Go with the flows: What good is transnational law to the climate?
James Ashwell
Transnational climate law is a fast-developing field of study with important implications for climate law scholars. This article delves into two chapters from the Oxford Handbook of Transnational Law to understand the role that transnational law can play in helping analyze climate law.
Does transnational law warrant the attention of climate law scholars? Two chapters by Natasha Affolder and Phillip Paiement in the recently published Oxford Handbook on Transnational Law answer in the affirmative. Affolder’s chapter is conceptual, and argues that transnational law opens up new methodological possibilities. Paiement’s chapter is more concrete in comparison, and provides an example of how the theoretical promise of the field can be put into practice. What promise does transnational climate law hold exactly, and what are the risks inherent in such inquiry?
In “Transnational Climate Law,” Affolder argues that transnational law can be viewed as a “visual field” that broadens our view of climate law by allowing scholars to centre various concepts and challenge orthodoxies that remain unquestioned in other fields of law. In particular, the migration and interaction of concepts, arguments, processes, social movements and policy instruments across national borders are central objects of examination in transnational law.
In his chapter, Paiement outlines several such interactions and migrations, beginning with the transnational ideological underpinnings of many climate law efforts. Paiement identifies two "opposing globalizations" and describes how they each influence state and non-state actors. The first globalization is market-oriented, institutionalist, and driven by a belief in the perfectibility of the existing globalized order. The second is fundamentally radical, counterhegemonic, and driven by a belief in the insufficiency of existing institutions to meaningfully achieve just outcomes for all. Paiement argues that these movements, typically but not always in tension, permeate and shape the policies, discourses and institutions prevalent in transnational legal analyses.
Paiement then outlines concrete practices of transnational climate law which have been shaped by the migration of ideas across borders. Constitutional changes may seem fundamentally domestic in nature, but they can be significantly influenced by developments abroad and in global governance institutions. As Paiement points out, the constitutionalization of food sovereignty originated in Venezuela and has spread across Latin America to Bolivia and Ecuador. Extra-territorial environmental legislation has also gained momentum across national borders, as US legislation against illegally harvested wildlife implemented in 2008 was replicated in Australia and the EU in 2012 and 2013 respectively. Lastly, transnational litigation efforts have proliferated widely, as companies like Shell, African Barrick Gold, Nevsun Resources and others have faced litigation efforts in their home countries for harmful actions taken abroad, from environmental pollution to deadly factory fires and forced labour. Litigation efforts are arguably among the most favoured tools of the counterhegemonic globalization identified by Paiement.
In centering the flow of ideas and practices across national borders, Affolder argues that transnational law, to its benefit, promises to decenter states. Non-state actors are instead brought into the foreground, allowing transnational legal scholars to reveal their contributions with greater clarity. Paiement again demonstrates how this promise can be realized in practice. He describes several non-state nexuses at which transnational law is generated and enforced.
Firstly, Paiement describes the "business and human rights" movement, in which corporations work with multilateral institutions such as the ILO to develop voluntary standards for labour and environmental protections. Innovative multistakeholder bodies such as Fairtrade International and Rainforest Alliance make up the second nexus of transnational law. These bodies seek to set up normative requirements and voluntary certifications to foster more sustainable business practices. Thirdly, codes of conduct within multinational corporations can shape the behaviours of those corporations and their supply chains, although the effectiveness of such codes is heavily contested. The market-oriented forces of globalization that Paiement identifies tend to exert a large influence in these nexuses, although counterhegemonic forces can also leverage them for their aims. In each of these cases, transnational law brings into the spotlight institutions and laws formed and enforced outside of traditional state and multilateral state bodies.
While Affolder and Paiement both demonstrate the potential benefits of transnational climate law as a field of inquiry, they are not blind to its challenges and current shortcomings. Affolder points out that a hyperfixation on “climate law” as a distinct field risks missing the space around it in which other legal processes not related to "climate law" operate and inadvertently affect the field’s objectives. While transnational climate law has the ability to destabilize fixed and distinct categories of law that are taken for granted by incorporating alternative knowledge, it is challenging to even identify the space in which these adverse effects occur, thus allowing polluting actors to worsen climate change.
Secondly, Affolder notes that legal scholarship has the tendency to mischaracterize legal practice as an ahistorical and asocial process; transnational lawyers will have to work hard to conceptualize and present the law as a phenomenon that is situated within a socio-political context so that meaningful and effective progress can occur. Paiement’s assessment of the many practical manifestations of transnational climate law show that while the challenge may be serious, it is not insurmountable.
Lastly, Affolder argues that, in centering the flow of abstract ideas and processes, transnational climate law risks decentering the lived realities of people most directly affected by climate change and obscuring the complexity of human actors behind the numbers and figures of science and economics. This criticism is directly applicable to Paiement’s piece, as the author primarily discusses the ideologies and practices of transnational climate law without examining the contributions from those most affected by the harm. Nonetheless, Paiement’s piece overall demonstrates that the theoretical promise of transnational climate law as outlined by Affolder can be successfully realized in practice as long as scholars remain attentive to the risks and challenges currently facing the legal framework.
Sources:
Affolder, Natasha, “Transnational Climate Law” in Peer Zumbansen, ed, Oxford Handbook of Transnational Law (New York: Oxford University Press, 2021) at 247.
Paiement, Phillip, “Transnational Sustainability Governance and the Law” in Peer Zumbansen, ed, Oxford Handbook of Transnational Law (New York: Oxford University Press, 2021) at 821.
“James Ashwell holds a bachelor's degree in Economics from the University of Ottawa and is currently a first-year student at McGill University's Faculty of Law. He has written previously about green technologies, economic productivity, wage growth, and Indigenous economic inclusion. The author would like to thank Mariana Furneri for her numerous edits and generous guidance in writing this blog post.”