656 Review of Books

Lavanya Rajamani, ‘Innovation and Experimentation in the International Climate

Change Regime’ (Brill 2020), 320 pages, isbn 978-90-04-44439-3

Innovation and experimentation are desperately needed in law to address

multiple global challenges from catastrophic ecosystem breakdown, global
pandemics, and immoral levels of inequity. It is increasingly recognised that
international environmental laws are failing to prevent the Earth from rapidly
heading towards catastrophic ecosystem degradation.1 State centric interna-
tional environmental framework agreements lauded in the early 1990s for
addressing atmospheric and terrestrial transboundary problems like climate
change, desertification and biodiversity loss now are seen as unwieldy, frag-
mented and not fit for purpose.2 Some scholars argue that a completely new
legal system is needed to prevent humanity, especially the privileged in the
Global North and South, from transgressing all planetary boundaries.3
Yet, Lavanja Rajamani, an international legal scholar, assumes a more prag-
matic approach. In ‘Innovation and Experimentation in the International
Climate Change Regime’, a contribution to the prestigious Collected Courses
of the Hague Academy of International Law, Rajamani argues that the kind of
transformative systemic changes needed to avoid catastrophic climate change
and related ecosystem breakdowns are already occurring from existing inter-
national legal structures. In this monograph, Rajamani traces how, through an
often torturous process, international climate change law has opened up oppor-
tunities for transformation in law far beyond its remit. The key component in
the international climate change law architecture is the 1992 UN Framework
Convention on Climate Change’s (unfccc) Paris Agreement (adopted in
2015) that ‘acts as the fulcrum rather than the sole driver of global coopera-
tion on climate change [which] relies on a productive interplay between the
facilitative international regimes and strong national policies and actions;
between binding procedural obligations and normative expectations, good
faith, and due diligence; and between State and non-and sub-State actors and
processes’ (p. 189).

1 Alice Bleby, Cameron Holley and Ben Milligan, ‘Exploring the planetary boundaries and
environmental law: historical development, interactions and synergies’ in Duncan French
and Louis J Kotzé (eds), Research Handbook on Law, Governance and Planetary Boundaries
(Edward Elgar Publishing 2021).
2 Harro Van Asselt, ‘Managing the Fragmentation of International Environmental Law: Forests
at the Intersection of the Climate and Biodiversity Regimes’ (2011) 44/4 New York University
Journal of International Law and Politics, 1205. 1205–78.
3 Louis J. Kotzé, ‘Earth System Law for the Anthropocene: Rethinking Environmental Law
alongside the Earth System Metaphor’ (2020) 11/1–2 Transnational Legal Theory, 75, 75–104.

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Review of Books 657

In this book, Rajamani argues that evolution in international climate

change law within the UN has occurred at a time of increasing ‘stagnation in
law-making […] as new powers and political alliances – powers such as China,
India, Brazil, South Africa […] and other political alliances such as G20 – have
become consequential […] challenging traditional consensus led international
law-making’ (p.187–188). Through the use of innovation and experimentation
in negotiation, diplomacy, policy and measures, the international climate
change regime in 2020 is a much more sophisticated institutional ecosystem
that can foster and support multilevel transboundary initiatives to address
the climate emergency. For Rajamani, it is the international climate change
regime’s ‘complexities, limitations, curiosities and even absurdities [that chal-
lenges] the conceptual boundaries of international law and enriched the core
of treaty law and practice [which] merits serious scholarly attention’ (p. 24).
Rajamani claims the international climate change law adapted to trends and
tendencies in international law [and as such] rather than buckling under their
weight’ it ended up being ‘realistic’ (p. 26).
Lavanya Rajamani is an acclaimed climate change lawyer and practitio-
ner. She is widely celebrated for her multiple articles, books, book chapters
and papers on developments within the international climate change regime
negotiations, especially on the interpretation of the principle of Common but
Differentiated Responsibilities and Respective Capabilities (cbdrc). The bib-
liographical note at the beginning of ‘Innovation and Experimentation in the
International Climate Change Regime’, listing Rajamani’s principal publica-
tions, is testimony to the extent of her scholarly contribution to the field of
international climate change law. The book is shaped by this previous research
and draws on a Special Course given by Rajamani on the ‘International Climate
Change Regime’ at The Hague Academy in July 2018.
The content is structured around the four key issues Rajamani identifies as
the core competing demands of international climate change negotiations –
‘autonomy, legal bindingness, prescriptiveness and differentiation’ (p. 30). It
is Rajamani’s opinion that in seeking to find a balance between these four
core competing demands where the climate change regime’s experimentation
and innovation in international law lies. Rajamani explores the innova-
tions and experimentation in the book sequentially through laying out the
issues, instruments, institutions, actors (chapter I); outlining the process and
procedures – tools, techniques and tricks (chapter II); determining the legal
instruments and obligations – nature, type, spread, functions and interplay
(chapter III); clarifying shifts in differentiation (chapter IV) and concluding
with questioning the capacity to deliver on the promise of the international cli-
mate change regime (chapter V). In each chapter, aspects of the core demands

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658 Review of Books

are interrogated and analysed to see how a workable balance has been agreed
upon amongst Parties to the international climate change regime.
The book is short (250 pages), and its scope is deliberately limited. The inter-
national climate change regime extends far beyond the unfccc to include not
only other multilateral environmental agreements such as the Convention on
Biological Diversity (cbd, 1992) but also other fields of law such as trade and
human rights. However, Rajamani acknowledges that the international cli-
mate change regime is set within a wider “complex” of regulatory instruments
(including many multilateral environmental agreements, human rights instru-
ments, trade agreements and institutional regimes such as International Civil
Aviation Organisation (icao) and the International Maritime Organisation
(imo). Yet, she specifically chooses to ‘train [the book’s] lens squarely on
the international climate change regime, the principal purpose of which
is to address climate change’, the UN climate change regime constituted by
the unfccc, the Kyoto Protocol, the Paris Agreement and Conference of
the Parties (COP) decisions (p. 29). Rajamani’s choice is a deliberate one. By
focusing on the UN climate change regime, she is able to undertake a forensic
assessment of the evolutionary developments, especially since the adoption of
the Kyoto Protocol in 1997 and make her case that the regime challenges the
conceptual boundaries of international law.
In chapter i, Rajamani lays out the objective, principles, regulation, institu-
tions and actors in a concise, focused manner. Firstly, Rajamani sets out the
challenges that the ‘super wicked problem’, namely climate change, poses
to state-based international law by drawing on the latest Intergovernmental
Panel on Climate Change reports on climate science. After which, a perfunc-
tory legalistic survey of the objective, principles and institutions is provided.
These are foundations that are returned to in the following chapters. The chap-
ter concludes by detailing the different actors involved in the climate change
negotiation processes. The section is largely focused on the different negotiat-
ing blocs such as the G77 and China, the Least Developed Countries (LDCs),
and the Alliance of Small Island States (aosis), clearly articulated alongside
equity and justice issues. The style of the writing is largely legalistic and neu-
tral. However, when describing the alba group (the Bolivarian Alliance for the
Peoples of Our Americas) which comprises of ten Latin American countries
and three observer states, Rajamani claims the group’s members ‘believe in a
Trotskyite version of communism, and embrace revolution’ (p. 38). Yet ALBA’s
opposition to ‘free market capitalism’ has been a source for extensive civil soci-
ety, climate justice and alternative climate political ecology scholarship and

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Review of Books 659

activism. The somewhat out of turn comment about alba in the chapter is as
surprising as is the lack of attention paid to non-state actors, including interna-
tional organisations, civil society and business associations, on the process and
evolution of the climate change regime. Indeed in the book there are only two
references to the significance of non-state actors. Firstly, Rajamani attributes
evolution in the contextual framing in the preambular language including a
reference to human rights in the Paris Agreement, as being the ‘fruit of a con-
certed decade-long campaign by some Parties, human rights advocacy groups,
and international bodies to integrate human rights considerations into the
climate change regime’ (p. 32). Secondly in the final chapter, Rajamani high-
lights the influence of non-state actors in shaping climate change law, picking
up the opportunities that the international climate change regime provides
to craft novel legal solutions to global environmental challenges, especially
through strategic litigation (p. 220). Overall, surprisingly the dynamic inter-
play between state negotiators, diplomats and other non-state actors and the
influence on international climate change negotiations receive very limited
attention in this book.
In chapter ii, Rajamani turns her focus on the processes and procedures
for agenda setting, negotiation management (the various fora and texts) and
decision making employed within the ‘dysfunctional and toxic politics’ of the
international climate change fora that have ‘led Parties to experiment, innovate
and improvise to reach agreement’ (p. 46). The chapter is a detailed documen-
tation of the various astute steps taken by those with procedural powers within
the negotiation processes to maintain momentum and avoid the derailment
by ‘proxy wars’ (p. 46). Rajamani highlights how some Parties have used the
agenda setting process to introduce controversial issues as a delaying tactic
citing India’s inclusion in the Durban conference agenda of ‘multilateral trade
measures’, ‘intellectual property rights’ and ‘equitable access to sustainable
development’ (p. 48). She highlights how from setting a negotiating mandate
to the establishment of (pre) negotiating bodies and processes spaces are cre-
ated within which power plays out in multiple forms. Following on Rajamani
highlights more recent initiatives by negotiators to maintain momentum
when difficulties arise in the negotiations process. These initiatives include
‘huddles’, which were a preferred replacement for the “Friends of the Chair”, a
strategy that fell into disrepute after the 2009 Copenhagen COP. A ‘huddle’ is
a ‘spontaneous(ly) engineered public group that forms to resolve outstanding
issues. One formed at the end of Durban in 2011 and lasted over 30 hours to
resolve outstanding issues on the outcomes’s legal form. Although ‘seemingly

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660 Review of Books

spontaneous, democratic and transparent Rajamani is not a supporter of hud-

dles. She argues they can exclude according to privilege and power but even
down to physical strength and height. The implications these undocumented
processes have on the negotiations process, which have limited participation,
are not critically analysed by Rajamani.
Chapter iii covers a core issue in the UN climate change regime: balanc-
ing legal bindingness, prescriptiveness, and normative commitments (soft
law). Rajamani argues that the core shift has occurred from an essentially
legally binding top-down Kyoto Protocol to a self-determined voluntarist
nationally determined contributions under the Paris Agreement. The legal
nature of COP outcomes is always a source of great conflict within negotia-
tions. Rajamani documents the processes and procedures often employed to
settle the language used in negotiation Mandates for an agreed legal outcome.
Usually parties agree to adopt a spectrum of legality between hard law and
soft law (p. 104). Rajamani carefully demonstrates how a provision’s legal
character depends on its location within a text, who it applies to, the underly-
ing normative framing, and the language used, whether it is ‘shall’ or ’should’
for example (p. 111). Procedural obligations such as reporting requirements
under the transparency framework are recognised as critical for extending the
legally binding reach of the Paris Agreement given the voluntarist nature of
the parties Nationally Determined Contributions. There is a dynamic interplay
between the harder legally bindingness and the softer normative language,
which creates a foundation for due diligence. The due-diligence dimension
and its importance for the reach of the international climate change law are
taken up in chapter V. Before that, Rajamani turns to address the importance
of differentiation as a principle and how it is embedded within the UN inter-
national climate change regime.
In chapter iv, Rajamani focuses on differentiation. This is the most stand-
alone chapter in the book. This is largely due to Rajamani being a leading
expert on differentiation in international climate change law who has regularly
written about the nuanced shifts occurring in decisions adopted at the annual
COPs. The chapter begins with an eleven-page analysis of the principle of com-
mon but differentiated responsibilities and respective capabilities in light of
different national circumstances (CBDRNC). Rajamani identifies a move away
from ‘prescriptive differentiation based on the categories of Parties, in particu-
lar the Annexes, in the Paris Agreement as a major step in the evolution of the
UN climate change regime. The move meant that the deeply contentious issue
of burden sharing between nations’ was side-stepped (p. 182). The prescriptive
approach set out in the UNFCCC, and continued in the Kyoto Protcol, had led
to tensions, especially between the US and leading emerging economies such

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Review of Books 661

as China and India for years. It was a major achievement to change the nature
of differentiation to one which is more flexible. Yet, there remains conven-
tional conditional differentiation for finance, technology transfer, and capacity
building within the Paris Agreement. These will be a source of ongoing con-
troversy within subsequent COPs, especially with future efforts to increase the
ambition of Nationally Determined Contributions, especially if there is a fail-
ure by developed countries to deliver funding, transfer technology and build
capacity.
The final chapter (v) focuses on delivering on the promise of the interna-
tional climate change regime. Particular emphasis is paid to the question of
whether the Paris Agreement’s procedural mechanisms, the transparency
framework, global stocktake and reporting, will create legal due diligence ave-
nues which could be exploited by lawyers. Rajamani quotes the International
Tribunal Law of the Sea (itlos) Seabed Mining Advisory Opinion stating that
‘due diligence is a variable concept. [that] may change over time, as measures
considered sufficiently diligent at a certain moment may become not diligent
enough in light, for instance, of new scientific or technological knowledge. It
may also change in relation to the risks involved in the activity’ (p. 217). It is due
diligence’s dynamic nature which leaves the concept open to interpretation,
creating space for challenging states and businesses through the courts and
lobbying for more ambitious climate change law and policy. For Rajamani this
is the Paris Agreement’s fulcrum in action. She highlights the point by referring
to several recent climate litigation cases at the domestic level as governments
are held to account for failing to uphold the Paris Agreement targets in their
national policy. In addition, the scope of strategic climate change litigation is
now extending to cover business operations, most notably the recent decision
in the Netherland’s against Royal Dutch Shell, the fossil fuel company.4
There is no final chapter in this book that draws together and sets out
exactly how the innovation and experimentation in the climate change regime
‘has challenged the conceptual boundaries of international law and enriched
the core of treaty law and practice’ as claimed in the introduction. The book
would have benefitted greatly from such a concluding chapter that brought
together the core arguments and underscored the main messages of how the
international climate change regime enriches treaty law.

4 For a commentary on the case see Harro van Asselt, Kati Kulovesi, Mikko Rajavuori, and
Annalisa Savaresi, ‘Shell-shocked: a watershed moment for climate litigation against fossil
fuel companies’, (The Centre for Climate Change, Energy and Environmental Law, 28 May
2021) <https://sites.uef.fi/cceel/shell-shocked-a-watershed-moment-for-climate-litigation-
against-fossil-fuel-companies/> last accessed on 09/June/2021.

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662 Review of Books

Nevertheless, Rajamani in this book provides valuable, scholarly contribu-

tion to examining the complex, highly politicised negotiation processes that
have resulted in today’s international climate change regime. It is a book that
could only be written by someone with Rajamani’s knowledge and expertise
from years of following the UN climate change process. The book is clearly
intended to be for international legal scholars, practitioners as well as diplo-
mats. However, any university student taking an international climate change
law module would benefit from reading the it.
The book is by no means the final word on the legal opportunities that the
Paris Agreement and the international climate change regime creates as a
whole. Yet, it provides the reader with an appreciation of how processes and
procedures can be skillfully used to weave a web of legal obligations and cre-
ate a non-legal normative framework to balance differentiation in a way that
opens opportunities in multilevel, transnational law and policy to drive trans-
formations necessary to address the planetary ecological crises in a multipolar
world.

Feja Lesniewska
soas University of London

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