Global Climate Governance between Hard and Soft Law: Can the Paris Agreement’s “Crème Brûlée” Approach Enhance Ecosystemic Reflexivity?

J. Pickering, Jeffrey S. McGee, S.I.S.E. Karlsson-Vinkhuyzen, J. Wenta

Research output: Contribution to conferenceAbstract

Abstract

Ecosystemic reflexivity—the capacity to monitor shifts in social-ecological systems and to rethink and reconfigure core values and practices in response—is a crucial quality for institutions in the Anthropocene. Accounts of reflexive governance have often privileged institutional features of flexibility and openness that may conflict with the stability and predictability typically associated with legal norms. However, the spectrum of “legalization” in global governance allows more nuanced differentiation between “harder” and “softer” legal norms. Accordingly, this article addresses the question: how might the hardness or softness of legal norms enhance the ecosystemic reflexivity of the global climate regime? We assess the evolving legal form of collective goals and national contributions on mitigation, as well as mechanisms for review and compliance. We find that the regime’s reflexive capacity has increased (albeit only moderately and slowly) over the past two decades, but that this trend does not correspond with a consistent hardening or softening of legal form. This suggests that the capacity of harder or softer norms to enhance reflexivity may vary over time depending on contextual factors that affect prospects for cooperation, such as levels of uncertainty and divergence of interests. The Paris Agreement adopts an innovative approach to mitigation combining overarching harder norms for periodic goal-setting, transparency and review with a substantial layer of softer norms on national emission reductions. This mix of harder and softer norms (which we term a “crème brûlée”) has potential to enhance ecosystemic reflexivity by encouraging flexibility to respond to changing circumstances within a predictable long-term framework. But the framework’s reliance on soft, transparency-based means of encouraging compliance provides limited assurance that countries will ramp up their efforts quickly enough to avoid dangerous climate change. It will be important for civil society actors to find other ways beyond the international regime of holding governments to account for making and fulfilling ambitious commitments.
Original languageEnglish
Publication statusPublished - 2017
EventAnnual Conference of the International Studies Association - Baltimore, United States
Duration: 23 Feb 201723 Feb 2017

Conference

ConferenceAnnual Conference of the International Studies Association
CountryUnited States
CityBaltimore
Period23/02/1723/02/17

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