Panel 1 - Law in Times of Climate Change: Who Governs?

This program contains 30 minutes of EDI Professionalism Content --- This session will explore questions of the rule of law and governance in times of crisis, including the challenges that climate change presents to some of the very conceptual foundations of law. How might the climate crisis require fundamental transformations in the roles of local, Indigenous, national, inter and transnational governance? Are law and democratic participation “sustainable?” The part addresses both the normative foundations of international and domestic law and the institutions that are needed to undergird effective policy. CHAIR: Arthur Ripstein Jutta Brunnée, “Between Stability and Change: International Climate Law in Precarious Times” Our window for averting dangerous climate change is rapidly closing. What role can international law play in ensuring ambitious collective action in the context of a complex challenge like climate change? I will suggest that international law’s most important role is to provide a normative framework with which national policy debates can engage. Perhaps counter-intuitively, a combination of non-binding international principles of action and non-binding national commitments that can be swiftly altered by individual states are more likely to result in a stable climate regime than binding obligations that states must implement. This applies all the more in our current times of backlash against perceived international over-reach. John Borrows, “Indigenous Law and Canadian Climate Governance” Indigenous peoples have experienced climate change through deep time, human time, colonial time, and in our lifetimes. In all these experiences Indigenous peoples have made observations about how to deal with climate change and how to challenge its adverse effects. They do this through Indigenous measures, standards, principles, criteria, precedent, tradition, signposts, benchmarks, tenets, procedures and conventions and customs. This is to say, Indigenous peoples have laws to address climate governance. Indigenous peoples’ laws, flowing from their experiences with climate change, should be an important factor in climate governance. These laws contain, intellectual and cultural resources to help us make decisions, regulate our affairs, and resolve disputes related to climate justice in the present and future. In dealing with climate change, we should recognize and revitalize Indigenous law amongst the other important actions we pursue. Edward Iacobucci & Michael Trebilcock, “Confronting the Institutional Challenges at the Heart of Climate Change Policy” Formulating and implementing effective climate change policies has been described as a “super wicked problem.” Aside from questions of optimal policy, however, there is a prior question that is critical but has received much less attention: how should we design institutions to address climate change? A host of challenges confront institutional design in this context, including scientific and technical uncertainty, cognitive biases, collective action and coordination problems, and polycentric goals. Moreover, these challenges interact in ways that make institutional design even more difficult. For example, scientific uncertainty and cognitive biases do not interact constructively, with those prone to over-optimism willing to view any uncertainty over the precise impact of climate change science as providing support for inaction, while those prone to pessimism will view such uncertainties as justifying apocalyptic action. This article reviews these challenges, and their interaction, and considers practical responses to them in the context of Canadian institutional design. Clearly no institution can possibly address all concerns simultaneously, but we make suggestions for an institutional framework that balances the competing considerations.