A Brief Analysis of Climate Change from the Nature of Environmental Risk

               Zhang Yanxuedan,

LLM, LawSchool of RenminUniversity of China

[Abstract]

The issue related to climate change contains some characteristics of environmental risk. For risk influence the decision-making by ways of risk assessment and management, it indirectly influenced the attitude and measures adopted in addressing global or local problems concerning climate change. This essay gave a brief analysis in how environmental risk and its uncertainty block the consensus to be formed on climate change, and point out the necessity to explore ways to develop risk countermeasures.

[Keywords]Environmental risk; Climate change; scientific uncertainty; Legal context

The issue related to climate change contains some characteristics of environmental risk. Although there are plenty of essays on climate change and many of which are truly inspiring, rarely does article address it from the nature of risk. Author tried to explore it in this essay.

I、The nature of risk

     Global environmental problems are plagued with uncertainty. Some of this “uncertainty” which has the possibility to damage the ecological environment is labeled as “environmental risk”. It contains not only new technologies and inventions which may bring in environmental risk, but also some new scientific findings, which indicate the damages used to be ignored[1].

For most of risk are urgent, it is impossible to wait for the further scientific discovery or technological development. Thus, they lead to disagreements at times, since risk is not purely scientific or objective, but somehow contains value judgment. Professor Enger and Smith have figured out how environmental risk influences the decision-making process:

Probability of risk

Consequences of risk    -  Decision-making process and prioritization   Decision[2]

Economics of risk

It is easy to find that there are two distinctive elements may affect the decision: the economic consideration and the degree of risk to be accepted-physically and psychologically in the area affected.

II、              Climate Change in Copenhagen

The negotiation on Copenhagen Conference left many important topics in vain. Except for the rough consent of developing low carbon economy and supply of limited funds to some developing countries, there is little achievement. The failure of its holding has been imputed to various reasons:

(ⅰ) the divergence in series issues like funds, technological supports and transfer and the targets of emission reduction etc[3].

(ⅱ) the lack of sincerity between different camps- “the basic countries“ of China, Brazil, India and South Africa put forward Beijing Text; some European countries threw out the Denmark Text at the beginning of the meeting; and America has its own concerns. Countries actually negotiated on different panels, which set obstacles to get consensus.

(ⅲ) the disputes of “burden” and “common effort”. Common and differentiated principle is not a principle based on marketing, but historical responsibility. It is difficult to count the responsibility on one hand, the priority of bearing historical responsibility or dealing with climate change commonly at present is arguable.

In addition to the three points mentioned above, there are still more reasons, such as Prof. Chang Jiwen has pointed that the problems are deeply rooted in national environmental security, food security, economic structure etc.

III、           Scientific uncertainty of climate change

Through the comparison of several international conventions, author found that out of political, economic and cultural reasons, the characteristics of environmental risk is itself a reason indulge the disagreements. Under the seemed common view that the world is becoming warmer and warmer, suspicion never stop. The winter of 2009 was in fact colder than being predicted, thus hard to be admitted as a reflection of global warming. Moreover, the exposure of e-mails in Climatic Research Unit of University of East Anglia showed that there is in fact some uncertainty in climate change[4].

It is not surprising. Since the research of environmental risk started from 1960s, its reliability has never been fully confirmed. The U.S.A. has the most advanced system to deal with environmental risk, and published series of reports[5]. But even they could not answer to what degree the scientific speculation is reliable.

To the largest extent, climate change is a scientific speculation rather than a scientific finding. This is different from some issues. For example, toxic substances could harm people’s health, which is acknowledged by most of the countries and academia, so it is easier to reach agreement in the prohibition and restriction of trans-boundary disposal.

IV、         Climate change under legal context

Other than the scientific uncertainty, the nature of risk causes the difficulty at the level of law. The shift of traditional “judgment on facts” to “prevention and precaution centered rules” is one of the characteristics of law in 20^th Century. Since the policies and law are required to be as reasonable and foreseeable as possible, it is contradicted to the uncertainty of risk.

However, countries are finding the solutions. Two ways in general is explored to address uncertainty in law: “developing better information” or “taking a precautionary principle”.

The former one is practiced by the build-up of the system of environment impact assessment. Firstly in U.S. National Environmental Policy Act, then the model has been spread all over the world. And through passing in most of conventions, quoting as instruments on the courts and adopting by the national governments, it is now considered a consensus.

However, the latter one is not implemented as smooth as the former. While it is commonly recognized as an international principle in plenty of documents, treaties, conventions and declarations[6], with its concept and consisting elements having few disagreements/[7], its legal status is not as clear as other principles in international environmental law. The reasons are complicated: the difficulty to make risk assessment, which is considered the criterion to trigger the application of precaution principle; the doubt of its scientificness and the side-effect in development of technology; the doubt of its efficiency in avoiding risk for it may impose higher risk at the same time; and its abuse which may cause protectionism in trade.

As it is believed that the consensus is indispensible in addressing climate change, the author thought the momentum should come from the construction of law step by step as well as reaching an international convention in one time. It is well-known that there are three ways in general to get consensus: promulgating binding provisions in multilateral or bilateral conventions; adopting the principle as customary international law; making domestic law to embody the principle. The first one is hard to achieve at present for the discrepancies between North countries and South countries and the divergences within the North and South, which can be easily observed in series of climate change summits; the second and third ones will be discussed below.

     The Statute of the International Court of Justice stipulated at article 38 1(b) that the international custom should be “as evidence of a general practice accepted as law”. It must contain at least two elements: a) substantial evidence. Each country exercises many times with the same conclusions (act or not act) under the similar circumstances; b) psychological recognition: each country shows its conformity with the rule explicitly or implicitly. Many principles on climate change like precautionary principle satisfy the first condition, but because few cases really quote it in judicial decision[8], it is hard to reach the criterion of the second condition.

     And regarding its internalization into domestic law, take precautionary principle as a example. Germany[9] considers precautionary methods as its basic principle in various pollution and resources laws. While some common law countries have implemented this principle in judicial decisions. For example, Canada Ontario Ltd. v. Metropolitan Toronto and Region Conservation Authority, [1996] OJ 1392 (Ontario Divisional Court); India Vellore Citizens Welfare Forum v. Union of India & ORS, SCALE (PIL) 1981-97 (Kuldip Singh, J.) 703 (India Supreme Court); and Pakistani Shehla Zia v. WAPDA, PLD 1994 Supreme Court 693 (Pakistani Supreme Court), etc. But whether it has been considered a precedent and a general principle in judicial decisions is questionable.

V、           Conclusion

     Just as indicated by Prof. Chang, there is more problems hide behind the disagreement of Copenhagen Accord. The nature of risk will be one. While the climate change is an extremely complex problem, on one side, it is essentially a problem concerning the contradiction between the certainty of the law and the uncertainty of the environmental problem. Indeed, researches are required in many ways.