Chapter 5: Institutional and Legal Structures by John Jopling
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“The whole idea of operating effectively at the world level still seems in some way peculiar and unlikely. The Planet is not yet the centre of rational loyalty for all human kind”. 1972 Report on the Human Environment for the first UN Conference on the Human Environment

Introduction

Given the number and nature of the global problems facing humanity today, not least climate change, I believe that human kind’s most crucial need now is to have the capacity to “operate effectively at the world level”. This therefore is the subject of this chapter. My starting point is that we do not at present have this capacity. I want to suggest how we might acquire it. Like Richard Douthwaite in relation to economic issues, I think there are grounds for optimism here too: the idea of being able to do this is not now so “peculiar and unlikely” as was considered in 1972. This is because I think there are now indications that the Planet is now becoming “the centre of rational loyalty for all human kind”. I hope we can now learn to operate effectively at the world level.

This chapter starts by explaining why the current system of global governance and the process for addressing climate change in particular – that of negotiation between the governments of nation states – has failed and indeed was bound to fail: I point to some of the systemic elements in the design of the system which prevent it from being able to operate effectively. But the problem is much wider than the particular process being used to address climate change. This section ends with some observations about the currently dominant concept of governance more generally: a new climate regime will need to manifest a completely different paradigm of governance.

I then suggest some of the characteristics of a new system of effective global governance. I contrast the advantages of the suggested new format with the shortcomings of the existing one. I go on to explain why I believe that creating a new system is not only necessary but also possible; and that it lies within the powers of ordinary people, who are effectively excluded from the current dominant system and cannot hope to influence it, to step-by-step build a new global structure, making sure from the outset, and at each stage of its development, that it is designed to be capable of operating effectively as a global system.

Our present powerless state is due to trying to operate within a defective system. This proposal aims to address that problem, by gradually building a suitably designed system.

The incompetence of the UN Framework Convention on Climate Change (UNFCCC) and of today’s governments generally

The word ‘incompetence’ is used in the sense of meaning in effect ‘simply not being capable of doing what is needed of it’. The term applies not only to the intergovernmental negotiation process for addressing climate change but to the existing model of government itself: today’s governments are systemically incapable of coping with any of the major problems facing humanity today.

An incompetent process

In relation to climate change, we can take as given the fact that the current governmental and intergovernmental systems for addressing this extraordinary problem have failed and show no signs of recovering. This is now widely acknowledged. 25 years after the problem of the rising level of global warming gases in the atmosphere was brought to the attention of governments, the international community has failed even to agree what is a safe level, let alone commit to achieving such a level. The 1992 UN Framework Convention on Climate Change was basically a framework convention that left much, far too much, to be negotiated later. Whilst the stated objective was to stabilise greenhouse gas concentrations, no target level was stated, nor has one ever been agreed. Since 1992 net emissions have continued to increase, at an increasing rate too, resulting in continuing temperature and sea level rises and triggering various dangerous positive feedback loops, such as the melting of arctic ice and the warming of frozen ground in Siberia. Climate scientists are in no doubt that we now have a crisis [1].

I attribute the failure of the UNFCCC not to any incompetence on the part of the individuals involved in operating the system but to the model of intergovernmental politics which they inherited and on which the current systems are based. The problem is not the behaviour of particular nations or the people representing them (which is where the blame is usually leveled), but the model. The model has many flaws:

World as collection of states

It is based on the view of the world as a collection of states. This means that international action on climate change depends on agreement being reached through negotiations between the governments of countries with widely differing circumstances and widely differing, and often conflicting, interests in the context of climate change. The obvious and now widely recognised result is that it is extremely difficult, perhaps even impossible, for the nations of the world to agree about something as contentious and complicated as climate change and what to do about it [2].

Agreement only by compromise

Agreement, if it is reached, can only be achieved by compromise. So the aim of those in charge of the process is to secure a compromise, rather than for governments to take the actions needed to avoid the disaster we are currently heading for [3].

Limited powers of governments to deliver

Another simple but frequently overlooked point is that governments have limited powers: nation states are limited in the degree to which they can directly affect emissions of greenhouse gases and the ability of societies and economies to adapt to climate change [4]. Even if they agree something between themselves, it does not necessarily follow that it will happen. Which incidentally tends to mean that they will only agree what they think they can achieve without difficulty.

Other species and ecosystems not parties

A fundamental flaw is that there is no adequate representation of other species and ecosystems or of future generations of our own species. If any compromise is arrived at, it will necessarily have been agreed without either future generations or other species being represented round the table. These interests are of course represented by numerous NGOs given a hearing in the negotiations but these organisations are not going to be parties to any agreements reached and their representations are in practice generally ineffective.

Governments able to interfere in the science

Another problem is the system established for giving governments and the public information about climate change. The International Panel on Climate Change (IPPC), the system set up by the United Nations Environmental Programme (UNEP) and the World Meteorological Organisation (WMO) in 1988, is neither comprehensive nor independent: governments can and do influence the terms of the published reports [5].This creates the perfect environment for fossil-fuel funded propaganda to flourish in. The result: the public is misinformed and bewildered.

No risk management

Linked to that is the absence of an effective risk management system to assess the likelihood of particular changes and the seriousness of the consequences. Risk management is essential for applying the precautionary principle, which although enshrined in the UNFCCC is currently being largely ignored due to the lack of such a process within the current arrangements.

No procedure for an emergency

A more specific defect of the UNFCCC process that is directly related to one of the main topics of this book is that it lacks any procedure for taking urgent action in the event of an emergency. Climate change was recognised by the UN General Assembly in 1988 as ‘a common concern of mankind’ and this was the general understanding at the time the UNFCCC was set up in 1992 and when the Kyoto Protocol was signed in 1997: it was not seen as a crisis requiring immediate action. Since then, due to human-induced forcing, the emission of CO2 in particular, having triggered a number of positive feed-back systems including the melting of Arctic ice and release of methane from permafrost, the situation has become far more critical. We now have an emergency on our hands: what we need now is urgent action to staunch the haemorrhage of global warming gases into the atmosphere. The UNFCCC was not designed to provide this sort of emergency operation and shows no sign of doing so.

The only possible conclusion is that the current system of negotiation between nation states is not a system that (to repeat the language of the 1972 reporters) enables human kind “to operate effectively at the world level”.

I should add that the view that the international system itself is incompetent is neither radical nor new [6].

It must also now be borne in mind that the incompetent international system set up in 1992 is no longer the only actor on the stage of climate change governance. As a number of writers have observed recently, the landscape today is not simply a failing or failed multilateral negotiation process, with the rest of the canvas blank. Many initiatives of many kinds, within the meaning of ‘governance’ broadly defined, are responding to climate change and to the failure of our governments to address it: local communities, municipal and provincial and national governments, businesses and various other actors are now engaged in a host of projects and processes that are independent from the intergovernmental process and from national regulatory measures [7].

The result is that missing from all existing initiatives in climate change ‘governance’, whether on their own or together, are a number of critical capacities:

  • The ability to set specific global science-based targets, whether in terms of concentrations of particular gases in the atmosphere, or of reducing world emissions into the atmosphere of particular gases, or of increasing particular forms of draw-down, or otherwise. The need for global targets arises simply because the atmosphere is global: climate change is a global phenomenon.

  • The capacity to design global policies that are both effective to meet the science based targets and also socially just.
  • The capacity to implement and administer policies requiring some form of global administration.


An incompetent model of government

A more fundamental issue concerns the model of government dominant throughout the world today. The failure of governments to reach agreement concerning climate change is not their only failure: they have proved incapable of dealing with a whole range of problems facing them today. In spite of all the advances in science, technology and other fields over the last half century or so, governments, whether democratic or otherwise, and whether or not supported by huge and highly trained civil services, are faced with ever larger and more intractable problems. Government itself seems to be the problem.

This is not the place to analyse the nature of the present governmental system in any depth. Roy Madron and I attempted to do this in our Schumacher Briefing Gaian Democracies. We identified 6 core components of the system which together define it:

  • first, and most fundamental because it is the purpose of any system that limits the way the system is capable of working, the ‘common purpose’ of the present dominant governmental system is that of money growth in order to maintain the bank-created, debt-based money system (which is why we named the system a ‘Global Monetocracy’) [8];
  • the system is held together by an ‘elite consensus’ upholding the values and assumptions of the Monetocracy, which means that alternatives to the growth imperative of the current money system cannot be seriously discussed;
  • it justifies itself through a number of shared operational theories including neo-liberal economics, national sovereignty, representative democracy and command-and-control leadership;
  • it has a global leadership cadre covering politics, finance, corporate business, academia and the media;
  • it operates through the big business – government partnership by means of an armory of operational instruments including transnational corporate capitalism and international institutions, like the World Bank, the IMF, the WTO and the EU [9].

Nor is this the place to describe the wider consequences of having such a system dominate our world, both within nation states and at the international level. Writers such as Noam Chomsky, John Pilger, Colin Leys and Naomi Klein describe precisely the kind of activities and behaviours that are only to be expected from such a system, because they are the inevitable consequences of the design of the system. Given its nature and systemic purpose, it is simply incapable of dealing with circumstances that require humanity to halt growth. There is no way, under the present system, that human activity on the Planet could be managed sustainably, because that would conflict with the growth imperative.

It is hardly surprising that the schemes set up within the UNFCCC have been of little or no use in addressing climate change, but have successfully created several new market opportunities for financial markets, as these help to create money-growth [10].

The crucial point I am making here is that the government systems that have grown up over the last few hundred years are systemically incapable – that is to say incapable because of their design, or more specifically their systemic purpose – of coping with climate change or, for that matter, numerous other ‘wicked’ problems facing the whole human family at the start of the 21st Century, let alone the further problems that will inevitably confront us in the future due to climate change, oil and gas peak, biodiversity loss, numerous kinds of resource depletion and many others [11]. The systems we have today are holding us back from being able to “operate effectively at the world level”. They are actually taking us in the wrong direction and getting in the way.

For many, including many experts in the field of climate change who know that urgent action needs to be, and can be, taken to address climate change and who are appalled by the failure of governments to respond to the evidence placed before them, the problem appears to be a lack of political will on the part of politicians and bureaucrats dominated by armies of corporate lobbyists. This is extremely frustrating because there appears to be no way round it. Public opinion is easily swayed by the media, most of which is also dominated by corporate interests; and anyway it is very difficult for ordinary members of the public, even including distinguished scientists, to have their voices heard on issues such as climate change, certainly not heard above the much louder voices of the corporate lobbyists [12].

The need for a new strategy

If I am right in saying that the human family does not at present have an effective system “for operating effectively at the world level”, the question we have to ask ourselves is: what can we, as ordinary citizens of the world, do about it? The current strategy of the most concerned and enlightened people is to increase the pressure on governments. But, given the nature of today’s governments, and the dominance of the corporate lobby, I believe that this strategy is extremely unlikely to be effective: it is like pushing a piece of string, attempting to get a system to do something it is incapable of doing.

I conclude that we must develop another strategy, one that has a better chance of success. If, as I believe, the fundamental problem is the system, then to my mind, the only strategy that has any chance of working is that of creating a new system, one that is consciously designed to avoid the flaws in the current one. I suggest that climate change may be the issue that could generate the critical mass of public support needed to build a new system; and that the current window of opportunity to avoid runaway climate change offers an opportunity to make a start on creating a new system that is specifically designed for managing the human response to climate change.

The proposition that new institutional arrangements are needed to manage a global economy operating within global limits is not a new one [13]. I go further and argue that, step by step, we need to build a completely different kind of system.

The nature of the proposed new structure

A new structure created by ordinary citizens would have to be constructed from the bottom up and would have to be built brick by brick. There are a number of things we need to get right from the start. We can identify some of these by reference to my list of the systemic defects of the current system. What would be the corresponding features of an effective system?

The world is not just a collection of states, it consists of people and hundreds of different kinds of organisation

My first point was that the UNFCCC and the negotiations conducted under it as well as the Kyoto Treaty assume that the world is a collection of nation states, which therefore have to reach agreement in order for there to be a global decision. Well, the world does not have to be, and should no longer be, thought of simply as a collection of nation states.

In his 1989 Hull University Josephine Onagh Memorial Lecture “International Law and International Revolution: Reconceiving the World”, Professor Philip Allott described how the view of the world as a society of states only arose in the 18th century. Up to then, there was an idea “that all humanity formed a sort of society and that the law governing the whole of humanity reflected that fact”. The Spanish writer Francisco de Vitoria, for example, in the 16th Century, regarded this universal law for all human beings as found in natural reason, the rational character of human nature.

That view gradually disappeared as what in fact came into being were nation states ruled over by governments, not world-wide institutions. In the 18th Century, the French writer, Emmerich de Vattel, concluded from this that there could be no great republic set up by nature herself. In his view, the state was not only the internal organisation of the public realm of a society, it was also the whole of a society when seen externally. So states, represented by their governments, were the only legitimate players on the international stage. Vattel was widely read. His thinking suited the interests of the powerful. His was “a book which formed the minds of those who formed international reality, the international reality which is still our own reality today”.

The world-of-nation-states point of view still dominates mainstream thinking, though by no means as comprehensively as before, as evidenced by the mushrooming of International Organisations and the number of universal problems such as over-population, starvation, pollution and destruction of the environment confronting mankind [14]. But we do not have to think of the world simply as a collection of nation states. We do not have to assume that measures for addressing global problems, such as climate change, can only arise out of negotiations between nation states.

Climate change directly affects, and is effected by, people – with their cities, their industries, their transport systems etc -, rather than nation states as such. The stakeholders include everyone alive today (especially the vast majority of the world population who are suffering most of the damage caused by climate change but who contributed little of the greenhouse gas emissions), future generations of people and also other species and ecosystems. We need to design a governance system that gives all those affected a voice and is effective to control the activities needing to be controlled.

The basis of climate change targets and policies should be climate science and sound economics, not negotiation and compromise

My next point was that decisions reached by negotiation between nation state governments invariably mean compromise – with targets and commitments that fall short of responsible risk management. The targets and policies should be based on what is necessary for global safety. That will not arise from negotiations but from a dispassionate review of the climate science. The fact that governments may not be prepared to accept those realities is an entirely separate matter – one needs an organisation that is bound to base itself on the climate science as far as possible and that is obliged to tell this truth to all forms of power. If governments do not then accept that, that is an issue to be worked on certainly, a problem that has to be overcome – but that is quite different from relying on negotiated agreements that are inadequate from the point of view of climate safety and the future of humanity. We need a system that is prepared to take a position completely independent of governments and corporations and base itself on the climate science and on its accumulated moral authority, even if that meant, in extremis, an absence of endorsement by a host of governments that are in denial and in dereliction of their duty to their citizens and to world citizens.

The system needs to include all organisations who can deliver

Effective ‘command and control’ government depends on being able to command and control, if necessary by force. The third point made above was that there are limits to what a modern government can enforce, except perhaps when under threat of invasion. We need a global structure that does not have this problem because it does not depend on having powers of command and control. It will need to operate in a completely different way. This is discussed below.

Other species and ecosystems must be represented

I envisage a new structure that sees itself as representing the whole of humanity including future generations; and, as we depend on, and indeed are part of, the Earth’s biodiversity, it will also represent other species and ecosystems. There are many practical ways in which this representation can be realised in the procedures adopted.
The science must be free of government interference
My next point referred to the flaws in the IPCC. To ensure that all decisions are in future based solely on the latest climate science, it will be essential to establish an independent worldwide climate science information service as part of the new structure.

Risk management

Effective risk management is crucial. This should be made mandatory within the new structure.

Taking emergency action

Finally the new structure must be designed so as to be able to reach decisions and act as quickly as the situation requires.

What is the alternative to the Global Monetocracy?

My list of the systemic defects of the current system was followed by a discussion of the current model of government generally. The proposed new structure obviously needs to be based on a completely different model. Any form of ‘command and control’ system is out of the question. We are looking for a system that is stable but has the flexibility and diversity needed to cope with the complexity of the world and the ‘wicked’ problems we face.

Here again we can contrast the components of the Global Monetocracy with the kind of system now required to operate effectively at the world level.

  • instead of a ‘common purpose’ resulting in the imperative of economic growth, we need the common purpose of climate safety and climate justice – we need a system that has the Planet “at the centre of rational loyalty for all human kind”;
  • instead of an ‘elite consensus’ upholding the values and assumptions of the Monetocracy, we need an atmosphere of tolerance, cooperation and creativity so that every issue that arises can be openly explored and discussed;
  • instead of theories like neo-liberal economics and national sovereignty, we need to substitute principles such as subsidiarity and concepts such as human rights, social justice and Earth Jurisprudence (this is referred to below);
  • instead of the current global leadership cadre we need a far more open society;
  • and instead of the big business – government partnership, we need to exclude corporate influence over the governance system.

These bullet points suggest an outline of the very different system of governance that is required to enable humanity to “operate effectively at the global level”. A number of principles of effective organisation developed over the last half century or so may help to flesh it out. Some examples are referred to in the text box.

The principle of subsidiarity

This is the principle that all functions should be carried out at the lowest level at which that function can be carried our satisfactorily [15]. The principle seems right intuitively, giving everyone the maximum freedom compatible with the wellbeing of the wider communities they are part of. This might be the guiding principle for the level at which decisions are taken about an issue discussed elsewhere in this book, the distribution of the proceeds of sale of climate permits. The principle accepts that some functions and decisions may have to be carried out or taken at the global level: putting together the findings of scientists working in a wide range of disciplines relevant to climate is one example; a global cap on the introduction of fossil fuels into the economy and the global level administration of global schemes like Cap and Share are also examples.

Stafford Beer’s Viable Systems Model

This model envisages that, instead of responsibility and power being in one entity called the government, autonomy and responsibility are shared out throughout the organisation with the aim of ensuring that it can survive in a changing environment. The VSM offers a language to help people work out how to do this [16].

Ashby’s law

This states that only variety can absorb variety. It is one of the laws of the science of self-regulation known as cybernetics, which has been developed as a tool to help organisations manage themselves effectively. For Beer and other cyberneticians this law explains why top-down government, where decisions affecting many are taken by a few, is so ineffective: the few decision-makers do not have the variety to match the variety of the world they are up against, so they are overwhelmed by the complexity of the system [17].

The growing commons movement

Commons thinking, referred to elsewhere in this volume, is much more than a mere theoretical model, it is a living and growing movement which should in future underpin all governance issues relating to natural resources. We need to learn how principles successfully applied to the management of human relationships with local natural resources can be applied to the management of humanity’s relationship with the Earth’s climate.

Participatory democracy

Whilst representative democracy is the form of democracy that suits command and control government within the Global Monetocracy, the new structure will need to develop forms of participatory democracy. We need to learn, for example, how processes developed to enable thousands of citizens to take part in decision making relating to their city can be developed to enable billions of global citizens to take part in decisions about the use of scarcity rents from the sale of permits to pollute a global resource; and how the practice of courts of law where an advocate is appointed to represent the interests of unborn persons, infants and persons of unsound mind, can be developed to ensure that the interests of those who cannot participate actively are taken fully into account [18].

The principle of participation has another side to the coin: corporate bodies, whose overriding purpose is to make money for the owners, should not be participants, because they are merely legal constructs whose overriding purpose is incompatible with Humanity’s interest in remaining a viable species[19]. The distorting consequences of corporations being able to influence governments are evident today almost everywhere, including in the UNFCCC process itself [20].

Reference to the principles referred to in the text box, to the commons movement and participatory democracy is intended to do no more than give a flavour of the sorts of new structures envisaged here. It should be clear that I am not contemplating a ‘revolution’ in the sense of destroying or undermining any existing governmental or other system. The new framework is envisaged as operating alongside existing systems and working in cooperation with them, so long as they last. The concept needs developing with the help of experts in organisational development [21].

Comparable initiatives and related movements

The idea that an international institution could arise from a citizen’s initiative is not a new one. There is the well-known example of Henri Dunant whose actions, after he had seen 40,000 soldiers left dead or dying on the battle field at Solferino in 1859, led to the formation of the International Committee of the Red Cross [22]. Other international institutions that owe their existence to the persistent efforts of citizens include the International Criminal Court [23]. A parallel initiative today is the current project to create an International Court for the Environment [24].

This project will be part of a wider movement to develop ways for humanity to live in a sustainable relationship with the natural world of which we are part. Earth Jurisprudence, for example, is an emerging set of principles reflecting the change in our understanding of our relationship with nature, from an anthropocentric world view to one that sees humans as an integral and inseparable part of the earth system. The term ‘wild law’ is used to describe measures, such as constitutions and regulations, that give practical effect to principles of Earth Jurisprudence [25].

  • New Zealand has passed laws that value the Earth for its intrinsic value.
  • In 2007 the Ecuadorian government offered to forego drilling for oil in the Yasuni rainforest, one of the most biodiverse places
    on Earth, if the international community agreed to reimburse it for at least $3.6 billion over the next 13 years, or half of what it would earn from exploiting the oil. In August 2010 Ecuador and the United Nations Development Program signed an agreement to put in place a trust fund where countries can contribute to the initiative. Germany, Belgium, Italy, and Spain have already offered their financial support to Ecuador, and China, Korea and Japan have recently expressed interest in participating.
  • Equador’s new constitution has a chapter on Rights for Nature that creates a new regime of environmental protection.
  • Bolivia proposes that the United Nations adopts a Universal Declaration of the Rights of Mother Earth, in terms similar to the Universal Declaration of Planetary Rights proposed by English lawyer Polly Higgins in her address to the United Nations in November 2008.

A first step: establishing a Global Climate Commons Trust

A first step towards establishing the new structure could be for citizens to establish a new independent organisation to implement and administer climate policies requiring some form of global administration. This would be designed to avoid the flaws in the UNFCCC system – for example it would be charged with acting on behalf of humanity as a whole, including future generations. Such an organisation would set specific global science-based targets, whether in terms of concentrations of particular gases in the atmosphere, or of reductions in world emissions into the atmosphere of particular gases, or of increases in draw-downs to take greenhouse gases out of the atmosphere into sinks and biomass. It would have the capacity to design and administer global policies that are both effective to meet the science based targets and also socially just. States would be invited to endorse and legitimise its operations on their own territories.

In discussion about this idea, the new organisation has been referred to as a Global Climate Commons Trust. The Trust would be established in a particular country whose laws include the centuries old concept of the trust, for example England or Ireland. Here we already have a basic framework of law within which trusts operate; plus the appropriate regulatory and court system. The law requires trustees to act with undivided loyalty to the purposes of the trust and they must act transparently. The Trust would be a recognised legal entity able to establish relationships with other entities including states; and obligations written into the constitution of the Trust to ensure transparency and accountability would be enforceable in courts of law.

The Trust could be given an initial remit to introduce and administer a global Cap and Share scheme, as described elsewhere in this volume. Its constitution could allow for other functions to be added later. Its first actions would be to set a global upstream cap on fossil fuels, issue the number of upstream permits limited by the cap, ensure that full market value is paid for these and arrange for the distribution of the proceeds of the permits – Richard Douthwaite’’s chapter refers to five purposes for which these proceeds could be applied.

The Trust would need to comply with the principles of natural justice and the rule of law, for example, not purporting to set a cap retrospectively but giving reasonable notice of changes; giving stakeholders a chance to be heard before a decision is made, presumably, in view of the numbers involved, via some representative organisation or group; and not favouring any one supplier over others. A requirement to observe the rules of natural justice and to comply with the rule of law could be written into the constitution of the Trust; these duties could be enforced through the courts.
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The legitimacy of the new structure and its relationship with the UNFCCC

Questions in readers’ minds are likely to relate to the ‘legitimacy’ of the structure we are envisaging and its relationship with the UNFCCC and nation- state governments generally.

The ‘legitimacy’ of a Global Climate Commons Trust

Complying with the law, observing the rules of natural justice and the ‘rule of law’ do not of themselves confer ‘legitimacy’, an expression which has a wider and less well defined meaning. The practical test of legitimacy is general acceptance [26]. A Global Climate Commons Trust would be able to claim a tentative kind of legitimacy from the outset on the grounds that it constitutes a reasonable initiative to provide an effective way of addressing the concerns of the public about climate change and responding to the evidence of climate scientists, given the failure of current processes to address this grave danger effectively. Whether that claim comes to be accepted would be likely to depend on whether this institution succeeded in winning public support and the collaboration of nation state governments, bearing always in mind that noone will support, and no government will collaborate, unless they have chosen to do so. If and when the new arrangements had succeeded in winning public acceptance, they would then be ‘legitimate’. That they may not be, indeed cannot be, so at the start is no ground for not starting!

Relationship with the UNFCCC

As to a Global Climate Trust’s relationship with the UNFCCC, the Trust could be incorporated into the UNFCCC regime to take effect after 2012. The ultimate objective of the Convention, stated in Article 2 is “to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.” The first principle of the Convention, stated in Article 3.1, is that the states signing the Convention “should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity, and in accordance with their common but differentiated responsibilities”. The new structure I am proposing, which a Global Commons Climate Trust would be part of, would provide a structure to enable states to help humanity implement this principle. The words of the Convention recognise that climate change is not primarily an issue between states: it is primarily an issue for the whole of humanity. But whilst incorporation into the UNFCCC regime to take effect after 2012 is a possible development, and could be very desirable, it is important to stress that the formation of a Global Climate Commons Trust is not necessarily dependent on adoption within the UNFCCC system.

Other likely developments

Establishing a Global Climate Commons Trust with an initial remit to introduce a global Cap and Share scheme would lead naturally to the development of other components of a new global climate governance system.

  • I have referred above to the need to establish an independent worldwide climate science information service as part of the new structure. This would be needed to ensure that the decisions of the Trust are truly science-based.
  • Every component of the new system would benefit greatly from a
    clear statement of its purpose [27]. In contrast to the current system’s commitment to economic growth in order to maintain the debt-money system I have referred to the need for the new system to have the Planet “at the centre of rational loyalty for all human kind”. The new system would need to have climate safety and social justice at its heart. It would benefit greatly from an express statement of the principles that would be applied at every level of the system, a Climate Commons Charter. A wonderful statement on which to base this already exists in the form of the Bolivian Universal Declaration of the Rights of Mother Earth [28].
  • The Trust’s arrangements for the distribution of the net proceeds of the sale of permits would need to be designed based on principles such as subsidiarity and the Viable Systems Model.

    Misconceived? Or just a pipe-dream?

    Doubts about this proposal, raised by people who are well aware of the climate crisis and the need to take action to reduce CO2 emissions, are roughly of two kinds, or a mixture of the two. The first type of objection is that what is required is action by governments; the continuing rise in CO2 emissions is driven by corporate imperatives and corporate powers that only governments can restrain. It is not something ordinary citizens should attempt to tackle themselves. The second point of view is that whilst this proposal is well-intentioned it is unrealistic to hope that it stands any chance of succeeding in the real world, so we would be wasting our time trying.

    Objection (1): this task is for governments

    In reply to the first type of objection, the key point is that climate change calls for international action. If the task of reducing total global emissions is left to the governments of nation states acting separately, and to the initiatives of citizens and cities, corporations and NGOs, there can be no certainty of achieving the necessary reductions anything like quickly enough. It is a task that requires urgent coordinated action by all nation state governments and other players. The current problem is that the process set up in 1992 to bring about the necessary coordinated action has failed. There is an empty seat behind the global government desk [29]. And the many initiatives outside the UNFCCC process are not coordinated. The question now for everyone is: how can the necessary coordination of nation state governments and other players be obtained? Our proposal offers an answer to that question: instead of relying on the necessary coordination to emerge from negotiations towards an agreement between nation-state governments, we propose a process whereby a judgement based on the latest climate science is arrived at by an independent body representing life on Earth and which also offers to administer worldwide schemes which will achieve the necessary targets if nation-state governments agree to give their officials the necessary instructions and/or corporations decide to cooperate voluntarily.

    The proposal should thus be seen not simply as a new institution claiming to exercise powers properly the function of governments; but rather as a way of putting in place an appropriate and effective process to operate in lieu of the current failed process. The proposal does not challenge the sovereign powers of nation-states or the functions of governments in relation to their boundaries or economies. The legally binding nature of any scheme introduced by the new institutions will depend of the cooperation of nation state governments exercising control over their own territories. Nor is it being suggested that an institution should be created that will itself have powers of compulsion over oil and gas or coal-mining companies which chose not to cooperate.

    Objection(2) this is just wishful thinking

    The second type of doubt – that whilst this proposal is well-intentioned it is unrealistic to hope that it stands any chance of succeeding in the real world – is more a matter of attitude than of logic. In view of the information coming from top climate scientists and the record of governments in response, humanity undoubtedly faces a hugely serious crisis which governments are failing to meet; and noone has so far suggested any other way of making sure that greenhouse gas emissions and concentrations in the atmosphere are brought down fast enough. It is a situation that demands a new initiative. Whether this initiative succeeds will depend on whether it attracts enough support and participation, from distinguished leaders, from climate experts, from constitutional draftsmen, from publicists, above all from many millions people around the world. With the help of modern communications technology it is not unreasonable to believe that the necessary support and participation will be forthcoming and that people will be able to bring enough pressure to bear on their own government to persuade it to work with the new system.

    True, most governments, and most government officials and politicians, can be expected to oppose the whole idea, since the justification for it is the failure of the existing inter-governmental system, and because it seeks to introduce a new extra-governmental actor into an area that has been assumed to be the
    sole responsibility governments. Some elements of the business world may be more sympathetic but a vast army of coal, oil and gas industry lobbyist are certain to support government opposition. The media cannot be relied on to be any more helpful.

    Even if a Global Climate Commons Trust won widespread public support, it does not follow that governments would agree to cooperate. They, or the majority of them, will still be part of the Global Monetocracy with all the limits this implies on the possibilities open to them. Just as there was very widespread opposition at least in Europe to the invasion of Iraq in 2003, for example, this did not prevent the United States and Great Britain from going ahead with an illegal war. This is the kind of behaviour we can expect from powerful governments in the interests of multinational energy companies.

    So how could the inevitable opposition be overcome?

    It may partly depend on how the task of building a new system is begun. One possibility is that a Global Climate Commons Trust is set up by people of the highest standing, a group well-qualified to take on this responsibility. The same could apply to the proposed independent climate science information service. It would be possible to make sure that both are properly established so as to command respect.

    A completely opposite approach would be to create an alliance between the people with the least standing in the world, indigenous peoples, around the rights of Mother Earth and the need for a global trust organisation to defend Mother Earth; and then, and only then, get “people of standing” to endorse the initiative of indigenous peoples.
    One way to start would be to set about creating an “Upstream Fossil Fuel Data Base” to identify where coal, oil and gas is coming out of the ground and into the global economy – the locations and installations that will have to be rapidly closed down. Creating such a data base wikipedia style could be, indeed it would have to be, one of the first projects of an independent process. It would bring together people keen to support the idea of building a new system from the bottom up. It could be a project for people taking part in the Occupy movement.

    Whichever way it achieves ‘lift-off’, to grow the initiative will have to attract widespread support from a wide variety of groups and interests. There must be a good chance of its doing so especially in the aftermath of Copenhagen, Cancun and Durban. The obvious incompetence of governments in managing the global financial system can only help.

    The first and possibly the main tool at our disposal for overcoming the expected opposition will be direct campaigning. This will build on the massive campaigns involving millions of people conducted since the threat of climate change became a public issue in the 1980s. But it will transform the nature of these campaigns from that of trying to influence the way the current defective system works, essentially trying to persuade it to do things it is not designed to do, to that of inviting governments to collaborate with a new effective system, by performing the crucial, but not too difficult, job of policing the introduction of fossil fuels into their economies by banning the introduction of fuels not covered by a Trust permit. Moreover, the pressure on governments not to collaborate to be expected from the fossil fuels industry can be countered by pressure from the renewable energy industries which would benefit from the countries they operate in joining the scheme.

    A possible positive knock-on effect may be to lift people out of their current condition of widespread denial and apathy, which although due mainly to ignorance and misinformation, is partly attributable to the lack of an alternative to the existing system. If truthful climate science information is accompanied by the practical possibility of taking part in building an alternative, people may be more ready to face up to the real danger we are in. Once the process of building the proposed new institutional arrangements has begun, this will provide everyone with something positive to do towards addressing the global peril, not just in their back yard and their local communities but at the global level. As well as being the best way of achieving the necessary reduction in fossil fuel emissions, by providing an alternative to the flawed international negotiation process, our proposal may indirectly help to unstick the general public denial – the general public’s failure to recognise both the peril we are in and the incompetence of governments to deal with it. It attempts at any rate to bypass all these blockages.

    Realising widespread support

    The case I am making here is that the system the world needs in order to address the global problem of climate change must be global in scope, but not hierarchical (that is to say ‘command and control’) in character. The participants should be as diverse as possible. What will hold the system together is not top-down authority, or a compromise agreement thrashed out over years of negotiation between politicians and civil servants (as was the intention of the UNFCCC process), but a clear ethos shared throughout the system by everyone engaged in it. If we are going to establish a world-wide architecture to manage schemes like Cap and Share, in a highly complex, ever- changing, and, for many, dangerous context, it is essential that the participants can work together, trust each other, resolve differences, cooperate and coordinate and so on. The system we are establishing will have to be as diverse as the environment it is dealing with (Ashby’s law), but if those engaged in it do not have shared values, shared ‘heart’, it is common sense to predict that it will fall apart – especially given the prospect we face of turbulent times ahead.

    The proposition put forward here is that the world needs a system of managing human impact on the Earth’s climate that does have widespread support and participation – unlike the present one. The project of creating such a system will stand or fall depending on whether it does attract widespread support. A chicken and egg situation.

    The system must therefore be created and run by people who share the same values. Just how these are defined is not for consideration here. The wording can be agreed through a participative process and incorporated in a Climate Commons Charter; but the substance of the shared values cannot be negotiated. This initiative can only take off if there are people sharing the same values around the world to make it happen. There are grounds for confidence that there are. The participants in this task will be the millions of people around the world who understand the peril we are in and who put their responsibilities as world citizens ahead of other loyalties and interests. They are the worldwide community of ecologically engaged citizens. If we were not confident that this community already exists we could not even start to work on designing the new system.

    As I have observed, in today’s mainstream world the non-contestable objectives are those of economic growth and ‘development’. But this initiative is not a product of the mainstream. It will be carried out by people who have given up any hope they ever had of responsible behaviour coming from the mainstream system. They may have reached that conclusion from personal experience, and from reading books by writers who have stood above the crowd, seen the current mainstream system for what it is and enlightened the rest of us. [30] These people have realised that the existing system identifies with the dominant elite, with Man as above nature entitled to exploit it as a resource without regard to natural limits, or to the importance of biodiversity and the health of ecosystems, or to the operation of the feedback loops that have kept the Gaian system as a whole balanced in a state favourable to human life for thousands of years. These people share a longing for the world to be ruled by a very different value system.

    These values represent an understanding of life shared by millions and for thousands of years. They have even, over the last half century, been fighting their way to the surface of international relations, emerging in the form of UN declarations such as the Declaration of Human Rights, the Earth Charter, Biodiversity Convention and the Declaration of the Rights of Indigenous people. These charters and conventions, widely disregarded by governments when it suits them to do so, reflect values which are widely held throughout the world by individuals and non-governmental organisations, without whose persistent efforts many of these instruments would never have come into existence. They reflect the writings of thinkers, too numerous to mention, who have spoken out about our nature as social beings, and as part of, not separate from, the natural world.

    These values are the values practiced in their lives by thousands of groups as identified, for example, by Paul Hawken’s The Blessed Unrest [31]. They are shared by many now taking part in the Occupy movement.

    An important consequence of the need for the new system to have a clear ethos and identity is that corporations constituted to put shareholder value above all other considerations cannot be part of it. They will continue of course with their business as usual; and they will no doubt continue to exercise influence over governments, but unless they change their dominant purpose to that of the public good, they cannot participate in the operation of the new system. By excluding corporate interests from participation in or influence over the new system, it will be free from one of the most disabling weaknesses of the current governmental system.

    Taking part in a natural process

    The task we are envisaging is massive in scale and difficulty. It may help to see that the process is a perfectly natural one. Here are four concepts about the way natural systems work that we can relate it to.

    Growing up

    Following birth and infancy, living systems pass through a competitive, self- interested, irresponsible, growth stage before this gives way to a mature cooperative stage of adulthood. During the growth phase of human civilisation, it was not surprising that a system of competitive markets developed, with the main players being corporations legally bound to promote their own interests above all other possible considerations and so contribute to growth, with a bank-created-debt money system that has to grow in order to avoid collapse, all legitimised by nation state governments largely unable to resist the pressure of corporate lobbying. The competitive adolescent growth phase cannot continue any longer in a finite world; and we have already come up against, and indeed passed, numerous limits. It is time humanity moved into its mature phase. Today we need a cooperative system of economics and governance designed to achieve a stable, steady state economy [32].

    Adaptive cycles

    Ecologists have suggested that all ecosystems pass through four phases – rapid growth, conservation, release, reorganisation; and then the same four phases again, rapid growth, conservation, release, reorganisation [33]. We can apply this model to the political process over the last few centuries. Where are we today in the cycle? Over the last century governments have got bigger and bigger. Societies today are ruled by countless pages of legislation and regulation administered by vast bureaucracies. Yet all this government has failed to bring us either peace, or social justice or sustainability. In particular it has spent the last twenty years failing to bring about a reduction in CO2 emissions into the atmosphere, arguably the most important single thing governments should have done for the safety of people. Governments, and the growth economy that governments promote at all costs, have led the world into an extremely unstable state, in terms of both finance and climate. So we have obviously been enjoying, if that is the right word, the conservation phase. If analysts like David Korowicz and Stoneleigh [34] are right we must be getting very close to the release phase.
    The significance of this is that this is the point when we can no longer take the governmental system as a given, as has been the case in most western nations through most of the 20th Century – the differences being fought out were generally about who should be in charge and what should their policies be, whether to have more or less state control and so forth, not as to the nature of government itself. Now, as we approach the reorganisation phase of the cycle, this is the time when we have to stand back and think hard about how we can reorganise. In the re-organisation phase many of the components of the existing system are put together in a new way, reconfigured to create the reorganised system. The discussion we are having in this chapter is timely in terms of the natural adaptive cycle of political institutions.

    Creativity

    The reorganisation phase of the adaptive cycle is where nature’s capacity for creativity is realised. In Creative Leaps Shape the World William Graham Smith wrote “A very remarkable feature of the Universe is its capacity to create new kinds of things with new qualities, and hence to give rise to new overall situations, out of pre-existing ones…..There is now an urgent need for us to make a careful and sustained attempt to try to understand the nature of the problems that currently confront us and how we might use the creative potential existing on this planet, and not least within ourselves, to create a more satisfactory order of things here on the planet on which we live” [35].

    Evolutionary leap

    Complex adaptive systems, like the Earth, or governmental systems, rarely act instantly, they take some time to react. In systems-speak this is called system delay, inertia or lag. The Earth’s climate has been slow to respond to the much higher than usual concentration of CO2 in the atmosphere due to man-made emissions. Governments have been slow to respond to the looming climate change crisis. And we the public have been slow to respond to the failure of the current governmental system to cope with a wide range of problems, including climate change. Sooner or later, on all these fronts, change may start to happen very fast. Eckhart Tolle has written “When faced with a radical crisis, when the old way of being in the world, of interacting with each other and with the realm of nature doesn’t work any more, when survival is threatened by seemingly insurmountable problems, an individual human – or a species – will either die or become extinct or rise above their limitations with an evolutionary leap. This is the state of humanity now, and this is its challenge” [36]. Will our species rise above the limitation of having inherited a useless governmental system? And will this happen before the Earth system slides into rapid and unstoppable change?

    Those four concepts enable us to take on the task of building a new system for addressing climate change knowing that in doing so we are taking part in a natural process. These concepts are not mere metaphors. They help us to understand the nature of the natural world and how it adapts and evolves. Human social systems, human civilisation itself, are natural phenomena. They seem to share many of the characteristics scientists have observed in non- human living systems; and to pass through the same cycles.

    Most major changes in human affairs, such as the Industrial Revolution, happen spontaneously. Today major changes of some sort are absolutely bound to result from oil peak and climate change during the next few decades. The only uncertainty is as to the nature and degree and timing of the changes. Under ‘business as usual’, a continuation of the growth economy, which is where current governmental systems are taking us, the future will be very ugly indeed. But we now know and understand enough to help bring about a conscious, deliberate revolution in the way we govern ourselves. We can start the process by constituting a Global Climate Commons Trust [37].

    End Notes

    1. James Hansen Storms of my Grandchildren Bloomsbury 2009; Clive Hamilton Requiem for a Species Earthscan 2010. Both authors are very worried not only about the science but also about the failure of politicians to listen to climate scientists. The chapter in which Hamilton describes the meeting of scientists he attended in Oxford ends with a reference to the international event in Copenhagen in December of the same year: “Alas, three months later in the Danish capital those in command of the facts were drowned out by industry lobbyists and ignored by timorous politicians”.
    2. A classic framing of the problem is Andrew Hurrell’s question: “Can a fragmented and often highly conflictual political system made up of over 170 sovereign states and numerous other actors achieve the high (and historically unprecedented) levels of cooperation and policy coordination needed to manage environmental problems on a global scale?” See Bulkeley and Newell Governing Climate Change Routledge 2010 page 5, quoting Hurrell International Politics of the Environment Clarendon Press 1992.
    3. This was, for example, the expressly stated objective of the UNFCCC’s Executive Secretary Christiana Figueres, in her appeal to governments preparing for the Conference of the Parties held at Cancun at the end of 2010 http://unfccc.int/files/press/statements/application/pdf/ pre_cop16_address_cf.pdf.
    4. Bulkeley and Newell Governing Climate Change Routledge 2010 page 3.
    5. “the IPPC’s work has been heavily politicised from the very outset”: Bulkeley and Newell Governing Climate Change Routledge 2010 at page 27. See also Fred Pearce, The Climate
    Files: The battle for the truth about global warming
    , 2010, Guardian Books, London; and Halina Ward The Future of Democracy in the Face of Climate Change Foundation for Democracy and Sustainable Development.
    6. The incompetence of the nation state system has been described by both former politicians and academics: an example by a former British Foreign Secretary in a government led by Margaret Thatcher is Douglas Hurd’s The Search for Peace Warner Books 1997. Philip Allott’s The Health of Nations, Society and Law beyond the State Cambridge 2002 is the work of a Professor of International Public Law at the University of Cambridge who was formerly a Legal Counsellor in the British Foreign and Commonwealth Office.
    7. In Macrowikinomics, Portfolio 2010 Don Tapscott and Anthony D. Williams describe how thousands of groups around the world are using the power of collaborative innovation and open systems to do something about carbon emissions. In Climate Governance at the Crossroads, Oxford 2010 Matthew J Hoffman identifies and analyses 58 ‘experiments’ in climate governance, noting who initiated them and how they worked: market or regulatory, for mitigation or adaption, voluntary or mandatory; what activities were undertaken, for example: cataloging emissions, setting targets, education, monitoring, these being categorised
    as either planning, networking, direct action or oversight; the actors themselves being categorised as either networkers, infrastructure builders, voluntary actors or a mixture of all three. In a paper entitled The Transnational Regime Complex for Climate Change Kenneth
    W Abbott refers to the “proliferation of organisations, rules, implementation mechanisms, financial arrangements and operational activities” making up the regime complex for
    climate change governance, and maps these according to the identity of their constituent actors – from business firms to city governments to varied combinations of public and private stakeholders. see < ahref="http://ssrn.com/abstract=1813198">http://ssrn.com/abstract=1813198
    8. For a recent description of the current system of creating money see article by Darius Guppy at – http://www.independent.co.uk/news/business/comment/darius-guppy-growth–it-aint- happening-2295967.html;
    9. Madron and Jopling Gaian Democracies redefining globalisation and people-power Green Books 2003 pages 67-98.
    10. Sian Sullivan The environmentality of ‘Earth Incorporated’: on contemporary primitive accumulation and the financialisation of environmental conservation Paper presented at An Environmental History of Neoliberalism, Lund University, 6-8 May 2010.
    11. Most of the problems that governments have to deal with, including climate change, are what Prof Horst Rittel called ‘wicked problems’, meaning problems arising from non-linear complexities, such as ‘the drug problem’ or climate change, as opposed to ‘tame’ problems which arise from faults in linear systems, for example a machine. Command and control forms of governance are generally incapable of bringing about improvements in relation
    to this type of problem, as indeed the history of government in relation to climate change illustrates: such problems can only be addressed effectively through participative processes involving the ‘stakeholders” in the problem. see Madron and Jopling Gaian Democracies Green Books 2003 page 41.
    12. In Storms of my Grandchildren James Hansen expresses the frustration of top-scientists at not being listened to by governments dominated by corporate lobbyists. See also the Democracy Now interview with Hansen on 22 December 2009.
    13. For example Michael Zurn, Director at the Science Centre Berlin, anticipates growth in the demand for new types of supranational and transnational institutions: see Held and Koenig- Archibugi Eds. Global Governance and Public Accountability Blackwell 2005 chapter 7 Global Governance and Legitimacy Problems at page 146.
    14. Clive Archer, Research Professor at Manchester Metropolitan University sums up the emerging position: “A world in which mankind decides to confront universal problems by the use of effective international organisations will see a shift in the balance of political activity from the sovereign state to a number of strengthened globally functional (but also highly political) institutions”. International Organisations Routledge 2001. See also Phillippe Sands Principles of International Law, Cambridge 2003 2nd Ed pages 11-18; and Joseph A. Camilleri and Jim Falk Worlds in Transition Evolving Governance Across a Stressed Planet Edward Elgar 2009 pages 551-563. In The Health of Nations – Society and Law beyond the Nation State Cambridge 2002 Philip Allott describes the “revolution in our minds” needed to “leave us free to make and remake a human society which does not abolish our national societies but embraces and completes them”.
    15. EF Schumacher Small is Beautiful p 228.
    16. Stafford Beer Designing Freedom Wiley 1974, Diagnosing the System Malik 2008 and The Heart of Enterprise Malik 2008; for Jon Walker’s VSM Guide see http://www.esrad.org.uk/resources/vsmg_3/screen.php?page=preface
    17. Stafford Beer, Designing Freedom Wiley 1974
    18. In Global Governance and Legitimacy Problems (chapter 7 of Global Governance and Public Accountability Held and Koenig-Archibugi Eds.) page 162, Michael Zurn points out at that denationalised governance structures are both good for democracy and for giving back to national policy makers the capacity to deal effectively with de-nationalised economic structures.
    19. Joel Bakan Corporation Constable 2004; Marjorie Kelly The Divine Right of Capital. Berrett Koehler 2001
    20. Jeremy Leggett The Carbon War. Routledge 2001
    21. Steve Waddell, for example, has developed the concept of GANS, or Global Action Networks, illustrated by organisations like Transparency International and the Forest Stewardship Council. Waddell has identified five elements common to the strategies used by these networks. http://www.capacity.org/capacity/opencms/en/topics/multi-actor-engagement/ global-action-networks
    22. http://en.wikipedia.org/wiki/International_Committee_of_the_Red_Cross
    23. http://www.icc-cpi.int.
    24. www.environmentcourt.com.
    25. See www.ukela.org and www.yesmagazine.org/planet/advice-for-water-warriors.
    26. Compare the observations of the late Lord Bingham in The Rule of Law Allen Lane 2010 on the significance of general acceptance as the basis of international law (at p113) and of long acceptance as the basis of the principle of the sovereignty of Parliament in the United Kingdom (at p167).
    27. See the statement by Dee Hock at http://en.wikipedia.org/wiki/Dee_Hock#Quotes; and the role of System 5 in Stafford Beer’s VSM for which see [16] above
    28. http://pwccc.wordpress.com/2010/02/07/draft-universal-declaration-of-the-rights-of-mother- earth-2/
    29. In his Democracy Now interview in December 2009 James Hansen remarked “I’m actually quite pleased with what happened at Copenhagen, because now we have basically a blank slate”.
    30. Writers who have opened the eyes of this writer include Susan George, David Korten, John Pilger, Noam Chomsky, Melanie Klein, Michael Rowbotham, John McMurtry, Vandana Shiva, Mark Curtis and Eduardo Galeano.
    31. http://www.youtube.com/watch?v=N1fiubmOqH4]
    32. Elisabet Sahtouris video After Darwin Pt 2 http://www.youtube.com/watch?v=j_ immL2m1tg&feature=related
    33. Gunderson and Holling Eds Panarchy Island Press 2002
    34. See www.feasta.org and http://theautomaticearth.blogspot.com/
    35. William Graham Smith Creative Leaps Shape the World International Books 1997
    36. http://www.eckharttollecontactsuk.org/Biography.html
    37. For suggested first steps, and also a snapshot of what the world might look like in 2015 if a Global Climate Commons Trust had been established, see www.capandshare.org/climatecommonstrust


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