Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty (P.L. Joffe)


Paul L. Joffe


Global warming, sustainable development, international community, global public goods, politics, public interest, climate change, norms and morality


In this article, I first explain how global warming has transformed the struggle to end global poverty and to achieve sustainable development. I suggest that the new situation creates special challenges due to the heightened need for global collective action to produce global public goods, namely unpolluted air and sustainable development.

I then address how the international community determines whether global collective action should be taken and what should be done, focusing in particular on the new poverty and global warming. This includes the history and role of treaties, policy initiatives, and human rights. To illuminate the nature of these and how they are related, I look back at some examples of thinking about rights and law during the seminal period of World War II and its aftermath.

Among other things, this history shows that our modern concept of human rights was heavily influenced by the desire of the United States and its allies during World War II to define the struggle in terms of the rights and freedoms for which the allies were fighting. Americans realized it is in our own national interest to recognize the rights of others. Today, in global warming, we face a new worldwide, revolutionary threat, but also opportunities, that demand unprecedented global cooperation. Unless we take prompt action, we face devastating impacts across the globe, with the poorest nations most exposed because they are less equipped to cope. On the other hand, if we undertake a far reaching transition to a clean energy future, we can reap the benefits of new technology, new sources of jobs, new markets, a cleaner and healthier environment, and stronger sustainable development worldwide.

To meet the threat and develop the opportunities, the international community has a jumble of fragmentary institutions, bits of hard law and large amounts of soft law, rights and obligations often indistinctly defined, and many policy initiatives of uncertain impact. I argue that confronting climate change presents a crisis of inadequacy for this system analogous to the crisis for international cooperation created by World War II. I urge the development of human rights law to help address the problems, but I also urge that we use treaties, policy initiatives, and human rights together to define the global public interest in confronting climate change and its impacts. The result may be a legal and policy landscape changed in some respects, but drawing on lessons of the past regarding the mobilizing force of the moral dimension of law.

Next, I look at the obstacles to collective action and the ways in which these obstacles can be overcome to achieve consensus on global warming, poverty, and sustainable development. This includes exploring how national and private interests can be adjusted to achieve the broader common good of the international community.

I argue that the effort to provide global public goods depends on a politics that creates space for the public interest. In confronting climate change, the public is discovering itself. It is discovering that, while citizens have private or group interests, they also have interests in common with everyone else. A law and politics of the public interest does not ignore narrow interests, but establishes a process to fairly accommodate both. The all-important question of how much weight to give to each and how to integrate them must take place through a democratic process. Approximating this on a global scale creates yet another great challenge.

Finally, I discuss the role of norms and morality and how they interact with interests in the effort to achieve collaboration needed to provide public goods. Increasingly, moral claims are raised on behalf of action to confront climate change. They play an important role in the field of human rights, which are based on ethical standards. Beyond modern human rights principles, however, I note that for centuries it was thought that morality was integral to the entire legal system and I suggest how we might learn from this as we try anew to address the common concerns of the international community.


(2009) 6 Rutgers Journal of Law & Public Policy 269


Conscience and Interest: Law, Rights, and Politics in the Struggle to Confront Climate Change and the New Poverty