This chapter reviews the role of Agenda 2030 in further developing water law. It concludes that Sustainable Development Goal (SDG) 6, Clean Water and Sanitation, is a step forward in recognizing the holistic nature of water but that it does not define water as a public good or common good/concern or heritage and also does not reflect on whether water limits require us to redefine growth. It goes beyond a sectoral approach to promote an urgent, coherent, systemic, and multi-level story rightly ignoring whether some of it is based on soft or hard (inter)national law. However, SDG 6 moves backward from limited sovereignty to emphasize full permanent sovereignty over natural resources, and while it emphasizes access to water and sanitation, it does not address the larger distributive issues on which, for example, the 1997 Convention on the Law of the Non-Navigational Uses of Transboundary Watercourses elaborates. Finally, the implementation of SDG 6 may undermine its lofty goals by engaging the profit-oriented private sector in service delivery to the poorest and by enabling the commodification and privatization of the water.

Introduction

Humans live off the bounty of the earth. In order to be able to sustainably enjoy these resources, humans need to organize their relationship with the earth. This organization is in terms of governing the use and abuse of the earth’s resources. The Global Environmental Outlook (UNEP, 2012) published by the United Nations Environment Programme (UNEP) argues that growing economies and populations within the context of complex globalization are leading to unprecedented pressures on the environment and ecosystem services. This calls for strong and effective governance!

There is nothing new about environmental governance and the study of environmental governance. For example, the history of water governance can be traced back some thousands of years (Dellapenna and Gupta, 2009). However, it would be fair to say that environmental governance came into its own in the twentieth century and that the study of environmental law, politics, policy, and economics has been on the agenda for at least the last 60 years. Numerous books and articles discuss environmental governance from the local to the global level. Such books include Carson’s (1962) Silent Spring, Falk’s (1971) This Endangered Planet, Ward and Dubos’ (1972) Only One Earth, Meadowset al.’s (1972) The Limits to Growth, and many others. These have paved the way to shaping global concerns on the environment.

Introduction

The fall of the Berlin Wall in 1989 and the start of an East–West reconciliation process led to renewed global optimism. People expected a ‘peace dividend’ – money that could be dedicated to environmental issues. The successful negotiations on the depletion of the ozone layer provided inspiration as these demonstrated that anthropogenic emissions can have global impacts and that international cooperation was possible to address such a problem. Furthermore, the necessity of linking environmental and developmental issues was on the agenda of the 1992 UN Conference on Environment and Development (UNCED) at Rio, 20 years after the 1972 UN Conference on the Human Environment in Stockholm. This optimism characterized the first half of the decade.

The first phase (see Chapter 3) had set the stage for the climate negotiations. The Intergovernmental Panel on Climate Change (IPCC)’s first scientific report was just being digested by policymakers. Political declarations had crystallized the key issues. The UN Intergovernmental Negotiating Committee (INC) was channelling energies towards negotiating a treaty on climate change and promoting its entry into force. The signs were propitious.

Climate change intertwined with life

Ecosystems are interconnected (Commoner, 1971). Hydrological and bio-physical spheres flow into each other. Production and consumption patterns are interlinked across continents. ‘National spaces, previously fragmented, are being integrated on a global scale’ (UNIDO, 2008: 5). The ecological, social and economic crises are interlocking crises (WCED, 1987: 4) with intergenerational scope in an increasingly globalizing world!

Contrast that with our governance patterns. Local governance cannot cope with global externalities. National governance is affected by competing ideologies, interests and fragmented systems. Democratic politics is locked into 4–5-year recurring elections; while political decisions on institutions, technologies and infrastructure lead to long-term, locked-in, processes (Barbier, 2011: 238). Current investments are locking the world into an insecure, inefficient and high-carbon energy system (IEA, 2011). Lock-in refers to the difficulties in reversing decisions because of the high costs involved, and because these have a high inertia. Transboundary governance is affected by the competition between short-term national versus regional interests. Global governance is fractured along national interests, and is fragmented, pluralist, incoherent and often counter-productive. ‘Glocal’ (global to local) governance is affected by past politics. Path dependency affects the future.

Introduction

The previous chapter presented the three big political dimensions of the climate change problem – the politics of science, the politics of governance and the politics of cooperation between rich and poor. This chapter now looks at the options for dealing with the climate change problem. It first argues that climate change is a development problem and that mitigation, adaptation and geo-engineering have impacts on development (see 2.2). It then looks at the measures that can be taken at different points of the climate change chain (see 2.3). For example, it examines measures to deal with the systemic nature of the problem (see 2.4), the underlying driving forces (see 2.5), the sources of climate change (see 2.6), GHG concentrations and global warming (see 2.7), adaptation (see 2.8) and residual impacts (see 2.9).

Climate change and development

Climate change is intrinsically linked to development. In order to address climate change, one can adopt mitigation measures to reduce GHG emissions and enhance sinks (e.g. afforest) that absorb these gases, adaptation measures that deal with the impacts of climate change, or adopt geo-engineering measures (large-scale interventions in the climate system) (see 2.7). Climate change mitigation and development have five key links. First, most societies and peoples wish to develop and the economic growth rate and employment are key to most election promises. Enhanced production, distribution and consumption brings with it increased GHG emissions. Second, emancipating the poor and providing them with access to basic resources, as called for in the Millennium Development Goals (UNGA, 2000a), will enable their meaningful participation in social production and consumption processes. This can potentially lead to enhanced GHG emissions, although it improves the resilience of the poor to climate impacts. Acceptance of the right of the poor to emancipate themselves implies acceptance of the need to differentiate between survival and luxury emissions (Agarwal and Narain, 1991; Opschoor, 2009). Third, development itself can lead to the conditions that can allow for mitigation: the rate of growth of these emissions can be influenced by the sustained application of appropriate policy choices, the use of win-win measures and the interconnectedness with other related policy decisions (IPCC-III, 2007).

Introduction

Unlike many other issues, climate change, a very specific, scientifically complex problem, entered the international agenda through an abstract theoretical awareness of the problem rather than an actual experience of its consequences. In the 1980s, it moved rapidly from the scientific arena to the political arena, picking up concern from non-state actors on the way. It then developed a twin track – a track in which the scientific process of assessing information was institutionalized in the Intergovernmental Panel on Climate Change (IPCC), and a negotiating track through the establishment of the Intergovernmental Negotiating Committee (INC) under the auspices of the UN General Assembly to initiate negotiations on a climate treaty. This chapter explains the chronology of events, focuses on how the problem was defined, the role of the key actors, the key outputs and major trends in this period ending in 1990.

The chronology of events

The first driving factor for global governance in the climate domain was the role of individual scientists from the 19th century onwards in incrementally identifying various aspects of the problem (see Table 3.1). This culminated in the scientific consensus that climate change is a serious threat to humanity at the first World Climate Conference organized by the World Meteorological Organization (WMO) in 1979. The Conference Declaration stated:

Introduction

In the pre-negotiation days (Phase 1), early political declarations and articles discussed the issue of ‘responsibility’ (see Chapter 2). At the time, the concept combined ideas of liability for harm caused to others calling for compensation, with ideas of taking a responsible approach. In Phase 2 of the negotiations and leading up to the adoption of the United Nations Framework Convention on Climate Change (UNFCCC), the use of ‘neutral’ language became popular. Neutral language is used in the IPCC-III (1990: xxvi) report. Curiously, the report also raised two questions: ‘Should mankind’s interest in a viable environment be characterized as a fundamental right?’ and ‘Is there an entitlement not to be subjected, directly or indirectly, to the adverse effects of climate change?’ (IPCC-III, 1990: lviii). The text of the Climate Convention also embodied an implicit acceptance that climate change was a global commons problem – which implied a ‘neutral factual statement’ with no intent to point fingers at individual countries (Bodansky, 1993: 498). The convention adopted the concept of responsibility more in terms of the ‘leadership paradigm’ (see Chapter 3) and the common but differentiated responsibilities and respective capabilities (CBDR) principle. Responsibility in terms of liability had morphed into responsibility in terms of leadership (Gupta, 1998).

In Phase 3, the perception of the high costs of reducing emissions led to greater emphasis being paid to cost effectiveness as a critical guiding principle and market instruments to promote the implementation of the convention. Leadership was beginning to flag. By Phases 4 and 5, legal options had increasingly become an important issue for discussion and the number of court cases on climate change-related issues began to rise. The issue of human rights also became gradually important (see 9.3). In the future, as the impacts of climate change become increasingly more evident, I think it will be inevitable that legal avenues will be chosen by countries and social actors as a way to promote climate justice. Section 9.2 presents the legal options discussed in the literature and in existing court cases before moving to a more theoretical exploration of the options. The following section discusses human rights issues (see 9.3).