of social forces that dominate them”.51 Pearse and
Böhm also point to the problems of assuming that the emissions “saved” through forest sequestration
can be equated to greenhouse gases emitted from the burning of fossil fuels because of the differences
between “green” and “brown” carbon. Finally they critique the way carbon markets promote a system of
technocratic rule managed by experts, and are an obstacle to alternative policies promoting
decarbonization.52 Other analysts have suggested that “offsets” are a modern day form of medieval
Church indulgences that enable dangerous forms of moral apathy to the ecological consequences of our
actions.53 They have also demonstrated the ways in which carbon markets facilitate “carbon lock-in”54
and operate as a “dangerous distraction”55 from urgently necessary structural changes in energy
production use and distribution.56 This imperative arises urgently in relation to the international climate
regime. These perspectives have been articulated in numerous statements, including that by the newly
47 On ‘green grabbing’ see James Fairhead, Melissa Leach & Ian Scoones, “Green grabbing: a new appropriation of
nature?” (2012) 39:2 J Peasant Stud 237.
48 Corporate Europe Observatory, ‘“Savingthe Kyoto Protocol Means Ending the Market Mania July 2001 cited in Arup
Shah, “Climate Change Flexibility Mechanisms” Global Issues (2 April 2012), online: <http://www.global-
issues.org/article/232/flexibility-mechanisms>.
49 Rebecca Pearse & Steffen Böhm, “Ten reasons why carbon markets will not bring about radical emissions reduction”
(2014) Carbon Management 1 [Pearse & Böhm].
50 See also Larry Lohmann, “Regulation as Corruption in the Carbon Offset Markets” in Böhm & Siddhartha Dabhi, supra
note 44.
51 Pearse and Böhm, supra note 49 at 8.
52 Ibid..
53 Kevin Smith, Oscar Reyes & Timothy Byakola, The Carbon Neutral Myth: Offset Indulgences for your Climate Sins
(Amsterdam: Transnational Institute, Carbon Trade Watch 2007).
54 See for example Gregory C Unruh, “Understanding Carbon Lock-In” (2000) 28 Energy Policy 817.
55 Bullock, Childs & Picken, supra note 43.
56 See for example Ronnie Hall, “REDD: The Realities in Black and White” (Friends of the Earth International, 2010); see
also Lohmann, Carbon Trading, supra note 45; and Tamra Gilbertson & Oscar Reyes, “Carbon Trading: How it works
and why it fails” (Uppsala: Dag Hammarskjöld Foundation, 2009).
136 Windsor Yearbook of Access to Justice 2016
formed Climate Justice Now! coalition at the Bali COP (2007)57 and Poznan COP (2008),58 “System
Change not Climate Change – A Peoples’ Declaration from Klimaforum09” (2009),59 the “Peoples’
Agreement” from the “World Peoples’ Conference on Climate Change” in Cochabamba (2010),60 the
“Scrap ETS: No EU Emissions Trading Scheme” statement (2012)61 and the “Margarita Declaration on
Climate Change” from the Social PreCOP meeting (2014).62 A social movement statement released in
December 2014 to coincide with the Lima COP reads in part:
In the ‘green’ economy framework, its promoters aim to make us believe that ‘sustainable
economic growth’ is possible and can be ‘decoupled from nature’ by using capitalist
forms of production, or that it is feasible to ‘compensate’ or ‘mitigate’ contamination or
destruction in one place by ‘recreating’ or ‘protecting’ another. Under an unjust and
colonialist logic, the ‘green’ economy subjugates nature and autonomous peoples by
imposing restrictions on the use of and control over their territories in order to fill the
pockets of a few, even when communities possess the deeds to their land.63
Some environmental justice and Indigenous peoples’ movements have developed the term “carbon
colonialism” or “CO2lonialism” to describe the operations of the international carbon market, and
particularly such “carbon sinks”. In 1991, the New Delhi based Centre for Science and Environment
[CSE], in a report Global Warming in an Unequal World, described certain strategies that were being
promoted to address climate change as perpetuating forms of “environmental colonialism”.64 Their
report was in response to a World Resource Initiative report that suggested greenhouse gas reductions
could be achieved if Asian households had less methane-producing cows and rice paddies. CSE
criticized the failure to distinguish the “survival emissions” of the poor from the “luxury emissions” of
the rich, and asked, “[j]ust what kind of politics or morality is this which masquerades in the name of
‘one worldism’ or ‘high minded internationalism’”.65 The term CO2lonialism was also used by the
57 Carbon Trade Watch, “Climate Justice Now! Statement” Climate Justice Now (03 November 2008), online:
<http://www.carbontradewatch.org/take-action-archive/climate-justice-now-statement-4.html>.
58 Carbon Trade Watch, “Radical New Agenda Needed to Achieve Climate Justice’: Poznan Statement form the Climate
Justice Now! Alliance”, Climate Justice Now (12 December 2008), online:
<http://www.carbontradewatch.org/archive/poznan-statement-from-the-climate-justice-now-alliance-2.html>.
59 “System Change not Climate Change A Peoples’ Declaration from Klimaforum09”, online: <http://klimaforum.org/>,
60 World People’s Conference on Climate Change and the Rights of Mother Earth, “People’s Agreement of Cochabamba”,
(April 24, 2010), online: <https://pwccc.wordpress.com/2010/04/24/peoples-agreement/>.
61 See Chris Lang, “The EU Emissions Trading Scheme has failed: ‘Time to Scrap the ETS’” REDD-Monitor, 16 April
2013, online <http://www.redd-monitor.org/2013/04/16/the-eu-emissions-trading-scheme-has-failed-time-to-scrap-the-
ets/>.
62 UNFCCC, “Margarita Declaration on Climate Change”, online: <http://newsroom.unfccc.int/unfccc-
newsroom/margarita-declaration-social-movements-call-for-greater-participation/>.
63 No REDD in Africa Netword, “To Reject REDD+ and extractive industries”, (1 December 2014), online:
< http://www.no-redd-africa.org/index.php/declarations/110-to-reject-redd-and-extractive-industries>.
64 Anil Agarwal & Sunita Narain, “Global Warming in an Unequal World: A Case of Environmental Colonialism” (New
Delhi: Centre for Science and Environment, 1991) at 1.
65 Ibid at 3.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 137
Norwegian NGO NorWatch in May 2000 in a report of that name, which examined two afforestation
projects in Uganda by two different Norwegian companies.66
At the UNFCCC meeting in Lyon, France in September 2000, the International Indigenous Peoples’
Forum on Climate Change (IIPFCC) released a statement, which said:
Our philosophy and cosmovision require us to condemn the inclusion of sinks in the
Clean Development Mechanism (CDM). Sinks in the CDM would constitute a worldwide
strategy for expropriating our lands, seas and territories and violating our rights that
would culminate in a new form of colonialism. Through sinks projects, we would lose
our right to manage traditionally our lands and become slaves of the carbon trade. Carbon
trade-induced conflicts, such as violence for access to basic resources would endanger
our survival as peaceful peoples of the land.67
At the COP6bis meeting in Bonn in 2001 the IIPFCC described these carbon sinks under Kyoto as a
“new form of colonialisms and genocide”.68 These critiques and the idea that the CDM could “constitute
a dangerous tool for the expropriation of our lands and territories”69 were reiterated at COP7 in
November 2001 when the “Marrakesh Accords”70 established modalities and operational rules for the
Kyoto flexibility mechanisms, carbon trading, joint implementation and the CDM. This terminology was
taken up by the report “No to CO2lonialism! Indigenous Peoples’ Guide: False Solutions to Climate
Change” produced by the Indigenous Environment Network and other groups.71 Heidi Bachram has
argued that “[e]missions trading therefore becomes an instrument by means of which the current world
order, built and founded on a history of colonialism, wields a new kind of “carbon colonialism’”.72
IV. THIRD WORLD APPROACHES TO CLIMATE CHANGE
One way in which these critiques have been taken up in international environmental law scholarship
is through the language and frameworks of human rights. There is a growing body of scholarship that
66 Harald Eraker, “CO2lonialism in Uganda” NorWatch Newsletter 5/00, online: <http://www.xn--framtidenivrehender-
bxb.no/english/other/co2lonialism-in-uganda.html>. See also Centre for Science and Environment, “Carbon
Colonialism: Cheap Fix: The Rush to Make Profits out of carbon-fixing engenders another kind of colonialism”, (25
October 2000) online: <http://www.cseindia.org/node/3136>.
67 “No to CO2lonialism: Indigenous Peoples’ Guide False Solutions to Climate Change” (Indigenous Environment
Network, 2009) at 28.
68 Ibid.
69 Ibid.
70 “Marrakesh Accord”, Decision 2-14/CP.7, FCCC/CP/2001/13/Add.1, (21 January 2002).
71 Indigenous Environment Network, “No to CO2onialism! Indigenous Peoples’ Guide: False Solutions to Climate
Change”, (2009), online: <http://www.uky.edu/~tmute2/nature-society/password-protect/nature-society-pdfs/Indigenous-
Peoples-Guide-Env.pdf>.
72 Heidi Bachram, “Climate Freud and Carbon Colonisation: The New Trade in Greenhouse Gases” (2004) 15:4
Capitalism, Nature, Socialism 5 at 19.
138 Windsor Yearbook of Access to Justice 2016
brings a human rights analysis to bear on climate change and climate mitigation strategies.73 However,
as Stephen Humphreys has argued, there is “no obvious hook for a human rights analysis of carbon
markets” and numerous challenges in such an approach given the “fundamentally dissimilar” nature of
these regimes.74 Francis Seymour has drawn attention to the human rights concerns that arise at the
intersection of forest and climate change regimes.75 She highlights that the way in which forests become
incorporated within mitigation strategies can have implications for the livelihoods and therefore for the
realization of economic and social rights of forest-dependent communities. However, TWAIL scholars
have expressed concerns about human rights becoming the main language of Third World resistance76
but also the way in which human rights discourses and framework can too easily be “manipulated to
further and legitimize neo-liberal goals”.77 There is therefore a sense that human rights approaches are
not adequate to address underlying shifting dynamics of power that the expansion of new global carbon
markets represent. Human rights approaches may provide tools for taming how new forms of
international power over land authorized by the climate regime are exercised, however they have less to
say about the underlying expansion of global power over land in the South through market mechanisms.
To address such questions requires understanding how new forms of international authority over land
are authorized by the climate regime. Below, I briefly canvas two other approaches that have been
adopted by international environmental law scholars orientated to the South, namely examination and
support of the positions of Third World states and promotion of legal principles such as burden sharing
and differentiation, before outlining why these approaches provide limited theoretical tools to examine
the effects of the increasing marketization of international climate governance.
Environmental issues such as control and fair sharing of natural resources were a key concern of
Third World international lawyers in the 1960s and 1970s. However, as Usha Natarajan identifies,
“environmental issues have not been a focus of Third World Approaches to International Law [TWAIL]
scholarship since the acronym was first espoused in the 1990s”.78 TWAIL approaches have
demonstrated the continuing relevance of colonialism for international law, doctrine and practice and the
73 See in particular Stephen Humphreys, ed, Human Rights and Climate Change (Cambridge: Cambridge University Press,
2009) [Humphreys, Human Rights]. See also John Knox, Report of the Special Rapporteur on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Human Rights Council, 31st
session, Agenda item 3, A/HRC/31/52 (1 February 2016) and Office of the United Nations High Commissioner for
Human Rights, The Effects of Climate Change on the Full Enjoyment of Human Rights (30 April 2015).
74 Stephen Humphreys, “Conceiving justice: articulating common causes in distinct regimes” in Humphreys, Human
Rights, ibid, 299 at 316 [Humphreys, “Conceiving Justice”].
75 Francis Seymour, “Forests, Climate Change and Human Rights: Managing Risks and Trade-offs” in Humphreys, Human
Rights, supra note 73, 207.
76 Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance
(Cambridge: Cambridge University Press, 2003).
77 BS Chimni, “Third World Approaches to International Law: A Manifesto” (2006) 8 Intl Community L Rev 3 at 3
[Chimni].
78 Usha Natarajan, “TWAIL and the Environment: The State of Nature, the Nature of the State and the Arab Spring” (2012)
14 Oregon Rev Intl L 177 at 182.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 139
need to democratize and decolonize both international law and international legal scholarship.79 Karin
Mickelson has developed these insights in relation in relation to international environmental law [IEL]
and shown that the colonial nature of international law is one that IEL shares. A key justification for
colonization was “the dangling prospect of a new and seemingly inexhaustible source of resources”,80
while historians such as Richard Grove have demonstrated the colonial origins of environmental
discourses.81 Mickelson reminds us that environmental degradation does not arise in a vacuum. It
frequently has certain benefits associated with it, and it obviously has certain costs. And all too
frequently, some derive the benefits while others bear the costs.82
She argues that “a central, if not the central debate regarding the conceptual foundations”83 of IEL are
questions of North/South relations. More recently, Sumudu Atapattu and Carmen Gonzalez have also
drawn attention to how IEL is a “site of intense contestation over environmental priorities, over the
allocation of responsibility for current and historical environmental harm, and over the relationship
between economic development and environmental protection”.84 However, their analysis does not
address the concern that IEL’s increasingly market-orientated focus has become highly problematic,
making it a site that arguably reinforces rather than ameliorates North/South hierarchies. In this article,
my concern is not primarily with the fact that North/South tensions compromise the effectiveness of
IEL,85 but rather that the focus on market-fostered efficiency in IEL undermines North/South equity.
To date, there has been remarkably little TWAIL scholarship on the issue of climate change,86 with
the exception of Mickelson’s work on climate justice87 and climate debt.88 There is, however, substantial
and growing literature on climate justice,89 demonstrating the centrality of justice issues for climate
79 For more background on TWAIL see the editors’ introduction to this special issue. See also James Thou Gathii,
“TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography” (2011) 3:1 Trade L
Dev at 26.
80 Karin Mickelson, “South, North, International Environmental Law, International Environmental Lawyers” (2000) 11 YB
Intl Env L 52 at 56.
81 Richard Grove, Green Imperialism: Colonial Expansion, Tropical Island Edens and the Origins of Environmentalism,
1600-1860 (Cambridge University Press, 1996), see also Stephen Humphreys & Yoriko Otomo, “Theorising
International Environmental Law” (2014) LSE Law, Society and Economy Working Papers 9/2014.
82 Mickelson, supra note 80 at 59.
83 Ibid at 53.
84 Sumudu Atapattu & Carmen G Gonzalez, “The North-South Divide in International Environmental Law: Framing the
Issues” in Shawkat Alam et al, eds, International Environmental Law and the Global South (Cambridge: Cambridge
University Press, 2015) 1 at 2.
85 Ibid.
86 On the lack of TWAIL engagement with international environmental law see Natarajan, supra note 78.
87 Karin Mickelson, “Beyond a Politics of the Possible? South-North Relations and Climate Justice” (2009) 10:2
Melbourne J Intl L 411.
88 Karin Mickelson, “Leading towards a Level Playing Field, Repaying Ecological Debt, or Making Environmental Space:
Three Stories about International Environmental Cooperation” (2005) 43 Osgoode Hall LJ 137. See also Sundhya
Pahuja, “Conserving the World’s Resources” in James Crawford & Martti Koskenniemi, eds, Cambridge Companion to
International Law (Cambridge: Cambridge University Press, 2012) [Crawford & Koskeniemi] at 398.
89 There is a vast literature on questions of climate justice: Jeremy Baskin, “The Impossible Necessity of Climate Justice?”
(2009) 10:2 Melbourne J Intl L 424 and other articles in that Special Edition of the Melbourne Journal of International
Law; Anna Grear, “Towards ‘climate justice’? A critical reflection on legal subjectivity and climate injustice: warning
signals, patterned hierarchies, directions for future law and policy” (2014) 5 Journal of Human Rights and the
140 Windsor Yearbook of Access to Justice 2016
solutions, and also demonstrating why climate change needs to be a central concern for TWAIL
scholars. Climate change “raises profoundly important questions about social justice, equity and human
rights across countries and generations”.90 At the heart of climate justice is that “those most vulnerable
to climate change are least responsible and have the least resources to adapt”.91 Legal debates turn on
questions of historical and continuing responsibility.92 Since 1950, three-quarters of all emissions are
attributable to developed states that host only one-fifth of global population.93 If historical emissions are
taken into account, “North America exceeded its fair share of usage in the 1970s, and has been in carbon
overdrive ever since”.94
In the context of the extreme inequalities in terms of responsibility for and vulnerability to climate
change, within climate negotiations, countries from the South pushed for the inclusion of the principle of
“common but differentiated responsibility” [CBDR] as central to the UNFCCC.95 The principle of
CBDR and other norms of differential treatment recognize and respond to real historic, economic and
political differences between states through the institution of different standards for differently situated
states.96 The Kyoto Protocol is widely considered to be the “clearest attempt to transform, activate and
Environment 103; Stephen Humphreys, “Climate justice: the claim of the past” (2014) 5 Journal of Human Rights and
the Environment 134 [Humphreys, “Climate Justice”] and other articles in that Special Edition of Journal of Human
Rights and the Environment; political economy: Bradley C Parks & J Timmons Roberts, “Climate Change, Social
Theory and Justice” (2010) 27 Theory, Culture and Society 134; J Timmons Roberts & Bradley C Parks, “Ecologically
Unequal Exchange, Ecological Debt, and Climate Justice: The History and Implications of Three Related Ideas for a
New Social Movement” (2009) 50:3-4 Intl J Comp Soc 385; Ludvig Beckman & Edward A. Page, “Perspectives on
justice, democracy and global climate change” (2008) 17:4 Envtl Pol 527; informing policy approaches: Barbara Adams
& Gretchen Luchsinger, “Climate Justice for a Changing Planet: A Primer for Policy Makers and NGOs” (United
Nations and UN Non-Governmental Liason Service, 2009) [Adams and Luchsinger]; Sonja Klinsky & Hadi
Dowlatabadi, “Conceptualisations of Justice in Climate Policy” (2009) 9 Climate Policy 88; from social movement
perspectives: Patrick Bond, Politics of Climate Justice: Paralysis Above, Movement Below (Scottsville, SA: University
of KwaZulu-Natal Press, 2012); Nicola Bullard, Ulrich Brand, Edgardo Lander & Tadzio Mueller, ed, Contours of
Climate Justice: Ideas for Shaping New Climate and Energy Policies (2009) [Bullard et al, Contours of Climate Justice];
Brian Tokar, “Towards Climate Justice” (2009) September Z-Magazine; Ulrich Brand et al, “Radical Climate Politics in
Copenhagen and Beyond: From Criticism to Action?” in Bullard, et al, Contours of Climate Justice; Bertie Russell &
Andre Pusey, “Movements and Moments for Climate Justice: From Copenhagen to Cancun via Cochabamba” (2011)
11:3 ACME: An International E-Journal for Critical Geographies 15; Martina Austen & Philip Bedall, “Climate Justice
Point of Reference for a counter hegemony or nebulous empty phrase?”, NoteFromBelow 29 July 2010 and Ashley
Dawson, “Climate Justice: The Emerging Movement against Green Capitalism” (2010) 109:2 South Atlantic Quarterly
313 [Dawson].
90 Human Development Report 2007/2008: Flighting Climate Change - Human Solidarity in a Divided World,”
2007/2008, 22.
91 Humphreys, “Climate Justice” supra note 89 at 136.
92 Benito Müller, Niklas Höhne & Christian Ellermann, “Differentiating (historic) responsibilities for climate change,”
(2009) 9:6 Climatic Policy 593.
93 Adams & Luchsigner, supra note 89.
94 RT Pierrehumbert, “Cumulative Carbon and Just Allocation of the Global Carbon Commons” (2012-2013) 13 Chicago J
Intl L 527.
95 UNFCCC, supra note 11, Article 3(1)
96 Lavanya Rajamani, Differential Treatment in International Environmental Law (Oxford: Oxford University Press, 2006)
at 1.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 141
operationalize CBDR from a legal concept to a policy instrument”.97 It restricted legally-binding
reductions of greenhouse gas emissions to developed countries only. Differential treatment is also
evident in the provisions of the UNFCCC regime on climate financing, technology transfer, and capacity
building. Unfortunately, since then, the principle of CBDR has been under sustained attack. It was not
explicitly included in the 2011 Durban COP decision “to develop a protocol, another legal instrument or
an agreed outcome with legal force under the Convention applicable to all Parties”. Rather than a binary
“firewall”, developed countries are calling for a more “nuanced” understanding of differentiation in light
of the increased emissions from some developing countries.98 This is reflected in the shift from the “top-
down” Kyoto Protocol framework of legally-binding targets to the decentralized “bottom-up” approach
in Paris 2015 where countries put forward nationally-determined targets.99 The erosion of CBDR is also
achieved through differing interpretations of CBDR as either a historic, moral and legal “responsibility
to pay”100 or a “pragmatic problem solving formula” based on ability to pay”.101 The failure of CBDR
to “specify on what basis differentiation is to be made between countries capability and/or
culpability”102opens up a conceptual ambiguity whose resolution has material effects. Thus the basis
of differentiation in CBDR is critical. There is a real risk that differentiation based upon Southern lack of
capacity, rather than Northern responsibility, can authorize a reiteration of a colonial “dynamic of
difference”.103 If differential treatment is grounded in the greater current per capita and historical
responsibility of developed countries for climate change, it operates as a redistributive measure to
compensate and ameliorate the North’s unequal appropriation of atmospheric space. Such an
interpretation has been contested by United States negotiators who “categorically rejected” any “sense
of guilt or culpability or reparations” for historical omissions,104 instead insisting on the need for all
countries to “grow up” and take responsible future-orientated action on climate change.105 However, if
the principle is grounded in a lack of “capacity” to take mitigation measures in the South, where such
“capacity” is instead located in the North, a principle that focuses on lack of “capacity” risks becoming a
pretext for significant interventions to assist with climate mitigation that themselves could be geared
towards the expansion of neo-liberal market-based approaches and the regulation that enables them.
97 Christopher C. Joyner, in “Common but Differentiated Responsibilities” (2002) 96 Proc Am Soc Intl L 358.
98 Jutta Brunnée & Charlotte Streck, “The UNFCCC as a negotiation forum: towards common but more differentiated
responsbilities” (2013) 13:5 Climate Policy 589 at 590.
99 See the discussion in section III. D below.
100 See for example submissions by Tuvalu that “the allocation of responsibility for emission reductions should be based on
historical emissions … Annex I parties have contributed approximately 75% of cumulative global emissions of CO2. A
global breakdown of historical responsibility can be represented as: Kyoto Annex I Parties 45.75%, the United States
29.25%, Non-Annex I Parties 25%” cited in Thomas Deleuil, “The Common but Differentiated Responsibilities
Principle: Changes in Continuity after the Durban Conference of the Parties” (2012) 21:3 RECIEL 271 at 273 [Deleuil].
101 Brunnée & Streck, supra note 98 at 592; and Mickelson, supra note 80 at 70.
102 Rajamani, supra note 96 at 195. See Deleuil, supra note 100 at 272.
103 See Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University
Press, 2007).
104 Cited in Patrick Bond, “Climate debt owed to Africa: What to demand and how to collect?” (2010) 2:1 African Journal
for Science, Technology, Innovation and Development 83.
105 See for example Bryan Walsh, “China Shows It’s Ready to Grow Up on Climate Change”, Time (12 November 2014),
online: <http://time.com/3582178/china-us-climate-change-deal/>.
142 Windsor Yearbook of Access to Justice 2016
While there is certainly a need to evaluate the framework of differentiation and how equitable burden
sharing is achieved, especially in relation to the increasing greenhouse gas emissions of so-called
BRICS countries (Brazil, Russia, India, China and South Africa), the continual focus on “capacity”
rather than “responsibility” risks inequitable burden shifting on the part of developed states.
The development of carbon markets has also complicated Third World states’ positions on climate
mitigation. While some Southern states (particularly low-lying islands, Bolivia and some other South
American states) have opposed these schemes, it is also the case that “developing country
representatives have been leaders in the movement to expand carbon markets to new jurisdictions”.106
The development of offset schemes has been promoted and supported by some Southern countries that
see themselves as being able to capture some of the very unequally-distributed climate financial flow
from these markets,107 including states that host the last remaining large forests, such as Papua New
Guinea, Costa Rica and Indonesia. However, analytically a narrow focus on the interests of Third World
states rather than their peoples can be limiting. As Anghie and Chimni highlight, Third World states
often act against the interests of their peoples. They argue that a TWAIL “interpretive prism” must
address international law from the “actualized experience of these peoples and not merely that of the
states which represent them”.108 Similarly, as Chimni has highlighted, the invocation of “national
interests” by the ruling elite in Third World countries, who are increasingly part of an emerging
“transnational ruling elite” can mask the establishment of a “global rule of transnational capital”.109
TWAIL scholars have been concerned to “identify and give voice to the peoples within Third World
states - women, peasants, workers, minorities”.110 Thus TWAIL scholars would do well to pay attention
to the demands of social movements for climate justice described in the first part of this paper.111
V. AUTHORITY AND MODES OF AUTHORIZATION IN THE UNFCCC
A. Constructing “Commonality”
The preceding analysis of Third World state positions on climate change, TWAIL scholarly
contributions on climate change, and the gaps therein, lead me to suggest that we need to move beyond
an interrogation of how “common” responsibilities are to be shared and move instead towards an
understanding of how the notion of “commonality” itself has been constructed through the UNFCCC.
For this purpose, there are two aspects of the UNFCCC that reward scholarly attention. The first is the
operation of a political/economic split within the climate regime, whereby the market or the “economic
sphere” is tasked with operationalizing or implementing “political” objectives. The second is
interrogating how the UNFCCC regime is authorized and how this authorization is effected in practice.
106 Pearse & Böhm, supra note 49 at 4.
107 For a discussion of the unequal geographical distribution of the benefits of carbon markets to Third World countries see
Tomilola Akanle Eni-Ibukun, International Environmental Law and Distributive Justice (London: Routledge, 2014).
108 Antony Anghie & BS Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal
Conflicts” (2003) 2:1 Chinese J Intl L 77 at 78.
109 Chimni, supra note 77 at 6-7.
110 Anghie & Chimni, supra note 108 at 83.
111 Rajagopal, supra note 76.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 143
On the first aspect, central to the operations of carbon markets is a split between the economic and
the political spheres, where the setting of objectives is deemed to be “political” but their implementation
is deemed to be “economic”. TWAIL scholars have drawn attention to how any easy separation between
the “political” and the “economic” sphere is “in fact impossible because what is defined as economic or
political is itself a political question”.112 The separation between objectives and their means of
realization cannot be so easily compartmentalized. Moreover, a split between the political and the
economic in international law provides authorization for different international institutions to address
themselves to different aspects of an international issue. That is, in the climate context, this split
authorized the UNFCCC as the primary forum for the negotiation of political commitments in relation to
climate change, while the World Bank through its climate finance programs and its role as trustee of the
Green Climate Fund is given significant power over the process by which Third World countries
establish carbon trading schemes to support UNFCCC implementation.
On the second aspect of authority and modes of authorization, TWAIL scholarship has developed an
important conceptual apparatus to interrogate the way in which “liberal” international law remains
structured and organized by a colonial “dynamic of difference” that persists, despite formal
decolonization, and is re-inscribed even as the discipline purports to renew itself.113 International law is
thus implicated in the maintenance of a geopolitical power structure, the reproduction of a hierarchy of
knowledge and the consequent differentiated distribution of material wealth.114 Sundhya Pahuja has
argued that in the post-1945 era, the discourse, practices and institutions of development maintained this
hierarchical “dynamic of difference” by inscribing a key lack to the South, but also by offering “a
narrative of salvation centered on faith in economic growth”.115 In this sense, development and growth
function as “transcendent grounds” to international law and stabilize and give purported universality to
its categories. This article explores how framing climate change as a “shared” or “common” challenge
without contending with either the history of greenhouse gas emissions or the history of international
law has the effect of reproducing patterns whereby “international law continuously disempowers the
non-European world, even while sanctioning intervention within”.116 The legal response to climate
change demonstrates how power differentials can be reproduced even in regimes that recognize the need
for differentiated treatment to address structural inequalities.117 Carbon markets are an institutional
response to the problem of climate change that establish new forms of authority over lands in ways that
are experienced as colonial. They therefore provide a critical site to investigate how, even when the
discipline of international law attempts to renew itself and aspires to establish new, future-orientated
frameworks of co-operation based on a genuine “common concern”, the structural power differentials
central to the discipline nonetheless persist and get reproduced in the present, albeit in new forms.
Below, I explore how reauthorization of international authority based on an invocation of “common
112 Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality
(Cambridge: Cambridge University Press, 2011) at 20.
113 Anghie, supra note 103.
114 Pahuja, supra note 112 at 37.
115 Ibid at 70.
116 Anghie, supra note 103 at 312. On climate change and history, see Humphreys, “Climate Justice”, supra note 89.
117 On differentiated treatment in international environmental law see: Phillippe Cullet, Differential Treatment in
International Environmental Law (London: Ashgate, 2003) and Rajamani, supra note 96.
144 Windsor Yearbook of Access to Justice 2016
concern”, especially when applied to a world deeply stratified by differential in power and access to
resources, may reproduce and reorganize a colonial logic.
In discussing the doctrinal principle of “common concern”, environmental law scholarship is
generally caught between two modes of argumentation, dismay at the lack of concreteness of these
general principles and defence of these principles as not simply normative or utopian.118 While there is
an undercurrent of despair about the “lack of cooperation among states, lack of appropriate international
institutions, a host of collective action problems, and free-riding [that] all render concerted efforts
difficult, if not impossible”,119 there is also a sense that the idea of “common concern” offers
possibilities of hope in international law, drawing on a “communitarian strain” in international law
which may also be thought of as “the ethics of commons as community, or as “law-full” space”.120
Oscillating between a pessimistic assessment of practice and an optimism of principle, key responses
have been that of searching for “any evidence in international law of … the idea that there exists not just
a community of necessity, but also of values”,121 while also asserting the necessity of “mutual
interdependence” of all states within a “world order in which every sovereign state depends on the same
global environment” is undeniable.122
In other fields, scholars and activists have criticized both the necessity and the desirability of such
globalist thinking in relation to ecological problems, especially when devoid of consideration of
power.123 Scholars in the field of political ecology warned of the dangers implicit in an imaginary of
Earth as distinct bounded, blue-green sphere, a collective “life-boat” suspended in a vast universe, that
demands collective responsibility and threatens collective vulnerability or annihilation.124 Such “one
118 For the latter see Jutta Brunnée, “International Environmental Law: Rising to the Challenge of Common Concern?”
(2006) 100 Proceedings of the Annual Meeting (American Society of International Law) 307, in which she argues
against the idea that international environmental law is neither “precise enough” nor “forceful enough to impose itself” at
308.
119 See for example ibid at 294: “Indeed, contemporary international law, based upon the precepts of sovereignty and
territoriality of nation states, is ill-prepared for the challenges of climate change mitigation and adaptation.”
120 Sundhya Pahuja, “Conserving the World’s Resources?” in Crawford & Koskenniemi, supra note 88, 398
121 Jutta Brunnée, “Common Areas, Common Heritage, and Common Concern” in Daniel Bodansky, Jutta Brunnée & Ellen
Hey, eds, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2008).
122 See Jacqueline Peel, Science and Risk Regulation in International Law (Cambridge: Cambridge University Press, 2010)
at 17, citing comments from President Judge Bedjaoui and Judge Weermantry in the International Court of Justice’s
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. See also Justice Weeramantry separate
opinion in the Gabcikovo/Nagymaros where he wrote: “we have entered an era of international law in which
international law serves not only the interests of individual States, but looks beyond them and their parochial concerns to
the greater interests of humanity and planetary welfare”.
123 See in particular, Wolfgang Sachs, ed, Global Ecology: A New Arena of Political Conflict (London: Zed Books, 1993);
The Ecologist, Whose Common Future? Reclaiming the Commons (London: Earthscan, 1993). See also Arturo Escobar,
“Beyond the Third World: Imperial Globality, Global Coloniality and Antiglobalisation Social Movements” (2004) 25:1
Third World Q 207.
124 See for example Kenneth E Boulding, “The Economics of the Coming Spaceship Earth” in H Jarrett, ed, Environmental
Quality in a Growing Economy: Essays from the Sixth RFF Forum (Baltimore: John Hopkins University Press, 1966) at
3 and for critique of globalist Larry Lohmann, “Resisting Green Globalism” in Sachs, supra note 123); Vassos Argyrou,
The Logic of Environmentalism: Anthropology, Ecology and Postcoloniality (New York: Berghahn Books, 2005); and
Subhabrata Bobby Banerjee, “Who Sustains Whose Development? Sustainable Development and the Reinvention of
Nature” (2003) 24:1 Organisation Studies 143.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 145
world” globalism, they argue, risks inflicting violence upon a globe deeply stratified in terms of power
and access to resources, along lines of class, race and gender, and where the problem of climate change
its causes and effects is deeply entangled in these very differentials.125 Thus, Jason Moore warns
against a simplified attribution of causality to a collective humanity or “anthros”,126calling instead for a
framing of the climate crisis not as a “global” or “common” problem but as a problem of global
discrepancies – in wealth, consumption levels, power and vulnerability.
These critiques, while highly politically percipient of current configurations, are of more limited
value for a re-constitutive move, or for ways of thinking about how a “commonality” could be
constituted. Alongside his critique of “imperial globality” and “global colonity”, Escobar’s concern is
directed at theorizing how social movements confronting a neo-liberal globalization might be seen as
“constituting a new form of counter-hegemonic globalization” or “alternative globalisations” or
“transmodernity”.127 Addressing climate change, understood as “a symptom of a particular development
path” and of “its globally interlaced supply-system of fossil energy”128 requires a similar transnational or
globalized movement against the systems of fossil fuel dependency. It does not make sense to take a
for/against position on whether climate change should be articulated as a matter of “common concern”.
Instead, the important political questions concern what types of commonality are envisioned, the ways in
which commonality is patterned, the modes of being in common that are enacted, what modes of
conduct are authorized, and what responsibilities are compelled.
B. Carbon Markets and their Authorization
In order to move beyond doctrinal debates about the principle of “common concern” as either “fact”
or mere “aspiration”, I argue that thinking about the invocation of “common concern” as a technology
that authorizes a specific jurisdictional arrangement allows for a more careful examination of the kind of
authority this invocation sets in motion, how it is directed, and how it is actualized. Moreover, it allows
for more careful thinking about the different ways an international “common concern” can be ordered.
That is, it directs thinking to the plurality of ways the nature of the international community can be
imagined and the plurality of ways “international” can be ordered.129 This can be understood through
examining three different sets of practices to address climate change – underpinned by ideas of
utilitarian justice, distributive justice and what might perhaps best be described as a vision of “plurality
in justices”130 – that are all in some way authorized by an invocation of “common concern”.
125 Peter Newell, “Race, Class and the Global Politics of Environmental Inequality” (2005) 5:3 Global Environmental
Politics 70.
126 Jason W Moore, “The Capitalocene, Part I: On the Nature and Origins of Our Ecological Crisis”, online: (2014) Fernand
Braudel Center, Binghamton University <http://www.jasonwmoore.com/uploads/The_Capital-
ocene__Part_I__June_2014.pdf>.
127 Escobar, supra note 123 at 223 & 225.
128 Thomas Cottier et al, “The Principle of Common Concern and Climate Change” (2014) 52 Archiv des Völkerrechts 293
at 314.
129 Shaunnagh Dorsett & Shaun McVeigh, Jurisdiction (Routledge, 2012), Ch 7.
130 Andrew Robinson & Simon Tormey, “‘Resisting ‘Global Justice’: Disrupting the colonial ‘emancipatory’ logic of the
West” (2009) 30:8 Third World Q 1395.
146 Windsor Yearbook of Access to Justice 2016
Carbon trading mechanisms, although promoted by specific interests,131 nonetheless are also
authorized by a claim they act in and serve the public good. This claim continues to authorize carbon
markets even as scholarship demonstrates how they do not and cannot achieve radical emission
reductions132 and the utilitarian logic under which they operate then distributes harms and benefits
unevenly.133 Conventional theory has rebutted a prevalent positivist notion that “economics has no a
priori notion of the collective or the common good.” On the contrary, it stressed that “justifications for
liberal markets must draw on moral claims about the nature of the common good, which must be more
than merely utilitarian or calculative”.134 The moral claim that grounds and legitimates carbon markets is
that they will facilitate “emission reductions [taking] place where ever they are cheapest”,135 and that
pursuing the aggregate least cost mitigation option serves the collective good, in that it allows for greater
aggregate levels of ambition.136 For example, this moral claim underpins an Australian government fact
sheet, “Global Actions – Facts or Fiction” responding to allegations that the use of offsets represents an
abrogation of international responsibility to take domestic action.137 It argues that the international
carbon market enables “countries to access cost-effective mitigation, wherever it occurs” and that this
promotion of lowest-cost abatement options through the purchase of offsets rather than domestic
reductions enables “deeper targets” to be committed to. The importance of geographical or contextual
specificity is denied; rather, the argument’s premise is that it “it makes no difference where emission
reductions occur, provided that they do occur” and that there are neither scientific nor environmental
reasons to favour abatement in one place over another. Its vision is of a utilitarian notion of justice that
looks to an imagined aggregate in order to assess the overall common good. At stake therefore in
critiques of carbon markets is not the absence of a “common concern” but the way the particular idea of
“commonality” that underpins utilitarian idea of justice is organized.
A different structuring of “commonality” underpins ideas of climate action based on distributive
justice norms, epitomized in “contract and convergence” frameworks such as that of greenhouse
131 See Peter Newell & Matthew Paterson, Climate Capitalism: Global Warming and the Transformation of the Global
Economy (Cambridge University Press, 2010). For a more critical perspective see Lohmann, Carbon Trading, supra note
45.
132 Pearse & Böhm, supra note 49.
133 Scholars and activists have, often through case study examples, demonstrated the reproduction of structural injustice
through these mechanisms, in that they allow for a deferral of climate action by polluters whilst often having negative
social and environmental impacts on the communities where they are located. See for example: Lohmann, Carbon
Trading, supra note 45; Böhm & Dabhi, supra note 44; Rebecca Pearse & Julia Dehm, “In the REDD: Australia’s
Carbon Offset Project in Central Kalimantan” (Friends of the Earth International, 2011). For these reasons Ashley
Dawson describes carbon markets as “a specifically neo-liberal mode of biopower that hinges on allocating social death
just as much as it does on guaranteeing the right to live” but where the categories of human wasteor superfluous
humanityare not uniform categories but depend upon “representational processes of marginalisation, subordination, and
scape-goating”’ and concentrated processes of race and class formation within particular national and subnational
arenas”. Dawson, supra note 89, at 319.
134 William Davis, The Limits of Neoliberalism: Authority, Soveriegnty and the Logic of Competition (SAGE, 2014) at 15.
135 NH Stern, The economics of climate change: the Stern review (Cambridge: Cambridge University Press, 2007) at xviii.
136 Ibid; see also Johan Eliasch, Climate change: financing global forests: the Eliasch review (Earthscan, 2008).
137 Department of Climate Change and Energy Efficiency, “Global Action: Fact or Fiction”, online:
<http://www.climatechange.gov.au/government/international/global-action-facts-and-fiction/use-of-offsets.aspx>.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 147
development rights.138 In these models, a “common objective” of climate mitigation is pursued, but in a
differentiated fashion, where more significant mitigation is first required from those with the highest
pollution levels, while often allowing for an increase in the emissions of those with low pollution levels.
This vision of gradual convergence to a horizon of equal per capita emissions globally is read by some
as the vision underpinning the principle articulated in the UNFCCC of CBDR.139 These principles of
differentiated treatment are presented as both the means towards future co-operative international action
but also an explicit acknowledgement of present persistent inequalities within the international.
Finally, in the practices of a growing transnational grassroots climate justice movement against fossil
fuel extraction and in defense of more localized control over local resources, there is another patterning
of commonality. These struggles, even though “place-based”, are necessarily also globalized in
addressing the transnational supply and logistics chains and financing processes that enable fossil fuel
extractivism worldwide. What is “common” in these struggles is more a shared point of antagonism,
rather than a shared future vision or aspiration to “commonality”.
C. “Common Concern” as a Jurisdictional Technology
Doctrinally the principle of “common concern” is generally seen as not creating either specific rules
or specific obligations but “establishes the general basis for the community concerned to act”.140 There
are two different accounts that can be given of this: one in which the expression of shared concern
brings into being an international community, the other where the “international community” is
imagined as a preexisting entity. In jurisdictional terms we could describe this as two rival accounts of
the international, one in which the international domain is given shape by a free meeting,141 and another
that “shape(s) the international domain around forms of cosmopolitan order that treat the international
domain as having an independent existence”.142 This second account of international ordering is
reflected in most doctrinal discussions of the principle of “common concern” in international
environmental law. In such accounts the “international” is already structured, and this prior background
structuring implicitly determines what actions can be taken pursuit to an expressed “common concern”.
Examining the invocation of “common concern” as a jurisdictional technology allows for a more
nuanced understanding of how authority pursuant to a “common concern” is actualized differentially in
the North and South. In contrast to the earlier concept of “common interest” in international
environmental law that was directed towards established international jurisdiction over shared resources
or areas beyond the jurisdiction of any nation states,143 the invocation of “common concern” in the
UNFCCC pertains to matters spatially within nation states. The effect of this designation, as Kiss and
Shelton outline, is it removes the topic of concern from a state’s exclusive jurisdiction and makes it a
138 Paul Baer et al, “Greenhouse Development Rights: towards an equitable framework for global climate policy” (2008)
21:4 Cambridge Rev Intl Affairs 649.
139 See Rajamani, supra note 96.
140 Alexander Kiss “The Common Concern of Mankind” 27 Env Pol L cited in Second report on the protection of the
atmosphere by Shinya Murase, Special RapporteurInternational Law Commission, 67th session, A/CN.4/681 (2 March
2015), fn 97.
141 Dorsett & McVeigh, supra note 129 at 118.
142 Ibid.
143 Dinah Shelton, “Common Concern of Humanity” (2009) 39:2 Env Pol L 83
148 Windsor Yearbook of Access to Justice 2016
“legitimate matter for international regulation”.144 As such, the designation of a matter of “common
concern” could be understood as a technology that authorizes an international jurisdiction over that
domain of concern. Nonetheless such a designation does not remove a state’s sovereignty over the topic
in question. Instead it establishes a complicated balancing between international and domestic
jurisdictional authority over the domain of common concern, whereby the right of the international
community to act is balanced against national sovereignty, and national exclusive jurisdiction is subject
to international obligations.145
This authorization of international jurisdiction and this complicated balancing between international
and national jurisdictional authority over the domain of common concern is necessarily formally global
in space. That is, emissions of greenhouse gases in the United States or in Senegal are similarly
incorporated in this domain of this concern. However, TWAIL scholarship has importantly
demonstrated the much more “porous” nature of Third World sovereignty in relation to international
intervention; that is, the way in which for some countries sovereignty acts as a strong “bulwark” against
international obligations, while for other countries sovereignty provides only a very limited “shield”
against imposed international forms of action.146 That is, the invocation of “common concern”
establishes an international jurisdiction that is formally global but differentially actualized.
This analysis of how an international jurisdiction ordered around a “common concern” is
differentially actualized and can be differentially materialized has three key implications. Firstly, it
points to how countries in the South can be differently compelled to take action pursuant to a “common
concern” if they are subject to conditionality through debt or in need of climate finance, than countries
of the North who are providers of this finance. Secondly, it points to a responsibility gap, where those
countries responsible for the greatest proportion of current and historical emissions are also least subject
to an international jurisdiction pursuant to a “common concern” about the climate. Finally, it explains
how countries of the South can be differentially compelled to adopt specific forms of action pursuant to
the invocated “common concern”, which in this instance has manifested in the establishment of new
commodities of carbon and new markets for their circulation.
To understand the forms of action authorized by an invocation of “common concern”, it is necessary
to first problematize the ways in which climate change coalesces into specific representations as
“scientific phenomenon”, as an “object” of governance and as a “problem” for international law.147 The
modes by which the “problem” of climate change is framed is not neutral; they are themselves effects of
specific assemblages of material and discursive power, that create a “field of intelligibility” that has the
effect of enabling certain forms of actions and actors while constricting and marginalizing others.148
144 Alexandre Charles Kiss & Dinah Shelton, Guide to International Environmental Law (Martinus Nijhoff Publishers,
2007) at 14.
145 Ibid.
146 Anghie, supra note 103.
147 Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge: Cambridge University Press, 2013) at 164.
148 Bertie Thomas Russell, Interrogating the Post-Political: The Case of Radical Climate and Climate Justice Movements
(PhD Thesis, University of Leeds, 2012) [unpublished] at 15. See also Sheila Jasanoff, “A New Climate for Society”
(2010) 27:2-3 Theory, Culture and Society 233.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 149
Contestation around the framing of problems is simultaneously contestation over the form of jurisdiction
that is enlivened in response and what actions, responses and actors are authorized.149
The specific understanding of the problem of climate change at play in the UNFCCC is evident in
how the primary objective of the Convention is articulated as the “stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous anthropocentric interference
with the climate system”.150 Crucially, however, the objective also iterates that “such a level should be
achieved … [in a manner] to enable economic development to proceed in a sustainable manner”.151
This framing of the “problem” of “common concern” has two key implications for directionality in
which it is expressed, spatially and temporally. Firstly, the concern is directed “outward” not “inward”,
that is primarily concerned with the direct effects that produce climate change – GHG emissions – rather
than their causes, the “human activities [that] have been substantially increasing the atmospheric
concentration of greenhouse gases”.152 As such, the regulatory objectives are directed not towards
addressing these causes, such as fossil fuel extraction, but towards addressing the aggregate level of
GHG emissions, without distinction for the social context in which these emissions arise. As such, the
objectives of the agreement are translated from a political goal and antagonistic of transforming these
causes and “overcoming fossil fuel dependence by entrenching a new historical pathway” to a more
technical goal of achieving “measurable, divisible greenhouse-gas ‘emission reductions’”.153 Moreover,
there are jurisdictional implications of this framing. Positing the object of regulation as atmospheric
build-up of GHG calls for the extension of new forms of supranational regulation, rather than an
examination of the ways in which international law is already “complicit in creating the climate crisis”
through its “facilitating of an oil-based, capitalist economy.”154 Secondly, the concern is directed into
the future, rather than a problem of the connections between the past, present and future.155
The dual objective of “greenhouse gas stabilization” alongside the continual pursuit of economic
growth demonstrates the quasi-transcendental positing of economic growth in relationship to
international law, a positioning that prevents the regime from addressing the tensions between economic
growth and ecological limits, or economic growth as a problem for sustainability. Within the UNFCCC
regime, tensions between ecological limits and imperatives of economic growth were mediated by a
third term, efficiency. This manifested itself differently in the North and South: as a program for
149 See also Sara Dehm, “Framing International Migration” (2015) 3:1 London Rev Intl L 133.
150 UNFCCC, supra note 11, Article 2. For an interesting recent example of this, see the ILC programme of work on the
‘protection of the atmosphere’ and the clear jurisdictional boundary-work that was done to frame the scope of the ILC’s
work so as not to interfere with the UNFCCC’s jurisdiction over international co-ordination to address climate change
mitigation.
151 UNFCCC, ibid, Article 2.
152 UNFCCC, ibid, preamble.
153 Larry Lohmann, “When Markets are Poison: Learning about Climate Policy from the Financial Crisis” (The Corner
House, 2009) [Lohmann, “Financial Crisis”].
154 Shirley V Scott, “Is the Crisis of Climate Change a Crisis for International Law: Is International Law too Democratic, too
Capitalist and too Fearful to Cope with the Crisis of Climate Change?” (2007) 14 Australian Intl LJ 31 at 32, 35-36.
155 Anne Orford, “On international legal method” (2013) 1:1 London Rev Intl L 166 at 176.
150 Windsor Yearbook of Access to Justice 2016
“ecological moderation” in the North156 and as a program of “sustainable development” in the South.157
The effects of this imperative of efficiency were two-fold, determining both the quantification of targets
and the means by which they could be achieved. The targets taken on in the 1997 Kyoto Protocol, of a
five percent reduction of developed states’ greenhouse gas emissions from their 1990 levels, were
primarily a result of political negotiation. However, the imperative of aggregate economic efficiency
underpinned the three “flexibility mechanisms” introduced in the Kyoto Protocol, namely carbon
trading,158 and the two project-based offset mechanisms “CDM”159 and joint implementation. They are
based on the premise that mitigation should take place where it is cheapest to do so. A condition of
possibility for this argument is a prior understanding of climate action in standardized and substitutable
terms: that is, the ability to think of different actions contributing to climate change as “equivalent” in
some way and therefore easily exchangeable. As a result, climate action, and the myriad ways in which
ecological change unfolds, must become expressible, measureable and assessable in terms of a “general
equivalent”. Within this imaginary, it is the one tonne of carbon dioxide equivalent (1tCO2e) which
operates as the “general equivalent” and this rubric becomes a means by which mitigation action in one
place can be compared to that in another and its contribution to a global aggregate goal can be evaluated.
This substitutability of emission reductions, or the ability to render very different actions
commensurable through the rubric of CO2e, is the outcome of various techniques that make it possible to
abstract climate mitigation actions from their “place, technology, history and greenhouse gas type”.160
This positioning of 1tCO2e as a “general equivalent” capable of measuring the quality of mitigation
action relies first upon defining mitigation objectives in aggregate terms as specific global CO2
reduction targets, that is defining mitigation in terms of achieving “measurable, divisible greenhouse-gas
emission reductions”161 and aggregate global targets. Larry Lohmann has problematized this
assumption, suggesting more political ways of understanding climate mitigation in terms of situated and
contextual transitions towards decarbonization or “overcoming fossil fuel dependence by entrenching a
new historical pathway”.162 In this formulation there remains a global objective, that of social
transformation towards decarbonization; however, there is no way of measuring contextual and situated
progress toward this objective in standardized terms or rendering different actions towards this objective
commensurable. In fact, transformation towards decarbonization requires precisely different actions in
different places, because social and ecological changes unfold in contextual, situated and messy ways,
and the assessment of its unfolding is only measurable against a unique and path-dependent envisioned
trajectory being pursued in each situated context.
156 On ecological modernisation see Arthur PJ Mol & David A Sonnenfeld, “Ecological Modernisation Around the World:
An Introduction” in Arthur PJ Mol & David A Sonnenfeld, eds, Ecological Modernisiation around the World:
Perspectives and Critical Debates (London: Frank Cass, 2000) 3
157 For a critical perspective on sustainable development see Arturo Escobar, Encountering Development: The Making and
Unmaking of the Third World (Princeton, NJ: Princeton University Press, 1995) at 192-211.
158 Kyoto Protocol, supra note 28 at Article 17.
159 Ibid at Article 12.
160 Lohmann, “Financial Crisis”, supra note 153 at 29.
161 Ibid.
162 Larry Lohmann, “Uncertainty Markets and Carbon Markets: Variations on Polanyian Themes” (2010) 15:2 New Political
Economy 225 at 237.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 151
D. The Political and Economic Organization of the International
The construction of the “generalized equivalent” that carbon markets depend upon, and what Larry
Lohmann has called “endless algebra of the carbon markets”163 they give rise to, are constitutively
dependent upon a prior conceptualization of climate action to be carried out by the “international
community”, imagined as an entity, in aggregate terms. However, the inverse is not true. The
conceptualization of climate action in aggregate terms does not necessarily give rise to the utilitarianism
of markets. Instead, positing the aggregate climate action that the “international community”, imaged as
an entity, could also open up a political space within the international for contestation about the
equitable distribution of burdens. In the climate regime this contestation has happened through the
principle of CBDR, a burden-sharing principle premised on co-operation towards a collective goal.
In more recent years, however, the, trajectory of the international regime has been towards the
dismantling of this political organization of “common concern”. The form of the international regime
has been transformed from the “top-down” Kyoto structure of aggregate targets, divided on a principle
of equity, to a “bottom-up” pledge and review model of voluntary commitments based on “national
circumstances”. The emergence of a more “bottom up” form of climate agreement can be seen in the
Bali Action Plan of 2007.164 However, it was the highly controversial Copenhagen Accord that first
articulated a “pledge and review” framework for mitigation.165 While it was strongly opposed by many
developing countries in 2009, this model of “bottom up” mitigation was confirmed in the Cancun
Agreement on Long-term Co-operative Action166 and in the negotiations in the Ad-hoc Working Group
on the Durban Platform for Enhanced Action towards a Paris agreement to be reached in 2015. At the
Warsaw COP, countries were asked to make preparations for submitting their “international nationally
determined contributions”,167 while the Lima Call for Climate Action put forward more detailed
modalities and specifications for these.168 The mitigation pledges in the Paris Agreement are structured
around “bottom-up” “nationally determined contributions” put forward by countries.
This shift from a “top-down” to a “bottom-up” model has two key implications. Instead of an
aggregate international goal divided on the basis of political contestation around principles of equity,
countries now put forward their own voluntary and “nationally determined” contributions. What is lost
in this formal decentralization of mitigation commitments is an internationally grounded normative basis
from which to make an assessment of the justice of the proposals put forward, that is, whether
commitments as stated represent a “fair share” or an equitable distribution of the burdens of responding
to the climate crisis. A civil society review found that the ambition of developed countries articulated in
their “national determined contribution” pledges fall well short of what could be considered their “fair
share”, with the United States’ and the European Union’s pledges representing only about a fifth of what
could be considered their “fair share”.169 Moreover, while there is an internationally articulated
163 Larry Lohmann, “The Endless Algebra of Climate Markets” (2011) 22:4 Capitalism, Nature, Socialism 93.
164 Decision 1/CP.13, “Bali Action Plan” FCCC/CP/2007/6/Add.1 (14 March 2008).
165 Decision 2/CP.15, “Copenhagen Accord” FCCC/CP/2009/11/Add.1 (30 March 2010).
166 Decision 1/CP.16, “The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term
Cooperative Action under the Convention” FCCC/CP/2010/7/Add.1 (15 March 2011).
167 Decision 1/CP.19 ‘Further advancing the Durban Platform’ FCCC/CP/2013/10/Add.1 (31 January 2014).
168 Decision 1/CP.20, ‘Lima Call for Climate Action’ FCCC/CP/2014/10/Add.1 (2 February 2015).
169 Civil Society Review, Fair Shares: A Civil Society Equity Review of INDCs: Summary (October 2015) online:
152 Windsor Yearbook of Access to Justice 2016
(inadequate) “shared objective”, namely that of limiting warming to an increase of 2 degrees Celsius,170
annual reports released by the UNEP each year show a growing “emissions gap” between the
decentralized, national commitments and what would be necessary to achieve these objectives.171 In this
process of formal decentralization of the regime, a different model of the “international” community has
appeared: the UNFCCC is focused less on the distributive struggles over the equitable burden sharing
towards a shared international goal, and more on the structuring of a specific economic environment that
“incentivizes” national action.
VI. MOVING TOWARDS ALTERNATIVE COMMONALITIES
There have been increasing civil society protests directed at the UNFCCC processes. In 2007
Indigenous peoples protested outside the UNFCCC after being excluded from a civil society meeting
with the UNFCCC Secretary, wearing gags that read “UNFCCC”.172 Similarly, at the Poznan COP in
2008, Indigenous peoples protested after reference to their rights was excluded on a decision relating to
REDD+.173 The protests that occurred at the 2009 Copenhagen COP were widely seen as crystallizing
the climate justice movement. “Hopenhagen”, as it was sometimes called, was widely promoted as the
summit that would “determine humanity’s future” and was attended by 115 heads of state and over
40,000 people from governments, NGOs, IGOs, media and UN agencies. Outside, in the streets of
Copenhagen, over 100,000 people marched, carrying banners with slogans including “nature doesn’t
compromise” and “climate justice now”. They were calling on the international community, as
represented in this institution, to live up to the promise of “common concern” animating the Convention,
to be future-oriented and develop a legally binding treaty that recognized the intra-generational justice
questions central to the climate crisis - the North’s historical and ongoing responsibility for its causes
and the extreme vulnerability of communities in the Global South. The summit reached its
unsatisfactory conclusion, marred by low ambition, corporate capture and the predominance of neo-
liberal market-oriented solutions. It produced the controversial and non-binding “Copenhagen Accord”
that was “noted” by the COP in an eleventh hour, backroom negotiation. Thousands of activists from the
North and the South marched, not to call on the summit to act, but to protest its form of action, as 200
conference delegates simultaneously staged a walk-out with the aim of collectively holding a separate
People’s Assembly for Climate Justice. This protest has been read as “indicating a new form of political
< http://civilsocietyreview.org/> at 3.
170 For many this is an aggregate goal that already sacrifices the interests of many; delegates at Copenhagen described an
agreement with this objective as a ‘suicide pact’ for parts of Africa and low-lying island states. See John Vidal &
Jonathan Watts, “Copenhagen closes with weak deal that poor threaten to reject” The Guardian, (19 December 2009),
online: <http://www.theguardian.com/environment/2009/dec/19/copenhagen-closes-weak-deal>.
171 United Nations Environment Programme, “The Emissions Gap Report 2014” (UNEP, 2014), online:
<http://www.unep.org/publications/ebooks/emissionsgapreport2014/portals/50268/pdf/EGR2014_LOWRES.pdf>.
172 See Climate & Capitalism, “Indigenous peoples protest exclusion from Bali talks” (7 December 2007), online:
<http://climateandcapitalism.com/2007/12/07/indigenous-peoples-protest-exclusion-from-bali-talks/>.
173 Chris Lang, “‘No rights, no REDD’: Indigenous Peoples protest in Poznan” REDD-Monitor, (9 December 2008), online:
<http://www.redd-monitor.org/2008/12/09/no-rights-no-redd-indigenous-peoples-protest-in-poznan/>.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 153
engagement” described as “diagnonalism”, breaking down “inside/outside” and “for/against”
distinctions by fermenting physically and intellectually a “third space”.174
COP 16 (2010) in Cancun could be seen as the site where these possibilities closed down. The
“consensus” decision was pushed through despite the following objections from Bolivia: “[a]n accord
where only the powerful win is not a negotiation, it is an imposition” and that “[a] so-called victory for
multilateralism is really a victory for the rich nations who bullied and cajoled other nations into
accepting a deal on their terms”.175 The observer status of vocal critics of the negotiations was also
revoked, with Tom Goodtooth, the executive director of the Indigenous Environment Network
temporarily blocked from entering.176
At the Warsaw COP in November 2013, one day prior to the scheduled completion of talks, civil
society groups including Friends of the Earth International, the International Trade Union
Confederation, PanAfrican Climate Justice Alliance, Bolivian Platform on Climate Change, Jubilee
South, 350.org, Greenpeace, WWF, Oxfam, ActionAid and others, walked out of the negotiations. Their
message, “polluters talk we walk”, pointed to what they described as the “toxic influence of dirty
energy companies on the climate talks and the positions of many national governments”.177 In
particular, they pointed to the decision of the Polish government to invite sponsorship from large
polluters including PGE, Alstom, LOTOS, ArcelorMittal, BMW, General Motors and Emirates
Airlines,178 and the Polish Ministry of Economy co-hosting with the World Coal Association an
“International Coal and Climate Summit”. 179 In a statement, campaign group 350.org wrote:
By walking out of COP19, we’re walking into a fight with the real enemies to progress:
the coal, oil and gas companies that have a stranglehold over our governments and
economy. It’s time to stop sitting in negotiating halls and stand with the Philippines and
174 Ibid at 21.
175 Climate & Capitalism, “Bolivia: Cancun deal is hollow and false; its cost will be measured in human lives”, (11
December 2010), online: <http://climateandcapitalism.com/2010/12/11/bolivia-cancun-deal-is-hollow-and-false-its-cost-
will-be-measured-in-human-lives/>.
176 See “Prominent Indigenous Environmental leader Tom Goodtooth blocked from UN Climate Talks” Democracy Now, (9
December 2010), online: <http://www.democracynow.org/2010/12/9/prominent_indigenous_environ-
mental_activist_blocked_from_un>.
177 “Polluters talk, we walk: Mass walk out of corporate-captured climate talks in Poland”, (21 November 2013), online:
<https://www.foeeurope.org/polluters-talk-we-walk-211113>.
178 “Open Letter Calling for rules to protect the integrity of climate policy-making from vested corporate interests”, (21
November 2014), online: <http://corporateeurope.org/blog/open-letter-calling-rules-protect-integrity-climate-policy-
making-vested-corporate-interests> [“Open Letter”].
179 Corporate Europe Observatory describing the ‘unprecedented corporate influence’ as having a ‘detrimental impact on
progress in the talks’ (‘Polluters talk, we walk’ Corporate Europe Observatory,
<http://corporateeurope.org/blog/polluters-talk-we-walk> [‘Polluters talk, we walk’]). In an Open Letter 75 civil society
groups wrote that “at risk are both our climate and the integrity of the UNFCCC as a multilateral process to tackle
climate change”, “Open Letter” supra note 178). See also Ortiz et al “How Corporations Rule: Part 4: Anglo American’s
dirty energy lobby and its false climate solutions” (Corporate Europe Observatory, Friends of the Earth International and
Transnational Institute, 2014), online:
<https://www.tni.org/files/download/17_foei_corporate_capture_report_eng_mr.pdf>.
154 Windsor Yearbook of Access to Justice 2016
millions more who are calling for real climate action in the aftermath of Typhoon
Haiyan.180
Similar concerns were raised that the Paris COP 21 in December 2015 would represent yet another
“corporate COP” and generated significant civil society opposition.181 Radical climate justice groups
debated the need to “shut down” the “conference of the polluters”.182 Activists promised “the largest
mass civil disobedience climate justice action that we have ever seen in Europe” blocking streets and
infrastructure in Paris if certain “red lines” necessary for a livable planet are crossed in the
negotiations.183 However, in November 2015, the French government declared a state of emergency in
the wake of terrorist attacks and banned protests, marches and other “outdoor activities” during the Paris
summit.184 Nonetheless, climate activists defied this ban on protest throughout the conference and
thousands took to the streets after the final text was released.185
For grassroots climate justice movements, however, the modes of authority and authorization
described above pose a dilemma about whether to engage with the UNFCCC negotiation process. This
dilemma arises precisely because of the impossibility of letting go of the promise of enacting a form of
international “common concern” capable of urgently addressing the crisis that is invested in these
institutional forums. However, holding to this promise risks authorizing conceptions of “common
concern” that might do violence to those most marginalized.
The rhetoric and reality of the 2014 Climate Summit and Peoples’ Climate March provides an
illustration. The Peoples’ Climate March was called for by UN Secretary-General Ban Ki-Moon himself
and was held two days before the September 2014 UN Climate Summit.186 It brought 400,000 people to
the streets of New York, and a further 2,646 solidarity rallies were held in 162 countries around the
world as part of the largest-ever popular mobilization about climate change. The rally foregrounded
Indigenous peoples and posited them as at the “frontlines of crisis and forefront of change”. The banner
carried by the Indigenous Environment Movement at the front of the march read “Respect Indigenous
Peoples’ Rights: End CO2lonialism”.
180 “Polluters talk, we walk”, supra note 177.
181 Environmental Action, “More than 224,000 call on UNFCCC to kick big polluters out of climate policy”, online:
< http://environmental-action.org/blog/kick-big-polluters-climate-policy/>.
182 Patrick Bond, “Climate Movement Across the Movements” CounterPunch, (31 March 2015), online:
< http://www.counterpunch.org/2015/03/31/a-climate-movement-across-the-movements/>.
183 Arthur Nelson Brussels, “Activists promise largest climate civil disobedience ever at Paris summit”, The Guardian, (8
October 2015), online: <http://www.theguardian.com/environment/2015/oct/08/activists-promise-largest-climate-civil-
disobedience-ever-at-paris-summit>.
184 For a discussion and critique of this ban on protest see Naomi Klein, “What’s really at stake at the Paris climate
conference now marches are banned”, The Guardian, (20 November 2015), online: <
http://www.theguardian.com/commentisfree/2015/nov/20/paris-climate-talks-protesters-hollande-violence>.
185 “Photos: Thousands Protest in Paris to Urge Climate Action” Inside Climate News, (12 December 2015), online:
<http://insideclimatenews.org/news/12122015/photos-paris-cop21-climate-change-protest-red-lines>.
186 See UN Climate Summit website, <http://www.un.org/climatechange/summit/>.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 155
Figure 1: "End CO2lonialism" picture taken on 24 September 2014 at the Peoples’ Climate March by Joe Brusky (Joe Brusky
Photography / Light Brigading) Image used with permission.
Inside the UN Climate Summit, the march was invoked by assembled leaders as authorizing their
power to act in the name of the peoples of the world. For Ban Ki-moon, the march was a message to
which he “hope[d] the leaders of the world listened”, while President Obama reflected that “as citizens
of the world keep marching we cannot pretend that we don’t hear their call”. Leaders produced specific
narratives of the march so that it operated as a “site or space of enunciation” through which their own
authority was given “shape” and “set in motion”.187 While the summit carefully mobilized its
representations of the march as a “call to action” in order to reground its renewed authority as a site of
promise capable of acting on a “common concern”, these invocations necessarily required
invisibilization of these other voices and “subjugated knowledges” whose critique was directed at the
form of action taken and the forms of commonality imagined. That is, even as institutional power is
authorized in the name of a global need for action, and particularly in the name of those presented as
most vulnerable, the actual voices and perspectives of “frontline” communities about the types of action
that should be pursued are simultaneously erased and dismissed.
The summit was attended by 100 heads of state and government and 800 leaders from business,
finance and civil society. Its objective was to provide “political momentum for a meaningful universal
climate agreement in Paris in 2015” to replace the Kyoto Protocol.188 The rhetoric at the summit
presented its activities in “world-changing” terms: at the opening ceremony, the UN Secretary-General
187 Peter Rush, “An Altered Jurisdiction: Corporeal Traces of Law” (1997) 6 Griffith L Rev 144, 150, see discussion of this
in relation to international law in Sundhya Pahuja, “Laws of encounter: a jurisdictional account of international law”
(2013) 1:1 London Rev Intl L 63.
188 The Kyoto Protocol’s first commitment period (2008-2012) recently expired and, pursuant to the Doha Agreements, a
second commitment period was agreed to (2012-2020); however, this Amendment has yet to receive sufficient
ratifications to be legally binding.
156 Windsor Yearbook of Access to Justice 2016
told participants “[w]e are not here to talk but to make history”.189 For all the hype, the summit delivered
little in the way of new climate action beyond the reiteration of old commitments and the launch of
problematic initiatives. The key outcome of the summit was to confirm a specific trajectory towards
climate action – from the summit to the Lima and Paris UNFCCC meetings and call for renewed
public faith in this trajectory. Leaders at the summit continuously sought to ground the inevitability and
centrality of their own authority on the basis that they were acting on behalf of a “common concern”,
while simultaneously excluding specific voices, perspectives and knowledges in this grounding through
purporting to act in their name.
These debates about how to engage with international legal processes and institutional spaces to
address climate change echo broader debates in international law about the relationship between critique
and transformative change, and the relationship between “reformist” and “revolutionary” positions.190
However, a jurisdictional focus helps redirect the question: instead of asking whether to engage with or
disrupt the UNFCCC, we can instead focus on the question of what type of international common
concern could genuinely address the climate crisis.
Reflecting on climate justice engagements with the Copenhagen COP, Bertie Russell, Andre Pusey
and Leon Sealey-Huggins argue that it does not make sense to posit the same easy “inside/outside”
distinction in relation to the UNFCCC as movements had done in relation to the WTO. Nor did it make
sense to articulate simple alliances based on who was “against” or “for” climate change. Instead,
movements were confronted with a “complex institutional process that pulled together NGOs and
governments around the myth that they were there to ‘solve climate change’”.191 A more complex
division arose between those climate justice activists who maintained faith in the myth that the
UNFCCC could solve climate change, or for strategic purposes continued to invest in lobbying and
engagement to actualize this myth; and those who saw the COP as “an attempt to inaugurate a new
round of ‘green’ capitalist accumulation and to establish new regimes of political legitimacy”192 and
therefore as something one should position oneself antagonistically against.193 Elsewhere, prominent
activist/scholar Larry Lohmann, who has been at the forefront critical discussions of carbon markets,
self-reflectively ruminated upon the limitations of this critical focus on “false solutions” in the face of
the urgent need to build the political power of grassroots movements for climate justice.194 He suggests
189 President Obama’s 2014 UN Climate Summit Speech, 23 September 2014, online: <https://www.youtube.com/watch-
?v=oWrzXp2uJRM./>.
190 Luis Eslava & Sundhya Pahuja, “Between Resistance and Reform: TWAIL and the Universality of International Law”
(2011) 3:1 Trade, Law and Development 103.
191 Russell & Pusey, supra note 89 at 18.
192 Ibid. See also publications on climate justice movements by Transnational Institute (Brand et al, supra note 89) and
reflections in Turbulence 5 “And now for something completely different”, online: <http://turbulence.org.uk/turbulence-
5/>.
193 See also Patrick Bond’s discussion of the Durban COP where he explores in detail both the failures of the COP but also
the movement strategy to successfully delegitimize it or connect questions of climate justice with grounded, local
struggles. Patrick Bond, “Durban’s conference of polluters” (2012) 12:1/2 Ephemera: Theory and Politics in
Organisation 42.
194 Larry Lohman, “Beyond Patzers and Clients Strategic Reflection on Climate Change and the “Green Economy”’ in
Niclas Hällström, ed, What Next Volume Next III: Climate, Development and Equity (Dag Hammarskjöld Foundation
and What Next Forum, 2012) at 295.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 157
that critiques of the UNFCCC and controversies surrounding “false solutions” may have “succeeded
beautifully in distracting public and official attention from the underlying issues”,195 namely continued
fossil fuel extraction, and done little to build the forms of commonality necessary to combat this.
A jurisdictional approach helps highlight the way in which commonality has been organized within
the regime, but also what other possibilities for the organization of commonality could be envisioned. A
different way of patterning commonality, distinct from the above discussion, of both the political and
economic forms of international ordering, would be to understand climate mitigation in terms of situated
and contextual transitions towards decarbonization that are globally coordinated while focused on
specific “place-based” struggles. Moreover, this structuring of commonality around transnationally-
shared rejection of a specific developmental model and the logic of extractivism, is not utopian but is
being actualized through various struggles at the more local scale.
In theorizing social movements I draw on the history of “militant-research”, which the Argentinean
collective, Colectivo Situacions, describes as a “form of intervention and knowledge production that
‘reads’ struggles from within”.196 Geographer Bertie Russell, reflecting on his own experiences as a
researcher/participant in the 2007 Camp for Climate Action at London’s Heathrow Airport, envisions
“militant research” as an orientation that rejects the university as a referent, positioning its objective
instead as producing research that “contribute(s) to processes of critical reflection and transformation of
our movements” or “making movements move”.197 I suggest that developing a framework through which
to think of the practices of social movements not just in political terms, but also in legal terms, or in
terms of the forms of “lawful relations” they establish, is one contribution critical legal scholars can
make.
Pearse and Böhm flag “cooperative decarbonisation” as an emerging international framework for
international action that is focused on particular industries or commodities,198 citing Christoff and
Eckersley’s discussion of a “coal non-proliferation treaty”.199 Arun Martin has explored the possibility
of a “coal-export safeguard regime” as an alternative regulatory strategy to “manage the end-use
transboundary pollution risks embodied in coal exports”.200 While the UNFCCC focuses on current and
future mitigation, this patterning of commonality includes responsibility for historic, present and future
harms. It is a commonality articulated against fossil fuels in particular, and it does not seek to posit that
the concern for the climate is universally shared. In her recent book, Naomi Klein discusses a
195 Ibid at 319.
196 Cited in Nate Holdren & Sebastian Touza, “Translators’ Preface” in Colectivo Situaciones, 19 & 20: Notes for a New
Social Protagonism, translated by Nate Holdren & Sebastián Touza (New York: Minor Compositions, 2002) at 3. See
also Colectivo Situaciones, “On the researcher-militant” (2003) translated by Sebastian Touza, online:
<http://eipcp.net/transversal/0406/colectivosituaciones/en>.
197 Bertie Russell, “Beyond activism/academic:militant research and the radical climate and climate justice movement(s)”
(2014) Area . In relation to the role of academic/activists in the climate movement see also Kevin Mason, “Academics
and Social Movements: Knowing Our Place, Making Our Space” (2013) 12:1 ACME: An International E-Journal for
Critical Geographies 23.
198 Pearse & Böhn, supra note 49 at 9.
199 Peter Christoff & Robyn Eckersley, “A Coal Non-Proliforation Treaty?” Paper presented to the Beyond Coal workshop,
cited in Pearse & Böhm, supra note 49.
200 Aran Martin, “Commodity exports and transboundary atmospheric impacts: regulating coal in an era of climate change”
(2014) 23:4 Env Pol 590.
158 Windsor Yearbook of Access to Justice 2016
transnational movement she calls “blockadia”: the “increasingly interconnected pockets of resistance”
against fossil fuels that are “blocking pipelines, opposing new extraction projects, and quite willingly
putting bodies on the line”.201 For her, these “place-based stands” that are “stopping climate crimes in
progress”202 are creating a “transnational space, roving space, where regular people are stepping in
where our leaders are failing”203 and providing a “moral antidote” to political inaction.204
At times, these actions are explicitly “internationalized”. For example, in October 2014, a group of
activists from 12 Pacific countries, calling themselves the Pacific Climate Warriors, using traditional
canoes, blockaded the Newcastle Coal Export Terminal in Australia, the largest coal port in the world,
stopping all ships for a day. Their slogan was “we’re not drowning, we’re fighting”.205 In July 2015,
Greenpeace activists swung from the St. Johns Bridge in Portland, Oregon for over 24 hours, creating a
human blockade to prevent Shell’s icebreaking ship, Fennica, from leaving for the Arctic to assist with
exploratory drilling.206 They carried enough food for a week as they dangled on ropes from the bridge
and unfurled banners fluttering red and yellow against the Pacific, supported by “kayaktivists” in the
water below. Klein argues that this “resistance to high-risk extreme extraction is building a global,
grassroots, and broad-based network the likes of which the environmental movement has rarely seen”.207
She hesitates to call it an “environmental” movement because, she argues, the stakes are higher,
interpreting the movement as “primarily driven by a desire for a deeper form of democracy, one that
provides communities with real control over those resources that are most critical to collective survival –
the health of the water, air, and soil”.208
Klein has rightly been criticized by Jodi Dean for the simplification she makes in which “local
environmentalism” is always counterpoised to “global extractivism”, which fails to engage with the
complex relations in which “locally-based” groups may be just as likely to support environmentally-
destructive projects.209 Dean also criticizes the essentialist and culturalist positioning of Indigenous
identity in the slot of the “noble savage”,210 which embraces a “cannibalistic Western logic that readily
constructs other cultural possibilities as resources for Western needs and actions.”211 Rather than
201 Naomi Klein, This Changes Everything: Capitalism vs. the Climate (New York: Simon & Schuster, 2014) [Klein, This
Changes Everything].
202 Ibid at 295.
203 “Naomi Klein on the People’s Climate March and the Global Grassroots Movement Fighting Fossil Fuels”, Democracy
Now, (18 September 2014), online: <http://www.democracynow.org/2014/9/18/naomi_klein_on_the_peoples_climate>.
204 Klein, This Changes Everything, supra note 201 at 295.
205 “The coal port is the largest in the world and there are plans for it to expand and we want to bring the message that the
expansion is definitely going to have an effect on the islands, not just in the Marshalls but all over the Pacific,” said
Milan Loeak, online: Australian Broadcasting Corporation <http://www.abc.net.au/news/2014-10-13/pacific-climate-
warriors-to-protest-newcastle-coal-port/5809392>.
206 Christine Hauser, “Greenpeace Activists Dangle from Oregon Bridge for 2nd Day to Protest Arctic Drilling”, New York
Times (30 July 2015) online: http://www.nytimes.com/2015/07/31/us/greenpeace-activists-dangle-from-oregon-bridge-
for-2nd-day-to-protest-arctic-drilling.html?_r=1.
207 Klein, This Changes Everything, supra note 201 at 295.
208 Ibid.
209 Jodi Dean, “This Changes Some Things” I Cite, (17 March 2015), online: <http://jdeanicite.type-
pad.com/i_cite/2015/03/this-changes-some-things.html>.
210 Ibid.
211 Harroway cited in Larry Lohmann, “Green Orientalism” (Dorset, UK: The Corner House, 1993).
Vol. 33 (3) Carbon Colonialism or Climate Justice? 159
assuming particular positions or identities, or assuming identities equate to specific forms of political
action, a focus on the way a commonality is being actualized directs attention to the messy, contested
processes of alliance-building or how identifications are themselves constituted in and by struggle. As
Gigi Roggero insists, “political composition [is] a process”.212 The construction of a commonality as a
genuine meeting point is, like any construction of mutual solidarities, not a “smooth process” but fraught
and transversed with antagonisms.213 A global “common concern” therefore cannot simply be posited,
but more attention needs to be given to the hard work involved in building commonalities, at times
through grounded material practices of solidarity.
Analytical attention to this requires more focus on the plurality of laws and jurisdictional forms. For
example, on 23-25 January 2013, representatives from Indigenous Nations, tribes, and governments met
on Ihanktonwan homelands for a “Gathering to Protect the Sacred”, the conclusion of which was the
signing of an “International Treaty to Protect the Sacred from Tar Sands Projects”.214 “We affirm that
our laws define our solemn duty and responsibility to our ancestors, to ourselves, and to future
generations, to protect the lands and waters of our homelands.”215 This project is interesting for the
performativity it entails; it references historical treaties between Indigenous collectivities, but also
references the grammar of international legal treaties and the ceremony of treaty-making processes from
which international law excludes Indigenous groups. Anne Orford has drawn attention to the lack of
consideration by non-Indigenous lawyers of “indigenous law as a source of law governing relations
between nations - that is, as a source of international law” because international law’s recognition of law
and its sources reflects the law of the powerful, the traditions of the occupiers and that which derives
from the nation state.216 She highlights the insufficiency of this approach, insisting instead that
“international law must itself be understood as plural with the legal spaces of the South if justice is to be
possible”.217
212 Gigi Roggero, “Five Theses on the Common” (2010) 22:3 Rethinking Marxism: A Journal of Economics, Culture &
Society 357
213 Cumbers cited in Mason, supra note 197 at 38.
214 “International Treaty to Protect the Sacred from Tar Sands Signing Ceremony”, IC Magazine, 2 February 2013, online:
<https://intercontinentalcry.org/international-treaty-to-protect-the-sacred-from-tar-sands-signing-ceremony/>.
215 Ibid. See also that in September 2014, First Nations from southern British Columbia and Vancouver Island, Canada and
Washington State, United States, signed an International Treaty to Protect the Sacredness of the Salish Sea, which
declared the Kinder Morgan Trans Mountain Expansion Project ‘illegal’ under Salish Coast Law and explicitly
recognized the threat posed by climate change. Article I provides:
We are the Indigenous Peoples of the Salish Sea. We are distinct peoples, each with our own
territories, languages & cultures, but bound together by interlocking ties of kinship and our deep
connection to the Salish Sea and the waters that flow into it. The Salish Sea has been our home, the
feast bowl of our sustenance, and the place through which we connect with all our ancestral and living
relations. It is the source of our stories, traditions, and ancestral privileges and prerogatives. Our
ancestral laws placed upon us the sacred responsibility to protect the Salish Sea and the tributaries that
feed it. The wellbeing of our intellect, emotions, spirit and bodies depend on the wellbeing of the
Salish Sea.”
Tsleil-Waututh Nation Sacred Trust Initiative, “International Treaty to Protect the Salish Sea”, online:
<http://www.protectthesacred.org/intl_treaty_to_protect_the_sacredness_of_the_salish_sea>.
216 Anne Orford, “Ritual, Mediation and the International Laws of the South” (2007) 16 Griffiths L Rev 353 at 353.
217 Ibid at 372.
160 Windsor Yearbook of Access to Justice 2016
From a perspective akin to jurisdictional patterning or ordering of the international, such movements
described can be understood in legal terms as experiments towards a different patterning of
commonality, where a shared “common concern” does not authorize an expanded international
jurisdiction. Rather, the shared concern represents a potential “meeting place” of situated and contextual
conjunctures, themselves invariably a product of local and global factors. This is a patterning based
upon an expression of a shared “no” to the degradation of communities and the land, but potentially also
ingrained in them is a resounding “yes”, in that such practices of disruption can also be the “affirmative
enactment of another modality of being, a different way of relating to and with the world” and, at times,
underpinned by and authorized by different laws.218
VII. CONCLUSION
This article has explored Third World, civil society and climate justice movements’ critiques of
dominant, market-orientated approaches to addressing the climate crisis under the UNFCCC. It first
outlined the critiques of carbon markets made by activists and scholars and documents a long history of
protest against approaches adopted by the UNFCCC. It then discussed approaches of Third World states
and scholars to climate change, arguing that although the principle differentiation in international
climate law continues to be critical, much more attention needs to be paid to the way the principle of
CBDR is being interpreted and what it authorizes. Moreover, I suggested this principle assumed a
specific organization of “common responsibilities” that in the increasingly “bottom-up” regime is no
longer present. The next section of the article drew attention to the different ways in which a “common
concern” about the climate crisis can be articulated. It adopted a jurisdictional approach in order to pay
attention to the plurality of jurisdictional forms that the organization of “commonality” can take. This
section paid attention to how the UNFCCC was authorized by the invocation of a “common concern”
and how this concept of “common concern” was articulated in practice over time as the regime
developed. This analysis showed that, although the operations of carbon markets continue to rely on an
“economic commonality” to justify offsets in the interests of economic efficiency, the “political”
organizations of the regime increasingly became more decentralized. This analysis highlighted the very
different organization of the “economic” and the “political” in the international climate regime. The
final substantive section of the article explored a different way of organizing a “common concern”,
drawing on the practices of a global movement against fossil fuel extraction and in defence of land. It
suggested that such a patterning of a global “common concern” that allowed for a plurality of
perspectives and laws presents perhaps the best hope for decolonial forms of climate justice. At this
critical conjuncture, this article has suggested that the ways in which global commonality is organized
and patterned are critical. The concept of “common concern” is neither innately colonial or decolonial,
218 Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recongition (Minneapolis: University of
Minnesota Press, 2014) at 169. This argument draws heavily on Coulthard’s theorizations of the use of blockades as a
decolonization strategy in the context of Canadian settler-colonialism. The blockades he is describing are much broader
than, but at times do overlap with, blockades against extractivism. For him, such blockades as well as being reactive are
also affirmative in that they are an enactment of Indigenous law.
Vol. 33 (3) Carbon Colonialism or Climate Justice? 161
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The most important book yet from the author of the international bestseller The Shock Doctrine, a brilliant explanation of why the climate crisis challenges us to abandon the core “free market” ideology of our time, restructure the global economy, and remake our political systems.In short, either we embrace radical change ourselves or radical changes will be visited upon our physical world. The status quo is no longer an option. In This Changes Everything Naomi Klein argues that climate change isn’t just another issue to be neatly filed between taxes and health care. It’s an alarm that calls us to fix an economic system that is already failing us in many ways. Klein meticulously builds the case for how massively reducing our greenhouse emissions is our best chance to simultaneously reduce gaping inequalities, re-imagine our broken democracies, and rebuild our gutted local economies. She exposes the ideological desperation of the climate-change deniers, the messianic delusions of the would-be geoengineers, and the tragic defeatism of too many mainstream green initiatives. And she demonstrates precisely why the market has not—and cannot—fix the climate crisis but will instead make things worse, with ever more extreme and ecologically damaging extraction methods, accompanied by rampant disaster capitalism. Klein argues that the changes to our relationship with nature and one another that are required to respond to the climate crisis humanely should not be viewed as grim penance, but rather as a kind of gift—a catalyst to transform broken economic and cultural priorities and to heal long-festering historical wounds. And she documents the inspiring movements that have already begun this process: communities that are not just refusing to be sites of further fossil fuel extraction but are building the next, regeneration-based economies right now. Can we pull off these changes in time? Nothing is certain. Nothing except that climate change changes everything. And for a very brief time, the nature of that change is still up to us.
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