The Evolution of Differential Treatment in International Climate Law: Innovation, Experimentation, and ‘Hot’ Law

Abstract

The UN climate regime is a domain of international environmental law (IEL) that has developed in distinctive ways. Applying insights from the work of Michel Callon, climate change is a ‘hot’ situation characterized by ongoing controversy, making it difficult to develop stable and sustainable legal frameworks to manage this state of flux. Building on Elizabeth Fisher’s work positing that environmental law has qualities of ‘hot’ law, this article argues that, in the context of the UN climate regime, the ‘hot’ nature of climate law is compounded by the geopolitical tensions among states in IEL, particularly the deep fault lines between developed and developing states. The novel legal and regulatory solutions that have been experimented with to address issues of differential treatment reflect attempts to manage and contain these ongoing controversies. The UN climate regime yields insights into the promises and pitfalls of designing international legal frameworks to respond to highly contested and divisive issues in a context in which states create, implement, and enforce legal rules.