Archive | ‘Voluntary’ International Law RSS feed for this section

UN Under Siege: Geopolitics in the Time of Trump

1 Jul

[Prefatory Note: This post is a modified and enlarged version of a talk I gave in Geneva a week ago. The audience was a blend of students of all ages from around the world, with almost none from Europe and North America, and several NGO representatives with lots of UN experience.]

 

 Why the peoples of the world need the UN: multilateralism, international law, human rights, and ecological sustainability

 

[ISMUN (International Youth & Student Movement for the United Nations), Summer School, June 28, 2017, Geneva]

 

 A Point of Departure

 

When Donald Trump withdrew American participation from the Paris Climate Change Agreement in early June of this year a bright red line was crossed. Most obviously, there were a series of adverse substantive consequences associated with weakening an agreement that was promising to provide critical interim protection against severe harms to human wellbeing and its natural habitat threatened by further global warning. U.S. withdrawal from Paris was also a rather vicious symbolic slap at multilateralism under UN auspices. We should recall that the agreement was rightly hailed at the time as the greatest success ever achieved by way of a multilateral approach to international problem solving. The Paris Agreement was indeed a remarkable achievement, inducing 195 governments representing virtually every sovereign state on the planet to sign up for compliance with a common agreed plan to address many of the challenges of climate change in the years ahead. To reach such an outcome also reflected a high degree of sensitivity to the varied circumstances of countries, rich and poor, developed and developing, vulnerable and less vulnerable.

 

The Paris withdrawal also exhibited in an extreme form the new nationalistic posture adopted by the United States in relation to the UN System, and a major retreat from the leadership role at the UN that the U.S. had assumed (for better and worse) ever since the Organization was established in 1945. Instead of fulfilling this traditional role as the generally respected cheerleader and predominantly influential leader of most multilateral lawmaking undertakings at the UN and elsewhere the U.S. Government has instead apparently decided under Trump to become obstructer-in chief. This Trump/US assault on the UN approach to cooperation among sovereign states and global problem solving and lawmaking is particularly troubling. This manifestation of the new American approach in the policy domain of climate change is particularly disturbing. To have any prospect of meeting the climate change challenge requires the widest and deepest international cooperation, and is absolutely vital for the future of human and ecological wellbeing. Such a dramatic disruptive act by the United States strikes a severe blow to the capabilities and legitimacy of the UN at a historical moment when this global organization has never been more potentially useful.

 

The credibility and severity of the threat is magnified by an evident American-led campaign to exert financial pressure to bend the Organization to the will of major funders. When the United States behaves in this manner it indirectly gives permission to other political actors to follow suit, and exerts immense pressure on the UN Secretariat and Secretary General to give ground. Saudi Arabia has used such leverage to embarrass the UN in relation to both its human rights record at home and its responsibility for war crimes against civilians, including children, in Yemen. Israel has also been the beneficiary of such delegitimizing pressures, with the UN giving ground by softening criticism, inhibiting censure, shelving damaging reports. Such backtracking by the United Nations weakens any claim to be guided in its policies and practices by international law and international morality. The weaponization of UN funding politics should awaken public opinion to the importance of finally establishing an independent funding base for the UN by way of some variant of a Tobin Tax imposed on financial transactions or international air travel. If it is desirable to encourage the UN to conduct its operations in accordance with the UN Charter and international law, UN funding should be removed from the control of governments at the earliest possible time.

 

It needs to be acknowledged and understood that this unfortunate shift in the U.S. role at the UN preceded the Trump presidency, involving a gradual American retreat from political internationalism, which reflected the outlook of an increasingly sovereignty-oriented U.S. Congress. Even an environmentally minded Barack Obama was led at the 2009 Copenhagen climate change summit to insist that national commitments to reduce carbon emissions be placed on a voluntary rather than obligatory basis, which was regarded at the time as a major setback in the effort to safeguard the future from the perils of global warming. The Copenhagen approach was also a negative development with respect to international law, substituting volunteerism for obligation in this major effort to protect human and global interests. We need to appreciate that international law in its more imperative forms already suffers from the weakness of international enforcement mechanisms. Putting compliance on a voluntary basis dilutes the ethos of good faith that guides responsible governments when giving their assent to obligatory instruments of international law.

 

Beyond this, the Obama presidency boasted of its unconditional defense of Israel at the UN, regardless of the merits of criticism, and even in contexts where the U.S. was willing to voice muted criticisms directed at Israel but only in discreet language conveyed in bilateral diplomatic channels. The UN was off-limits for critical commentary on Israel’s behavior despite the long history of unfulfilled UN responsibilities toward the Palestinian people.

 

 

 

 

Why the UN is especially needed now

 

It should be obvious to all of us that the UN is now even more needed than when it was established in 1945. At least on the surface the UN enjoyed the ardent support of every important government and their publics at the end of World War II. These sentiments reflected the widely shared mood of the global public that maintaining world peace and security required the establishment of global institutions devoted to war prevention. There existed post-1945 a somewhat morbid atmosphere of foreboding with respect to the dawn of the nuclear age that took had taken the dire form of atomic bombs dropped on two Japanese cities. The concerns arising from these unforgettable events strongly reinforced and underlay the war prevention emphasis of the UN Charter, and were culturally expressed by such major works of the imagination as Hiroshima, Mon Amour and On the Beach.

 

This grim mood also lent an aura of poignancy to the memorable opening words of the Charter Preamble—“We the peoples of the United Nations are determined to save succeeding generations from the scourge of war.” It was evident that when the UN was established the overriding global preoccupation of public opinion and of governments was to avoid any recurrence of major international warfare, especially in light of the possession of nuclear weapons. Of course, such an impression partly reflected the absence of adequate representation at the UN and other international venues of voices articulating non-Western priorities. From the beginning the non-Western members of the UN were far more focused on anti-colonialism, development priorities, and the reform of a rigged world economy than on war prevention.

 

It is worth pondering why the formal legitimating call establishing the UN, as set forth in the Preamble, was phrased as coming from ‘the peoples’ and not from the ‘governments.’ In fact, governments were not even explicitly mentioned in this foundational document. Yet as a practical matter, despite this language in the Preamble, the UN as a political actor has always been almost exclusively an Organization reflecting the will of ‘we the governments,’ and in many cases ‘we the Permanent Members of the Security Council.’ Iddn some situations the ‘we’ over time and in situations of global crises has been reduced to the government of the United States, sometimes joined by its European allies. In other words, the geopolitical dimension of UN operations has had the effect of moving the actions of the Organization on war/peace agenda items away from international law and the framework set forth in the UN Charter. It has instead given decisive authority to the most powerful members of the UN with the intended effect of concentrating UN authority in the Security Council, whose operations are more subject to geopolitical discipline in the form of the veto than to the mindfulness toward international law.

 

An understanding of this circumstance underscores the aspirational importance of constraining geopolitics and enhancing the role of international law. Respect for international law in framing UN policy must be increased if there is to be any hope that the UN will eventually fulfill the ambitions and expectations of its strongest supporters in civil society. As matters now stand these supporters are often caught between being seen as blind idealists that are enthusiastic about whatever the UN does or dismissive cynics who dismiss the UN as a great power charade that is a waste of time and money. Both of these outlooks seems unwarranted, inducing either an uncritical passivity toward the UN or exhibiting a lack of appreciation of the contributions being daily made by the UN and what could be done to make these contributions more robust.

 

 

The UN and a Populist Reform of World Order

 

Two important questions that all of us, and especially young people should be asking: how can the UN System be made more responsive to the needs and wishes of people and less dependent on the warped agendas of many governments? And how can the Organization be made more responsive to international law and less of a vehicle for geopolitical ambitions? To make the relevance of positive global populism more concrete we can ask: ‘Would the establishment of an assembly of civil society organizations or a global parliament along the lines of the European Parliament be helpful from the perspective of world peace and global justice?’ What follows are several daunting questions concerning the feasibility of such a proposal: “Can the political will be mobilized that would be needed to make realizable such a UN reform?” “Even if a UN Peoples Parliament were established would it be allowed to exert significant influence?” We should remember that some past successful undertakings, such as the establishment of the International Criminal Court (ICC), seemed utopian when proposed, and thus we should not be easily dissuaded if a project seems worthwhile. But we should also be aware that the ICC once established and operating has been chasing the mice while ignoring the tigers, which gives rise to another version of this clash between sentimentalists overjoyed that the institution exists at all and realists who believe that the ICC has surrendered to geopolitical forces, thereby betraying its overriding mission of administering justice as called for by non-compliant behavior.

 

For several years in the 1980s I participated annually in a large public event held in Perugia, Italy under the banner of ‘A United Nations of the Peoples.’ It made me wonder at the time whether the world was not being divided up into three distinct identies: ‘the Geopolitical Person’ who was increasingly dominating world politics, including the UN, ‘the Davos Person’ who at the World Economic Forum was mounting strong pressures on all governments to privilege the interests of market forces, essentially banks and corporations, above that of their own citizens, and ‘the Perugia Person’ who was on the sidelines whispering words to the grassroots community conveying the needs and aspirations of ordinary people, and by so doing, highlighting problems of poverty, peace, environment, biodiversity, health, and justice. In one sense, my analysis is an argument for a concerted public and grassroots transnational effort to magnify the Perugia whisper until it becomes a stentorian voice that is heard and heeded within the halls and conference rooms of the UN in Geneva and New York. Is such a call for positive global populism desirable, and if so, are there practical steps to be taken to make it happen? Will states feeling UN pressure reopen the withdrawal option, and weaken the Organization from the governmental end?

 

 

Reviving War Prevention

 

As it turned out the onset of the Cold War made it exceedingly difficult for the UN to be effective as a war prevention institution almost from the day it was established, although over the years it made many quiet contributions to peace when political conditions made this possible. The effort to prevent a third world war fought with nuclear weapons was mainly left up to the rival governments of the U.S. and the Soviet Union, relying on geopolitical arrangements that on occasions of confrontation sent periodic chills of fear down the collective spine of humanity, especially in Europe and North America. Global security was conceptualized around the abstract idea of deterrence, which was most simply understood as the prevention of a major war by the exchange of mutual threats of devastating retaliatory strikes with weaponry of mass destruction by these two superpowers with capabilities that were sufficiently resistant to preemptive first strikes to keep the capacity for retaliation entirely credible. This fundamental doctrine of deterrence was called ‘Mutual Assured Destruction,’ and more familiarly known by the ironically apt acronym ‘MAD.’ It amounted to a paradoxical permanent mobilization for war with the overriding goal of preventing the outbreak of war, which did strike the peace community as rationality gone mad, really mad. MAD was tied to a destabilizing ongoing arms race justified by a security rationale. Each superpower both sought to gain the upper hand and above all acted to make sure that its rival did not acquire ways of destroying its retaliatory credibility. This unstable and permanent war footing, always susceptible to accident and miscalculation, lasted throughout the Cold War, dominating the security policy of leading UN members, and as a side effect marginalized the UN Security Council in the peace and security domain. The intense ideological antagonisms between the Atlantic Alliance and the Soviet Bloc generated a series of geopolitical standoffs that made it almost impossible for the Permanent Members of the Security Council to reach agreement about who was responsible and what to do whenever international conflicts turned violent.

 

The world has avoided such a catastrophic war up to this point by a combination of prudent statecraft and good fortune. There were several close calls that make it apparent that it is grotesquely reckless to normalize the present role of nuclear weapons in the arsenals of the nine current nuclear weapons states. When the path to nuclear disarmament was abandoned, the leading global states resorted to a Plan B, a nonproliferation regime tethered to the Nonproliferation Treaty of 1968 (NPT), negotiated under UN auspices. It was advertised as essentially a holding operation designed to give the nuclear weapons states ample time to negotiate, as they were obligated to do, a reliable supposedly disarming treaty regime. With the hindsight of almost five decades, it has become evident that the commitment to nuclear disarmament embedded in Article VI of the NPT was never implemented, and quite likely was not meant to be. Accordingly, 123 non-nuclear states have taken a new initiative to propose a denuclearizing Plan C within the confines of the UN, a step opposed by 36 members, with an additional 16 abstentions. As with the NPT, the UN is again providing the venue and encouragement for the negotiation of a draft treaty to prohibit the use of nuclear weapons (2017 BAN Treaty; Convention to Prohibit Nuclear Weapons), leading eventually to the elimination of all nuclear weapons. This initiative enjoys the support of most non-nuclear governments, but will not pose a serious challenge to nuclearism until public opinion is effectively mounted. As yet the BAN approach is not supported by any of the nuclear weapons states nor by those governments that base their security on holding a nuclear umbrella over their country.

 

Beyond this overriding concern with nuclear weapons, the Perugia Person should be using the UN to raise questions about globally unregulated arms sales and rampant militarism as practiced with post-modern weaponry and tactics, what might be regarded as a Plan D framework. In this vein, the UN and its civil society supporters could begin to explore the potentialities of a nonviolent geopolitics appropriate for a post-colonial, post-Cold War world order in which the global policy agenda finally takes seriously several biopolitical challenges with respect to which traditional instruments of ‘hard power’ are totally irrelevant, or worse. If we wish the UN to fulfill its potential it is essential that the negativity of right-wing populism be countered by affirmative visions generated by a rising progressive populism. Such progressive populists, rather far removed from traditional left politics, need to keep in mind the biblical admonition: “a people without a vision perishes.”

 

 

Serving the Human Interest

 

Overall, there has been a failure of the UN to live up to the expectations and hopes of its founders when it came to enhancing the quality of international peace and security. At the same time, the UN has vindicated its existence in numerous other unexpected ways that have made its role in human affairs now widely regarded as indispensable, but still far below what was and is possible, necessary, and desirable. The UN validated its existence early on by offering the governments of the world a crucial platform for articulating their grievances and expressing their differences. The UN became the primary arena for inter-governmental communication. The UN, especially by way of its family of specialized agencies that have evolved over the decades has done much excellent unheralded work at the margins of world politics. These activities have made vital daily, often unheralded, contributions to the global common good in such diverse areas as human rights, economic and social development, wellbeing of children, environmental protection, preservation of cultural heritage, promotion of health, assistance to refugees, and the development of international law, including international criminal law. The UN also has provided the best available venue for cooperative problem solving associated with complex issues of global scale that reflect the uneven circumstances of sovereign states. This flexible dynamic of practices within and outside the UN provides the fabric of everyday ‘multilateralism,’ that is, the reliance on collective mechanisms for policy and law formation by representatives of sovereign states that in countless ways contribute to problem solving and life enhancement in social settings ranging from the very local to the planetary.

 

 

A strong confirmation of the value of the UN arises from the fact that every government, regardless of ideology or relative wealth and power, has up to now regarded it as beneficial to become a member and remain in the UN. True, Indonesia briefly withdrew in 1965 to announce the formation of a parallel organization of ‘newly emerging forces,’ but within a year at its request was allowed to resume its membership without even passing again through the normal admission process. Within international society, the greatest sign of a recognition of diplomatic stature has become the election of a country to be a term member of the Security Council for a period of two years. This record of universal participation is truly extraordinary, especially when compared with the disappointing record of the League of Nations. There have been no sustained withdrawals from the Organization as a whole and when the former European colonies obtained political independence they shared a uniform ambition to join the UN as soon as possible and exert some influence on global policy, especially with respect to trade, investment, and development. These efforts by the enlarged Third World membership reached their peak in the late 1960s and 1970s. A vibrant Non-Aligned Movement pursued its policy goals within the UN, its energies concentrated on the effort to create a New International Economic Order that would level the playing field internationally for trade and investment. This radical reform effort was centered in General Assembly activism, and prompted a formidable backlash led by the most industrialized states. The backlash took many forms including the formation of the Trilateral Commission as a strong undertaking led by American economic elites determined to hold the line on behalf of capitalist values, procedures, practices, and above all, privileges. Membership in the UN nevertheless continues to be regarded as not only advantageous for the legitimacy it confers on states, but because it offers weaker and less experienced countries invaluable rights of participation in the full range of UN activities, including access to knowledge and technology required for successful transitions to modernity.

 

 

Global Populism as a Threat to the UN

 

Yet despite all of these achievements and contributions the UN is again under sharp attack these days, especially by its most powerful member, the United States. Donald Trump and several other autocratic leaders around the world uniformly belittle the UN role in world affairs because they regard the sovereign state to be the ultimate source of political authority and deeply resent external criticisms of their own domestic behavior. These leaders are currently promoting ultra-nationalist agendas that are chauvinistic, anti-immigrant, hostile to international law, and are especially hostile to all forms of individual accountability and state responsibility for human rights violations.

 

This is not only a problem associated with the emergence of right-wing populist leaders enjoying domestic support. It is also a feature of dynastic autocracy, most prominently associated with the kind of regional geopolitics being promoted by Saudi Arabia, seeking hegemony over the Arabian Gulf, crushing democratizing forces even if Islamic in outlook, and waging war against any political tendency perceived to be increasing Iranian influence anywhere in the region. With respect to the UN, Saudi Arabia in particular has been following the lead of the United States, hinting at withholding financial contributions, and even bluffing possible withdrawal from the Organization, if Saudi policies should become subject of critical UN scrutiny, no matter how flagrantly these policies violate international human rights standards and the norms of international humanitarian law. Israel should also be grouped with states that push back against any and all efforts to hold them accountable. This search for total impunity with respect to UN activity gains traction to the extent endorsed by leading states.

 

 

A characteristic illustration of the detrimental global effects of this recent wave of populist nationalism revolves around the U.S. withdrawal from the Paris Agreement on Climate Change. Although Paris fell significantly short of what the scientific consensus insists as necessary if global warming is to be properly limited, it still represented what a broad consensus of informed persons regarded as a crucial step in the right direction, and a serious show of commitment to the momentous task of transforming the carbon world economy into a sustainable and benign energy system in a timely manner. For this greatest of UN multilateralist achievements to be repudiated by the U.S. Government because Trump contends that it is a bad deal for America is dramatic evidence that the UN is under assault, and what may be worse, seems increasingly leaderless and ready to submit.

 

This disappointment and concern is greatly magnified by the intimations that Washington intends to withhold funds from the UN, as well as threatens to boycott and defund activities and organs that reach conclusions that do not correspond with U.S. foreign policy, especially when it comes to Israel. A prime target of this Trump demolition brigade is the work of the UN Human Rights Council in Geneva that is under intense attack because it is alleged to devote disproportionate attention to the wrongs and crimes of Israel. Such criticism besides sidestepping the question as to whether Israel is generally guilty as charged, also overlooks the fact that the British dumped the Palestine problem into the lap of the UN after World War II, making the fledgling Organization responsible for the transition from colonial subjugation to political independence. Such a direct responsibility was not imposed on the UN with respect to the decolonization any other national territory, and it has never been able to carry it out its assigned task in a manner consistent with the right of self-determination of the Palestinian people. From a truly objective point of view, the UN has not devoted too much attention to Israel, and the Palestinian struggle, but too little. It has not gotten the basic job done, resulting in prolonged, massive, and intense Palestinian suffering with no end in sight.

 

In other words at the very time that the peoples of the world need a stronger UN to uphold the challenges of the present era, the Organization is under an unprecedented attack from ‘the Geopolitical Person.’ It is now time for ‘the Perugia Person’ to step forth with a strong sense of urgency and entitlement. Affirming this ‘necessary utopianism’ will give us confidence that the challenges of the present can be surmounted through the mobilization of people acting in collaboration with governments dedicated to upholding global public interests in tandem with their own national interests. For these revolutionary energies to be released within the confines of the UN will only happen in response to a new surge of grassroots transnational activism. Such a surge could foreground the hopes, dreams, and demands of people around the world, and especially the youth who have the most at stake. It has been both my pleasure and my honor to have this opportunity to meet with you today.

 

 

‘Voluntary’ International Law and the Paris Agreement

16 Jan

 

Now that the celebrations by the diplomats have ended, it is time to take a hard look at what was and was not accomplished by the Paris Agreement. No one can deny that it was impressive to obtain agreement from all 195 participating countries, an outcome many doubted. A further achievement was the acceptance of the scientific consensus that global warming was an unprecedentedly severe global challenge that needed to be addressed with a sense of urgency and commitment by the world as a whole. Further, it was important that the agreement set forth in its text the ambitious goal of 1.5C degrees as the prudent ceiling for tolerable warming, while seeking to avoid an increase of 2C degrees, even while being aware that this latter would still result in serious additional harm but would be far less likely to be catastrophic than if emissions are allowed to increase without a global cap.

 

Worrisome Concerns

 Closer examination reveals several worrisome concerns. It is widely understood that international law is often ineffective because it lacks adequate means of enforcement when it prescribes behavior that obligates the parties. That is, international law is inherently weak because unable to enforce what is agreed to, but Paris carried this weakness further, by raising serious question as to whether anything at all had even been agreed. The Paris Agreement went to great lengths to avoid obligating the parties, making compliance with pledged reductions in carbon emissions an unmistakably voluntary undertaking. This is the core cause for doubt about what was agreed upon, raising the haunting question as to what emerged from Paris is even worth the paper upon which it is written. Only time will tell.

 

Prior to the Paris Agreement there were two models of an agreement process to address climate change. Both of these are now viewed as failures. There was the Kyoto Protocol of 1997 in which a mandatory treaty framework was negotiated resting on a sharply delineated division between developed countries that were required to make enumerated reductions in carbon emissions and the rest of the world that was under no obligation because their right to unrestricted development was affirmed. Then there was the Copenhagen Accord contrived on an ad hoc basis in 2009 mainly at the behest of the United States, a loose agreement reflecting American post-Kyoto concerns that the only viable international response to the threat of global warming was by way of obtaining a series of unverified voluntary pledges from national governments.

 

It is evident that in its central endeavor the Paris Agreement seeks to improve upon the Copenhagen model while rejecting the Kyoto model. In effect, the stability of an obligatory framework has been exchanged for the benefits of an inclusive arrangement that involves all countries, that is, weak on substance, strong on participation. What makes Paris seem a success whereas Copenhagen was written off as a dismal failure is partly atmospherics, or put more concretely, the skillful French management of the proceedings so as to create an impression of genuine collaboration and transparency. Also helpful was the American adoption of a low profile, operating behind the scenes, exerting the kinds of influence that did not create the sort of resentment that so badly marred the Copenhagen outcome.

 

This repudiation of the Kyoto approach is disturbing in some respects, but understandable, and even laudable, in others. Kyoto, although legally authoritative, only managed to gain the participation of states accounting for 12% of total emissions. This tradeoff between the two agreement models parallels the experience of the League of Nations that respected the sovereign equality of states, contrasting with the United Nations that privileges the five states that prevailed in World War II. The more idealistic League was a total failure because several crucial states, including the United States, refused to join, while the UN, although disappointing in relation to its war prevention record, has managed throughout its entire existence to achieve near universal participation. Even alienated and isolated states have valued the benefits of their UN membership and refrained over the decades from opting out of the UN. This experience supports the significant generalization that international lawmaking often does better when it is procedurally ambitious than when it tries to override and constrain sovereign discretion to act in areas perceived as matters of vital national interest by leading states. In the climate change context this choice can be further rationalized by an acknowledgement that the US Congress has the capacity to block any legally binding agreement, and without the United States as a participant the whole effort is wasted. It should be appreciated that the US Congress may be the only governmental site of influence in the world where a majority of its members reject the scientific consensus on climate change and gives aid and comfort to the deniers.

 

Can International Law Effective When Adherence is Voluntary?

 Although this voluntariness is problematic, it may not doom the Paris Agreement. Some non-obligatory international norms have produced important results, managing to obtain voluntary compliance, and even exceeding the original expectations of their supporters. Among many examples in international law, upholding the diplomatic immunity of ambassadors is a clear example of where the norm is unenforceable yet diplomats from small countries have almost always received the same protection over the centuries as those from the largest and most powerful countries. Why? It better serves the interests of the powerful to sustain a reliable framework of diplomatic interaction than to diminish the status of diplomats from weak states. From a different domain of international concern, we can point to rules of the road on the ocean designed to promote maritime safety. International law tends to be effective whenever compliance is more or less automatic. This can happen either because there is no significant incentive to violate what has been agreed upon or there are reciprocal gains achieved by maintaining reliable standards.

 

There are additional settings where international law is effective. One of the most prominent instances, although controversial, is the selective implementation of international norms prohibiting the acquisition of nuclear weapons. The United States acts as a geopolitical enforcer, and has been relatively successful in preventing those governments that it distrusts or opposes from acquiring the weaponry. The nonproliferation regime is defective from a rule of law perspective to the extent it is not applied equally to all non-nuclear states. Israel’s secret acquisition of nuclear weapons has been overlooked, while Iran’a nuclear program has received unprecedented scrutiny with a commitment to enforce nonproliferation by recourse to war if necessary. Beyond this the NPT regime became negotiable in 1968 only because the nuclear weapons states formally committed themselves to seek in good faith nuclear disarmament. Their failure to do so should have undermined the treaty from an international law point of view, but so far this refusal of compliance has been rhetorically noticed by non-nuclear states, but without producing a challenge to the agreement itself.

 

Paris Vulnerabilities

 

Part of the reason to be skeptical about the Paris Agreement is that the United States is unable to play the role of being a credible enforcer, and this means that there is no robust informal extra-legal pressure to comply. This weakness of the Paris arrangement is accentuated by several other factors:

            –the challenge of global warming is truly global in scope, yet the agreement reflects the aggregation of national interests. Its voluntary nature reflects the ethos of the lowest common denominator. International society can often cooperate to solve transnational problems, but it falters when the problem is truly global, especially as here where the various states have vastly different policy priorities, material circumstances, and divergent perceptions as to how fairly to apportion national responsibility for emission reductions and financial transfers;

            –many governments are constrained by mass poverty and low levels of development and seem likely to give priority to jobs and economic growth if facing economic pressures, making them also susceptible to manipulation by the private sector and international financial pressures;

            –the Paris Agreement seems particularly vulnerable to ‘the free rider problem,’ creating incentives for states to make minimum contributions while benefitting from the contributions of others; this is especially true in the climate change context since the problems are not correlated with international boundaries and the causal connections between emissions and harm are notoriously difficult to establish. This means that a state will benefit from systemic responses even if it fails to do its agreed part, while being only marginally protected by its own emission curbs;

            –often the success of a negotiated complex agreement is a result of diplomatic leadership, which has been a role that the United States Government has played in the period since 1945. The elaborate treaty establishing the public order of the oceans, one of the great success stories of international law, came about only after a decade of negotiations that were shaped by American leverage, persuading groups of states to accept concessions in exchange for benefits. For instance, the territorial sea off the coast of countries was expanded, and an exclusive economic zone was established, in exchange for preserving the freedom of the high seas for naval vessels. Because of the unevenness of national circumstances in relation to climate change the need for this kind of leadership would undoubtedly have led to a more robust agreement. This was politically impossible because the US Congress is opposed to any US national commitment with respect to climate change that results in any economic burden or commitment relating to energy policy, and the Executive Branch, despite its acceptance of the scientific consensus as to the severity of the climate change challenge, could not ignore this weakness of domestic support without suffering a humiliating rebuff as happened after Kyoto that seems more damaging to regulatory efforts than giving up an insistence on binding legal obligations;

            –without enforcement or even an obligation to comply, there are some circumstances where ‘naming and shaming’ create pressures can induce a fairly high level of compliance. The Paris Agreement by emphasizing the transparency of commitment, the monitoring of pledge fulfillment, and the reset opportunities given at five-year intervals would seem to create a situation where naming and shaming could partially compensate for the absence of formal compliance mechanisms. Unfortunately, governments of sovereign states are normally very reluctant to criticize each other in public space, absent hostile relations. The UN also refrains except in extreme cases from voicing criticism of the behavior of its members that names and shames.

 

The Waiting Game

 

Against this background, it becomes evident that the Paris Agreement should neither be celebrated nor rejected. It is a process that is only scheduled to go into effect in 2020, with an assessment period of five years, meaning that there will be no official audit as to the adequacy of the pledging approach until 2025. Even should the pledges on record be upheld, which seems unlikely, the trajectory relating to climate change points toward an increase in global warming by over 3C by the end of the century, far above the 1.5C recommended by experts, and exceeding the 2C degree ceiling that the Paris Agreement sets forth as a goal. This gap needs to be made visible to the peoples of the world, and steps taken to raise pledging expectations to a level of problem-solving credibility.

 

There are two perspectives that are each useful in evaluating the Paris Agreement. First, there is the problem-solving perspective that views the essential issue as adjusting energy policies to global warming prospects through cuts in carbon emissions and increased reliance on renewable forms of energy. The discussion above, as well as the inter-governmental text emerging from Paris, viewed climate change as a problem to be solved, with success or failure measured by reference to the rising of global mean average temperatures throughout the planet.

 

Secondly, there is the climate justice perspective that focuses on the fairness of the negotiated arrangement from the distribution of burdens and benefits, and by reference to those who are most vulnerable to global warming. Those most vulnerable are societies and regions that seem likely to become hotter than the average or have low-lying, heavily populated coastlines and lack the financial resources and technical knowhow to prevent and react in ways that minimize the damage. It is also the case that the 350 million indigenous peoples were unrepresented in Paris, and for various reasons are particularly exposed to the harmful effects of climate change. Issues related to pre-2020 ambition involving financing and control of emissions are also mentioned in the Preamble. Also Finally, Paris did not make any serious effort to represent, worry about, and take account of the rights of future generations.

 

Due to pressures mounted by the governments of vulnerable states and by the civil society groups, climate justice concerns were not totally ignored, being enumerated as a laundry list in the Preamble. These concerns focusing on human rights are not addressed in the operational provisions that are the heart of the Paris undertaking. Their relevance is, however, acknowledged in the Preamble to the Paris Agreement. Normally, the language of the Preamble of an international agreement is window-dressing, without substantive relevance. Here it is different. NGOs can invoke the language of the Preamble to hold governments accountable.

 

In the end, the fate of the planet will be decided by people, and not by governments. It is only by populist mechanisms of mobilization that the human and global interest will be articulated and protected. Governments can cooperate to promote common or overlapping shared interests, but where these national interests are so diverse and often contradictory, the aggregation of national interests is not capable of generating an agreement that adequately serves the human and global interest. This limitation of state-centric world order is magnified in relation to climate change because of the numerous disconnects between the locus of emissions and the locus of harm; only a globally constituted framing of the climate change challenge could produce an outcome that was satisfactory from both problem-solving and climate justice perspectives, and this will never be achieved by way of a Paris style meeting.

 

A responsible and equitable response to climate change after Paris depends on militant civil society activism that builds a transnational movement that both monitors the harms and the behavior of governments, but also focuses attention on the root causes of global warming: the capitalist drive for consumption, the militarist drive for dominance, and modernist drive toward

Technological solutions. Beyond this what is at stake is the recovery of the humane wisdom and spiritual consciousness of indigenous peoples that survival and happiness depended on respect for the natural surroundings. Of course, we should not romanticize the pre-modern or demonize the modern. What we need and should seek is a moral epistemology that reconnects knowledge with human values configured so as to achieve justice, sustainability, and the pleasures of ‘a good life’ (community, material needs, humane governance, spiritual alertness, opportunity and enlightenment). Such is the knowledge background needed to launch the revolution of our time.