1. International law after COP21: The imperative for transformative change
International law has a history of mobilizing conceptual tropes for articulating its identity, rationale, and sense of purpose. It has, for instance, been described as a discourse and discipline ‘for’, ‘about’, ‘in’, and ‘of’ crisis.Footnote 1 As this eclectic linguistic offering suggests, the notion of ‘crisis’ performs multiple functions for international law. Understood as calamitous moments that deviate from the ordinary run of events, certain instances have selectively been labelled as crises, in particular moments which have significantly shaped the development of international legal norms and practice.Footnote 2 Moreover, notions of crisis, as inscribed in the disciplinary logic, sustain the managerialist and solutionist ethos that undergirds international law;Footnote 3 and the crisis trope has also been mobilized to articulate discontents with the international legal status quo.Footnote 4 The foregoing examples illustrate how the notion of ‘crisis’ has shaped disciplinary practice and why, by consequence, it warrants careful attention.
In the context of the unfolding climate crisis, perhaps paradoxically, an alternative notion has subversively been (re-)entering the conceptual repertoire of international law: the notion of ‘transformation’. Following the adoption of the Paris Agreement at the 21st Conference of the Parties to the UN Framework Convention on Climate Change (COP21) in 2015, international climate law scholars, policy professionals, and climate scientists have begun to describe the treaty as demanding transformative change.Footnote 5 In the words of the Intergovernmental Panel on Climate Change (IPCC), reaching the most ambitious temperature goal of the Paris Agreement – limiting global warming to 1.5°C –Footnote 6 would require ‘the world … to transform in a number of complex and connected ways’. Footnote 7 Building on this perspective, Christina Voigt argues that ‘[a]ddressing climate change … will require a global transformation’, pointing out that ‘[i]nternational law is an important tool in this transformation’ and that ‘international lawyers are the ones to apply it’.Footnote 8
Yet, eight years after the adoption of the Paris Agreement, it is evident that the global community is failing – by a long way – to act on the imperative for transformative change. There exists a gap between the de jure aspirations of the Paris Agreement – the goals articulated in Article 2(1) of the treaty, and the political agenda regarding its implementation. What the Agreement aims to achieve on paper does not match how implementation is being pursued in practice. Greenhouse gas emissions have reached new records, with the onset of the COVID-19 pandemic marking only a temporary dip in global emission trends;Footnote 9 people, places, and creatures across all regions are now undeniably suffering from climate impacts, with those least responsible and most vulnerable hit hardest;Footnote 10 and political willingness, or ‘ambition’ as it is couched in international climate policy speak, to bring about required change remains low – Nationally Determined Contributions (NDCs), climate pledges which Article 4(2) of the Paris Agreement requires governments to submit – remain ‘highly insufficient’ to meet the goals of the treaty.Footnote 11 Given these dire prospects, scientific doomsday scenarios which see the Earth irreversibly entering a ‘hothouse state’ Footnote 12 no longer appear as distant dystopias but emerge as real possibilities that warrant serious consideration.Footnote 13 The bottom line: instead of transformation, we see a continuation of business-as-usual. Carbon continues to drive the current socio-economic metabolism, with those responsible refusing to seriously deconstruct existing ways of doing things and setting in motion required processes of change.
If, despite these failures and on-going challenges, international law chooses to hold on to conceiving of the Paris Agreement as demanding transformative change, it will be necessary to ‘rethink which elements of the international legal system are fit for a transformative change, which need to be reformed – and which need to be discharged’.Footnote 14 This article contributes to this project by beginning to formulate an analytically robust and normatively meaningful concept of transformation. In so doing, it engages with the following questions: Is it possible to arrive at an analytically useful understanding of transformative change? What is at stake when invoking the notion of transformation to make sense of post-COP21 international (climate) law? And, which demands does the logic of transformation make on international law as a discipline? These questions are salient given that, to date, only few contributions have explored the role of law in transformation processes, primarily in the context of specific sectors and jurisdictions.Footnote 15 As a result, legal thinking and praxis lacks a holistic conceptual framework of transformation. Moreover, the normative implications of invoking the notion of transformation have not widely been discussed: ‘Transformation means different things to different people or groups, and it is not always clear what exactly needs to be transformed and why, whose interest these transformations serve, and what will be their consequences.’ Footnote 16 As international legal theory is only beginning to engage with the ways in which the climate crisis demands reconfiguration of its conceptual repertoires,Footnote 17 reflections on what the notion of transformation might mean for the disciplinary constitution of international law, its identity, rationale, and sense of purpose, are timely and warrant attention.
To be clear, this article does not engage with the question of what transformative international law may look like – in terms of normative substance, specific techniques that characterize international legal knowledge practices, and institutional and procedural infrastructures that support the working of the international legal machinery. Rather, the article focuses on the critical anterior question of what transformative change actually is. Thus, rather than seeing engagement with the notion of transformation as a matter of ideation or semantics, the position taken here is that it matters – in political and legal terms – how we make sense of it. Accordingly, before seeking to evaluate, assess, and suggest in what ways international law is, and how it should become, implicated in transformations, it is essential to first develop an understanding of what transformations entail, how they unfold, and who and what is involved. The hope is that an analytically robust and normatively meaningful notion of transformation can help to hone sensitivities for unmasking conceptual greenwashing and co-option and provide tools to call out endeavours that perpetuate the status quo under the guise of addressing the climate crisis. At the same time, the article offers some suggestions for how international law, as a discipline, may open up spaces that would allow to reflect on how it could further engage with the notion of transformation.
Making a critical conceptual intervention in emerging debates about international law following COP21, the article brings together strands of literature which, based on their own disciplinary presuppositions, have engaged with notions of transformation. These include human geography, sustainability governance, cultural anthropology, and political theory. Synthesizing insights from these literatures, the article begins by distinguishing the concept of transformation from related notions of ‘transition’ and ‘adaptation’ (Section 2), and it describes in what ways the transformation framing can help to make explicit what implementing the Paris Agreement will involve (Section 3). Section 4 then lays out the bulk of the article’s conceptual work. Offering an ontology of transformative change, it identifies three central features of transformation processes: (i) a heterogenous temporality that combines climate pasts, presents, and futures across social and geological time scales; (ii) the actualization of what is practically unworkable under current conditions, but which can already be imagined and prefigured; and (iii) distributed forms of engagement which navigate, on the one hand, dynamics of dialogue and collaboration and those of resistance and contestation, on the other. Having elaborated on three central features of transformation processes, Section 5 takes a critical turn and reflects on what is at stake when invoking the notion of transformation. It identifies unresolved tensions inherent in the transformation literatures and shows how international law might engage with them. Section 6 offers some concluding reflections on what the notion of transformation might mean for the discipline of international law.
2. What’s in a concept? On transformation and the current critical moment
At the beginning of the twentieth century, Karl Polanyi famously described the rise of the market economy, and the concomitant overturning and replacement of prevailing societal structures, institutions, ideas, and norms, as ‘the great transformation’.Footnote 18 More recently, automobilization has been described as a process of transformation that shifted societies to a new state of affairs.Footnote 19 These historical examples reveal a key characteristic of transformations: a movement beyond what currently exists and what is deemed to be possible under the status quo. In the context of climate change and sustainability governance, the concept of transformation is commonly used alongside notions of ‘adaptation’ and ‘transition’.Footnote 20 While these concepts are clearly related, in the sense that they describe change processes, each refers to a qualitatively different manifestation of change. Specifically, the notion of ‘adaptation’ refers to reactive adjustments which occur in response to changing conditions,Footnote 21 while the term ‘transition’ denotes a process of ‘going across’,Footnote 22 thus implying movement from one state or condition to another. Crucially, both adaptation and transition describe dynamics of change which, at least to some extent, seek to retain functional or structural features of the phenomenon that undergoes change. By contrast, the term ‘transformation’ describes changes in form that lead to profound shifts which affect the defining attributes of the ‘thing’ which is being transformed.Footnote 23 A metaphor which is regularly mobilized to illustrate the quality of transformative change is that of chrysalis. American feminist writer Rebecca Solnit offers a beautiful example:
When a caterpillar enters its chrysalis, it dissolves itself, quite literally, into liquid. In this state, what was a caterpillar and will be a butterfly is neither one nor the other, it’s a sort of living soup … that will catalyse its transformation into winged maturity.Footnote 24
Solnit describes a transformation that encompasses three distinct forms of existence: the caterpillar, the ‘living soup’, and the butterfly. By contrast, and drawing on a second comparison, the development of a female calf, to heifer, and finally cow is more adequately described as a transition. Here, the animal does not change its form but matures, thereby ‘going across’ – transitioning – from one state to the next. Over the course of its life the animal will continuously adapt to changing conditions, such as variations in water supply and temperature. These adaptive responses are adjustments which do not affect the form of the animal. Transformative change, by contrast, centrally implicates and reconfigures defining attributes of that which is being transformed: the appearance of something, its functioning, logic, capacities, and purpose. It, thus, is the quality of change which renders transformations transformative.
To develop a more nuanced conceptual understanding of transformations, then, it is necessary to engage with the phenomenon of change. How is change produced? What does it involve? Where does it come from, and what does it lead to? Drawing on Aristotle, Aquinas, and Marx, legal philosopher Hans Lindahl describes how theories of change centrally turn on the relation between the real and the possible.Footnote 25 He explains how, according to Greek thinking, change unfolds in the bringing into being of possibilities that present themselves ‘in the perceptual world as already actual or existent’.Footnote 26 From this perspective, possibilities, while not yet enacted, are already inherent in the status quo.Footnote 27 Contrasting Aristotle’s conception of change with Marxist thinking, Lindahl shows how the latter emphasizes human agency to de- and re-make the existing, in the sense that humans are seen to have the capacity to enact possibilities that are not contradicting the status quo: ‘in the face of an extant world rife with internal contradictions, human action can call into being a world that meets the condition of non-contradiction’.Footnote 28 Building on Lindahl’s theoretical work, this article posits that the concept of transformation radicalizes the relation between the real and the possible that is constitutive of modern understandings of change. Rather than seeking to actualize what is possible, transformative change renders real what appears impossible – what emerges as unworkable, impracticable, unrealistic, or futile under the status quo.Footnote 29 Crucially, however, in directing itself towards the actualization of what seems unworkable, transformations seek to render real what could logically be brought into being under a radically changed state of affairs.
Transformative change, thus, entails the bringing into being of what appears to be impossible under the status quo, but which would not be irrational or paradoxical if one assumed a different state of affairs. Returning to the metaphor of chrysalis: Looking at the caterpillar, the capacity to fly is a practical impossibility for the animal; yet, in its transformed state, it is entirely possible that the butterfly will fly. Flying, from the caterpillar’s point of view, is thus an impossible possibility; something impossible that is rendered possible through a change in form – a transformation. Unlike chrysalis, however, transformations are not innate, organic, or automatic processes. Rather, as the following sections detail, transformations are political projects that involve contestation, struggle, and resistance.
3. Implementing the Paris Agreement: A project of transformation?
In light of the foregoing reflections, it is possible to begin to see how the notion of transformation can help to make sense of what implementing the Paris Agreement will entail. Here, the emphasis on implementation is key. Whereas ahead of COP21 the imperative of the international climate regime had been to broker consensus on a new internationally binding climate instrument through inter-governmental negotiations, with the adoption of the Paris Agreement and the finalization of the ‘Paris Rulebook’Footnote 30 – the ensemble of COP decisions setting out the operational details of the treaty – central questions now concern how to work towards the goals of the Agreement. As Lavanya Rajamani and Daniel Bodansky already wrote in 2019:
With the adoption of most elements of the Paris Rulebook, the UN climate regime can now focus on the implementation of the Paris Agreement … [it] largely completes the negotiation process and allows a shift in focus from negotiation to implementation.Footnote 31
This section sets out how the notion of transformation captures this shift; specifically, how it – compared to earlier conceptual models – allows to put questions of implementation centre stage.
First, the transformation framing makes explicit that the mainstream of Western (‘developed’) societies cannot continue doing things in the ways they have become used to. There is both a need to stop certain activities, to un-learn and un-do, and a need to experiment with and give resonance to alternatives. While the former can be understood as the ‘negative’ side of transformation processes that repudiates, the latter implies ‘positive’, or generative, dynamics. By insisting on both dimensions, the notion of transformation makes clear that the climate crisis cannot be addressed solely by introducing new technologies and practices. It thus provides a powerful counterpoint to narratives that ‘green’ growth and technological innovation, in themselves, could provide adequate answers. Instead, it makes explicit that the mainstream of Western societies must wean itself from greenhouse gas emissions while giving resonance to alternative ideas.
Second, in addition to countering dangerous narratives of green growth and naïve beliefs in techno-fixes, the transformation framing is attuned to all three elements envisioned by Article 2(1) of the Paris Agreement: climate mitigation (attempts to reduce greenhouse gas emissions), climate adaptation (efforts to prepare for climate impacts), and climate finance (making available funding for mitigation and adaptation projects). Traditionally, it was the collective action paradigm which shaped understandings of climate change as a legal and political problem; in particular (but not exclusively) at the international level.Footnote 32 Applying an economic perspective and focusing on mitigation, the collective action paradigm conceptualizes the atmosphere and its absorptive capacity as ‘global public goods’ – ‘non-rivalrous’ and ‘non-excludable’ resources to which access cannot be restricted and which multiple actors use simultaneously.Footnote 33 Combined with insights from game theory, collective action foregrounds individual actors’ immediate and rational self-interests to keep emitting.Footnote 34 From this perspective, it is incentives to ‘free ride’ and delay mitigation action which emerge as central determinants of climate law and politics.Footnote 35 Applying the collective action paradigm, scholarship on international climate co-operation analysed law-making practices that enable inter-governmental consensus-building,Footnote 36 and proposed legal and institutional designs to apportion responsibility and ensure reciprocity among states.Footnote 37
While the collective action paradigm offered a suitable frame for understanding the complexities of inter-governmental negotiations relating to mitigation, climate adaptation and climate finance (as two further dimensions of the Paris Agreement) do not necessarily fit this frame. Dispersed and varying climate impacts mean that unilateral adaptation action is possible, effective, and necessary; in particular at national and local levels, where the needs, interests, and capacities of affected communities, places, and creatures can be more directly and adequately accounted for.Footnote 38 Moreover, in respect of finance, Article 2(1)(c) of the Paris Agreement envisages the ‘alignment’ of ‘finance flows’ with the mitigation and adaptation goals of the treaty. Importantly, the notion of ‘finance flow’ departs from the traditional concept of ‘climate finance’. Whereas the latter was primarily used to refer to financial support provided by developed to developing countries,Footnote 39 the notion of finance flow is broader. It encompasses not only public climate finance but also funds made available by private institutions, and it has been associated with the activities of regulators and other actors that shape financial markets.Footnote 40 Given its traditional focus on inter-governmental dynamics at the international level and the self-interests of states as rational actors, the collective action framing is unable to fully account for the Paris Agreement’s aspirations in respect of climate adaptation and finance. And while ideas of ‘polycentric governance’ extended the collective action paradigm to account for public and private actor involvement across multiple levels,Footnote 41 as Sections 4.2 and 4.3 (below) will show, the transformation framing more adequately acknowledges the central role of collectives in the political and social realm.Footnote 42
Third, the transformation framing highlights the temporal aspects of the climate crisis. As the IPCC has made undeniably clear, the next few years are decisive for actualizing the changes which may allow achieving the Paris Agreement goals by mid-century.Footnote 43 While the collective action paradigm cannot fully account for the urgency and the complex relationship between climate pasts, presents, and futures, the transformation framing complicates traditional understandings of time as a linear phenomenon and makes explicit the urgency of taking action. Simply put, efforts to reduce emissions, increase resilience, and provide finance can no longer be reduced to questions of self-interest, reciprocity, and trust that exist in a time vacuum. Rather, in this critical moment, the temporality of the climate crisis has to be explicitly acknowledged and accounted for.
Finally, the notion of transformation advocates, to borrow a phrase from cultural anthropologist Arjun Appadurai, an ‘ethics of possibility’ that can function as a normative guide.Footnote 44 On their own, traditional normative premises, specifically those relating to climate justice and economic efficiency, have proven insufficient.Footnote 45 The transformation framing is a potential candidate for filling this gap. It makes clear that an essential part of the global climate crisis response will be to cultivate alternative ways of imagining, thinking, feeling, acting, and relating with a view to rendering real impossible possibilities.
Evidently, the transformation framing is not the first attempt to re-conceptualize climate change. The climate crisis has been described as a decarbonization challenge which requires disrupting entrenched patterns of carbon lock-in across economic and political systems; as a distributive conflict in which vested interests inhibit progress and dictate winners and losers; and as a problem of co-operation which requires sustained and progressively intensifying collaboration between a diverse set of actors.Footnote 46 What sets the transformation framing apart from these proposals is its affective purchase. Instead of taking carbon infrastructures, vested interests, and abstractly conceptualized actor preferences as its starting points, the transformation framing describes the climate crisis as something that is lived through, which is continuously navigated, experienced, and felt. As political theorist Chantal Mouffe convincingly argues: ‘In order to get involved’ there is a need ‘to feel that real alternatives are at stake’.Footnote 47 In this sense, the notion of transformation provides a frame to hold on and return to when organizing thoughts and actions.
Despite its potential to conceptually capture what implementing the Paris Agreement entails, the notion of transformation needs to be approached with care. Having acquired multiple meanings in everyday life, Footnote 48 academia, Footnote 49 policymaking, Footnote 50 and media discourse, Footnote 51 we lack a robust conceptual understanding of what transformations are, how they unfold, and who and what they involve.Footnote 52 And whilst a diverse set of understandings can foster critical discussion, it is key to explicitly acknowledge and address the risks which arise when working with a fuzzy concept. For instance, the ambiguities around the meaning of transformation have led to the term being routinely invoked as a ‘catch all’ for change processes without clarifying what exactly renders them transformative. Critical sustainability scholars have rightly pointed out that this lack of analytical rigour leaves the notion of transformation vulnerable to being mobilized as a justification for business-as-usual.Footnote 53 To begin sketching the contours of a more robust and analytically useful understanding, the following section first identifies shared concerns which run through the multi-disciplinary field of transformation thinking before setting out three features that are central to transformations in climate crisis.
4. Towards an ontology of transformative change: Three central features
Transformation thinking has found entry in sustainability and global environmental governance research, the political sciences, sociology, and human geography. Across these disciplines, three main lines of thinking have been identified: systems-based, structural, and agency-focussed approaches.Footnote 54 Scholars mobilizing a systems-perspective describe transformation processes as ‘fundamental changes in structural, functional, relational and cognitive aspects of socio-technical-ecological systems that lead to new patterns of interactions and outcomes’.Footnote 55 Adopting a primarily descriptive-analytical focus, systems thinking seeks to explain how dynamics and dependencies between humans and technological networks and humans and ecological systems interact to produce patterns such that change is either triggered or hindered.Footnote 56 In contrast to systems perspectives, structural approaches focus on how societal institutions and economic and political paradigms hinder or support change.Footnote 57 Instead of analysing dynamics between interconnected elements of systems, structural perspectives take institutionalized worldviews, ideas, and narratives as their starting point. Finally, agency-based approaches, rather than focusing on institutions, reflect on the capacities of individuals and social collectives to engender change, including through resistance and activist strategies. Accordingly, agency-based approaches are less concerned with the role of ideas and organizations but with possibilities of emancipation.Footnote 58 Structural and agency-based approaches, however, tend to share sensibilities for issues of power, plurality, and justice – aspects which the more analytically orientated systems perspectives do not necessarily account for.Footnote 59
With each school of thought working with a different understanding of what it is that undergoes change, where transformations unfold, and how they occur, transformation thinking comprises a field of distinct, but nevertheless related, discourses that span disciplines. Each school of thought applies idiosyncratic theoretical frames and vocabularies and pursues distinct normative projects. Despite this eclecticism, it is possible to identify common ideas and shared concerns that run through the transformation literatures. First, all approaches describe transformations as temporal phenomena. Transformations are generally understood as processes which take place over time and unfold with varying speed. For instance, transformation models are often concerned with ‘phases’ or ‘steps’, describe ‘pathways’ and ‘cycles’ of activity, and are seen to involve forward- as well as backward-looking dynamics.Footnote 60 Second, all three perspectives identify change which fundamentally challenges and re-works the status quo as a central feature of transformation processes. For example, socio-ecological resilience scholars describe ‘transformability’ as the ‘capacity to create a fundamentally new system when ecological, economic, or social (including political) conditions make the existing system untenable’.Footnote 61 Meanwhile, agency based and structural approaches describe possibilities for resisting and contesting incumbent power structures, ideas, and interests that perpetuate the status quo.Footnote 62 Finally, all three strands of transformation thinking describe change processes which engage a multiplicity of actors from across various societal domains and scales. For instance, progressive perspectives, focusing on individual and collective agency, argue that transformations rely on experiments in societal niches and margins, while simultaneously depending on collaboration with the state and social institutions.Footnote 63 Using different nomenclature, researchers who apply a systems perspective make similar arguments. Here, it is ‘top down’ steering, which allows change to diffuse, while ‘bottom-up’ action is seen to harness the innovative potential of social experiments.Footnote 64 The following sub-sections elaborate on each of these three features in turn.
4.1 Transformative temporality: Temporal dislocations
The first central feature of transformations is that they are temporal phenomena. Climate policy discourse tends to portray transformations as change processes that involve a sequence of steps or stages which occur in a particular order. For instance, in its 2018 Special Report on ‘Global Warming of 1.5°C’, the IPCC described four emission reduction ‘pathways’ – model mitigation trajectories for limiting global warming to 1.5°C until 2050.Footnote 65 Other metaphors used in climate policy discourse refer to ‘milestones’ and a ‘race’.Footnote 66 Connoting travel across time and space, these metaphors imply a continuous and linear forward-reaching from the ‘here and now’ towards interim, and eventually, end goals. Such spatial-temporal imaginaries are problematic. They suggest that transformative change unfolds along a single temporal axis as a one-directional and incremental movement to achieve preferred future states of affairs. Their main concern are forward-looking dynamics that seemingly have the capacity to create the ‘what-is-yet-to-come’. However, as anthropologist Elizabeth Povinelli powerfully argues, the unfolding climate crisis is deeply rooted in our past. To use Povinelli’s term, climate change is ‘ancestral’ in the sense that it keeps ‘arriving out of the ground of colonialism and racism rather than emerging over the horizon of liberal progress’.Footnote 67 As such, there are no ‘empty’ futures ‘just waiting to be filled’.Footnote 68
While aiming to highlight possibilities for engagement and action in the present,Footnote 69 metaphors employed in climate policy discourse convey an overly simplified understanding of the temporality of the climate crisis. Aligning with conceptions of time as the technical horizon for linear human progress, they fail to account for dependencies between pasts, presents, and futures, and the urgency, discontinuities, and uncertainties that are involved in navigating changing climatic conditions.Footnote 70 Sheila Jasanoff notes how the climate crisis leads to ‘scalar dislocations’, including in ‘widely held prior conceptions of … time’.Footnote 71 As such, when describing the temporality of transformations in climate crisis we need to complicate our understanding of time. Instead of conceiving of transformative temporality as an orderly arranged sequence of steps, it is helpful to work with heterogenous conceptions of time. Accordingly, transformative temporality emerges as a ‘heterochrony’ – something that is ‘temporally dislocated against itself’.Footnote 72 To illustrate what heterogenous temporality involves, two alternative metaphors are useful: that of a braided thread which intricately integrates multiple strands of fibre, and that of a telescope tube which consists of connected elements that can be collapsed into each other. Like a braided thread, transformative temporality encompasses interlaced strands of time; and, akin to the physical structure of a telescope tube, climate pasts, climate presents, and climate futures slide into each other.
Regarding the former, in climate crisis, transformations require us to consider, and position into dialogue, social and geological time scales. Here, the notion of braiding helps to explicate that transformations unfold across ‘Earth history’, the tens of millions of years and geological epochs that mark phases in the evolution of our planet, and ‘world history’, the last hundreds of years of human activity.Footnote 73 It is in this sense that we are required to find ways to knot together human and other-than-human timescales.Footnote 74 In addition, it is necessary to acknowledge the co-constitutive assembling of climate pasts, presents, and futures. This requires an exercise of ‘temporal telescopy’ to conceive of a ‘layered temporal heterogeneity’ that combines pasts, presents, and futures.Footnote 75 Instead of sequential conceptions of time, transformative temporal dimensions slide into each other and become mutually constitutive: climate futures are already existing (or ‘antecedent’) in pasts and presents; and pasts and presents are spilling into times to come.Footnote 76 What matters – simultaneously – are ‘the emissions from yesterday, today and those released in the next few years’.Footnote 77 Comparing transformative temporality to the object of a telescope thus fundamentally challenges conceptions of the past as that what is done and complete (the ‘there and then’), and understandings of the future as a potpourri of opportunities that emerge on the temporal horizon. Rather, as temporal phenomena, transformations require acknowledgement that pasts, presents, and futures interact across social and geological time scales.
4.2 Transformative change: Actualizing impossible possibilities
The second central feature of transformations is the rendering real of what appears to be impossible under the status quo, but which could arguably happen in a changed state of affairs. Accordingly, transformative thinking and doing does not take the currently existing as its point of reference. Instead, it is alternatives that animate transformative dynamics. Such alternatives emerge once we acknowledge that there are other ways of perceiving and making sense of what we think we know. What is needed, thus, are modes of imagining that free individuals and collectives from the familiar and tacitly repeated. Examples include, for instance, thinking antithetically or deliberately adopting a playful mode. Such practices can facilitate engagement with perspectives and ideas that deviate from and disrupt conventional understandings and habitual starting points.Footnote 78 To quote Michel Foucault, ‘… from the moment one begins to be unable, any longer, to think things as one usually thinks them, transformation becomes simultaneously very urgent, very difficult, and altogether possible’.Footnote 79 It is in this sense that the imagination can open up, and foreclose, opportunities for making material interventions, thus affecting possibilities to respond to climate change.Footnote 80 At the individual level, imagining involves ‘flights of awareness in which the mind and heart take license to leave the seeming “realities” and “feasibilities” that are supposed to frame experience’.Footnote 81 At the collective level, imagining emerges as a social process that sustains worldviews and behaviours which constitute communal life.Footnote 82
Working across international relations and cognitive theory, Manjana Milkoreit suggests the phrase ‘socio-climatic imaginaries’ to describe collective imagining in times of climate crisis.Footnote 83 Milkoreit argues that it is these imaginaries which provide ‘the mental source material and motivation for creating change’.Footnote 84 Importantly, however, while the imagination has the capacity to extend ‘mental representations’ to situations that are not present,Footnote 85 it can become captured by existing structures, discourses, and ideas. An example on point is the notion of ‘decarbonization’. Conceived as an imaginary, it fails to create the space for envisioning alternative ways of living, instead perpetuating the belief in techno-fixes that would allow to continue with business-as-usual.Footnote 86 Rather than radically challenging the fetishization of overconsumption and overproduction, the notion of decarbonization suggests that it would be possible to continue with current lifestyles and economic logics by simply introducing ‘green’ and more efficient technologies. In this sense, it holds on to, and reinscribes, existing socio-climatic imaginaries. It does not invite engagement with the question what else could become available if things were different. Transformative imaginaries, by contrast, are not merely ‘detours’ on the ‘terrain of reality’. Rather, imaginaries in the transformative sense ‘depart from the ground of the real’, ‘move in the air’, and allow to think the unthinkable.Footnote 87 They depart from what is currently observable and facilitate ‘attempts at thinking other thoughts for other world constructions’.Footnote 88 In this sense, transformative imaginaries critically engage with the cognitive horizons which are produced by learnt ways of knowing and doing and scope how things could be otherwise.
On a practical level, transformative imaginaries situate and relate selves, as agents, to climate pasts, presents, and futures. Such dynamics of situating and relating are observable in prefigurative projects. Davina Cooper, whose work combines legal conceptualization and political theory, explains how prefigurative projects ‘perform regular daily life … in a radically different way’ and create ‘the change they wish to encounter’.Footnote 89 In this sense, prefiguration involves acting ‘as if’ preferred conditions were still, or already, in place, thus undoing the distinction between what is and what could be or have been.Footnote 90 By rehearsing such alternatives, prefigurative projects disrupt, while, at the same time, pursuing alternative pathways. In so doing, prefiguration fuses dis- and re-assembling, un- and re-making. Stepping back from existing ways of doing things, prefiguration immanently critiques (de-configures) the status quo, and it is in this opening that the status quo can be re-configured such that alternatives, which appear impossible, emerge as possibilities. Given that transformative dynamics always entail de- and re-formation,Footnote 91 prefigurative projects take up the ‘politics of disturbance’ that unsettles ‘dominant procedures and disrupt the existing arrangements’ while insisting on constructing alternatives.Footnote 92 Researchers have investigated prefigurative action across diverse contexts, including in protest and activist movements, communal ways of living, children’s play, and urban gardening.Footnote 93 The transformative potential of these grassroots and counter-initiatives lies in rendering real constructions of social life which demonstrate that, after all, thinking and doing things differently is possible – what seems impossible under a given state of affairs can be rendered possible by de- and re-configuring the existing. Prefiguration is thus a way to embed transformative imaginaries into practice: making the imagined real entails enacting it.
4.3 Transformative action: Distributed engagement
Finally, in the context of democratic law- and policy-making, transformations are not confined to specific contexts or groups of actors, but involve forms of engagement that are distributed across diverse constituencies. From a governance perspective, collaborative dynamics between multiple actors emerge as central to change processes. Interdisciplinary sustainability scholar Felix Ekardt, for instance, describes dynamics between governments, citizens, businesses, and consumers as ‘vicious circles of inaction’.Footnote 94 He argues that as one group resists change, others are discouraged from moving beyond the status quo as well. Take, for example, businesses and citizens. In the absence of legal and regulatory frameworks that prescribe change and establish a level playing-field, these groups are less likely to adopt climate-friendly practices at the scale required; conversely, in light of perceived political and economic risks, political decision-makers might refrain from engaging in transformative policy- and law-making in the first place. Giving this argument a positive spin, regulatory scholar Neil Gunningham argues that when a ‘critical mass of actors’, such as ‘governments, businesses, trade unions, international organisations and others’, become aligned and unite behind ideas, possibilities to achieve change become available.Footnote 95 According to these accounts, what emerge as key features of transformation processes are coalition building, dialogue, and co-operation: across local, national, regional, and global scales; between public and private spheres; and among multiple societal domains.
While pragmatically highlighting collaborative dynamics as levers of transformation processes, however desirable these may be in practice, the governance and regulatory perspectives described above evade and underplay the conflictual nature of transformations. Struggles over representation, and ultimately distribution, are inherent in transformation processes. While some strands of transformation thinking, in particular systems perspectives, tend to describe transformations as apolitical, change processes are likely to be fraught with disagreement, contestation, obfuscation, and withdrawal.Footnote 96 Whose view counts as realistic, and what is regarded as outrightly naïve? How are risks going to be allocated? Who is to bear the brunt of the change, and who is to benefit? Who will pay, who will not pay, and who will receive support?
Instead of glossing over struggles, conflicts, and difference that are inherent in transformation processes, the political theory of Chantal Mouffe offers a way to deal with division by putting it front and centre. Mouffe distinguishes between two types of conflictual dynamics: ‘antagonistic’ and ‘agonistic’ conflict. While the former refers to ‘struggles between enemies’ that foreclose the possibility of political engagement, the latter denotes ‘struggles between adversaries’ who ‘recognize the legitimacy of opposing demands’.Footnote 97 According to Mouffe, instead of striving for consensus and homogeneity, what is needed are designs that allow conflicts to take an agonistic form by ‘hold[ing] in tension what they separate’.Footnote 98 Such modalities would, for instance, recognize and give resonance to varying capacities, needs, interests, and points of view while allowing demands of particular groups to find resonance with other constituencies, thus building synergies across difference. Distributed engagement, in other words, eschews the imaginary of a totality of a diversified discourse, instead envisaging a diversity of diverging, and therefore conflictual, discourses that require negotiation – articulation and organization – across difference.Footnote 99
5. Unresolved tensions in transformation thinking: Entry points for international law
Having identified three central features of transformations, this section takes a critical turn and asks: What is at stake when conceiving of the Paris Agreement as demanding transformative change? Specifically, what comes into view, and what is not seen, when invoking the notion of transformation? Which narratives, assumptions, and biases does the transformation framing uncritically reproduce? Engaging with these questions, this section identifies unresolved tensions in transformation thinking and shows in what ways they connect to international law and legal scholarship. In so doing, it demonstrates how the identified tensions can serve as entry points for international law to meaningfully engage with the notion of transformation.
The first tension running through the transformation literatures relates to understandings of agency, capacity, and responsibility. In climate crisis, are transformations deliberately triggered, carefully planned, and strategically managed processes? Or do they comprise emergent and unruly dynamics that lead to unknown and contested outcomes? The former perspective implies an understanding of climate change as a ‘problem’ that can be ‘fixed’ through purposively managed change processes which work towards pre-defined goals in a progression of modulated steps or stages.Footnote 100 The latter conceives transformative dynamics primarily as reactions to emergent disruptions in socio-ecological systems.Footnote 101 Clearly, both accounts are reductive. While one reproduces the narrative of humans and social institutions as being able to master nature, the other portrays humans as reactive agents who are subjected to transcendental planetary forces.Footnote 102
Another way of approaching this tension takes time into account: Given projected emission trajectories and the rigidity of existing structures and systems, is it, in fact, not already too late for transformative change? Are we passengers of a ship who pretend there was still time to avoid collision, when in fact it is already too late to change course? According to the IPCC, there is still time, albeit alarmingly little, to turn the corner, avoid head-on collision and, perhaps, get away with a major graze in the hull. Most recent scientific models show that without speculative reliance on negative emission technologies, reaching the goals of the Paris Agreement will require global greenhouse gas emissions to peak, at the very latest, by 2025. In the following decades, ‘rapid’, ‘deep’, and ‘sustained’ greenhouse gas emission reductions are needed to stay on course and reach ‘net zero’ by mid-century.Footnote 103 According to this narrative, what we have in front of us are two years to turn the tide, and two more decades of continuous work to stay on a radically changed course. What is missing from this account, however, is acknowledgement that even if we fail to take action within the identified window of opportunity, we cannot absolve ourselves from responsibility. As human geographer Leslie Head writes, ‘[w]e do not yet know how much transformation will proceed deliberately and how much will be forced on us, but it is likely that we will be forced as much as governed’.Footnote 104
What emerges from the foregoing discussion is that agency in climate crisis cannot be grasped in terms of an ‘all or nothing’ approach; in the sense that there is either full or no control; that there still is time or that it is already too late; that the project is either to make the transformation or accept climate disaster as the only remaining option. Instead, everything is continuously kept in play; things continuously remain at stake. In this sense, notions of ‘living with’ and ‘living in’ climate crisis emerge as entry points for developing a more nuanced perspective. Suggesting strategies for ‘learning to live with climate change’, multidisciplinary climate scholar Blanche Verlie explains that this does not mean resigning or giving up. Rather, living with or living in climate crisis is about ‘engaging with and facing up to the horrific realities of climate change and striving to make things otherwise despite knowing that we may not be able to “save the world”’.Footnote 105
What do notions of living with, or living in, climate crisis mean for international law? Arguably, their implications could be profound. For one, they require problematization of the extent to which law actually has the capacity to govern in climate crisis. The term ‘governance’ – while having multiple meanings – is commonly associated with modalities of institutionalized steering that pre-suppose agency to intervene and produce change.Footnote 106 Critically reviewing attempts to govern climate change at the international level, Stephen Humphreys argues that ‘[a]ny claim to “governance” must presumably make an initial assumption that the thing to be governed may become a viable object of law – that it is, in short, governable’.Footnote 107 Meanwhile, human geographer Mike Hulme foregrounds the fundamentally dispersed and systemic nature of climate change as an object of governance. Hulme argues that governing climate change implies ‘governing the full range of human activities and technologies … which emit greenhouse gases and other particulates into the atmosphere’.Footnote 108 How might international law be able to meaningfully govern this extensive range of activities and technologies? One option could be to pursue sectoral international agreements, which would, for instance, ban the production and/or use of all or specific fossil fuels and their financing.Footnote 109 Alternatively, existing mechanisms in the international climate regime could be relied upon to bring certain sectors into the focus of international mitigation efforts. Governments could, for example, agree to detail national fossil fuel phase-out plans and targets in their NDCs.Footnote 110 Needless to say that the current geopolitical climate makes the adoption of such measures unlikely. Yet, these options present themselves as precisely those kind of impossible possibilities that transformative change demands: they appear impossible under the status quo but could arguably happen in a changed political climate.
Building on the foregoing, if international law cannot provide simple ‘fixes’ for climate change, then it ought at least to enable just living in climate crisis. In this context, the notion of ‘climate reparations’ is gaining traction in international legal discourse.Footnote 111 Sarah Riley Case, for instance, describes the transformative potential of reparative actions as opening up possibilities for moving away: ‘from accumulative ways of life that spread from Europe to the world, structuring the present reality. “Reparations” also refers to immediate justices that meet the demands of those who are harmed, because this prefigures the horizon of transformation by disrupting imperialism.’Footnote 112 Recent developments in the international climate regime signal tentative movement, even if, given the limitations of the inter-governmental process, they remain dramatically insufficient. COP27 and COP28, for instance, explicitly highlighted the role of Multilateral Development Banks and international financial institutions, calling not only for more climate finance, but explicitly articulating the need to ‘reform’ institutional ‘practices and priorities’ and define new ‘operational models’.Footnote 113 These calls for reform of powerful financial actors have been described as breaking ‘new ground’.Footnote 114
The background to this shift in gear is what has become known as the ‘Bridgetown Agenda’ – a strategically placed and carefully orchestrated diplomatic initiative that marries the climate and development agendas.Footnote 115 At COP27, Barbados Prime Minister Mia Mottley, who spearheaded the initiative, demanded that the needs of climate vulnerable and developing countries be at the heart of a ‘new, global, financial architecture’ that would overcome legacies of colonialism and require those profiting from climate harming activities to pay for reparations.Footnote 116 Calling, amongst other things, for ‘reconstruction grants for any country just imperilled by a climate disaster’ and an alleviation of sovereign debt for vulnerable countries, the Bridgetown Agenda rings true with initiatives on loss and damage that have emerged in recent years. For example, new fora, including the Santiago Network and the Glasgow Dialogue, have been set up to discuss issues relating to technical and financial assistance.Footnote 117 Most recently, the possibility of a dedicated international financial mechanism for loss and damage finally materialized.Footnote 118
These developments within the international climate regime dovetail with initiatives that have tabled the issue of climate reparations within the broader UN system. These include, amongst others, the recently adopted formal request for an advisory opinion from the International Court of Justice on the obligations of states in respect of climate change. Notably, the request explicitly refers to the issue of ‘legal consequences’ for causing significant harm to ‘small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change’.Footnote 119 In a more radical register, UN Special Rapporteur Tendayi Achiume voiced objections to the international legal canon as follows: ‘To the extent that contemporary international legal principles present barriers to historical responsibility for climate change, UN member states must decolonize … law in a manner that makes it capable of guaranteeing genuine equality and self-determination for all peoples.’Footnote 120 International law’s (in)capacity to address climate injustices and provide meaningful reparation for harms suffered, thus, emerges as another entry point for how the discipline may engage with the imperative for transformative change.
Questions about agency, capacity, and responsibility to govern in climate crisis provocatively lay bare another unresolved tension that runs through the transformation literature. Returning to the statement that ‘we do not yet know how much transformation will proceed deliberately and how much will be forced on us’,Footnote 121 the question arises who is the ‘we’ that participates in processes of transformative change. Who contributes, and who counts, in transformative projects? Traditionally, transformation thinking has not explicitly problematized who forms part of transformative projects. It thus sidestepped the question of how the ‘we’ that participates in transformations is constituted. Tacitly re-inscribing the modern notion of ‘we’, its foundational fiction of individualism and its exclusionary and extractive claims to universality, it risks perpetuating the illusion that humans were separate from the milieus which make life possible, without adequately accounting for dependencies and continuities between human and other-than-human worlds. What is at stake here, thus, is a politics of in- and exclusion.Footnote 122 As Chantal Mouffe argues, when envisaging how to act collectively ‘the moment of decision cannot be avoided, and this implies the establishment of frontiers, the determination of a space of inclusion/exclusion’.Footnote 123
The climate crisis, as a symptom of what is commonly (though not uncontroversially) referred to as the ‘Anthropocene’,Footnote 124 presents a radical challenge to such boundary drawing. It calls into question fundamental categories of ‘humans’ and ‘nature’, and relations between them, which have been taken for granted in modern Western thinking, including in a critical mass of legal theory.Footnote 125 As ecofeminist philosopher Donna Haraway explains, ‘human beings are with and of the Earth’: humans emerge as one species amongst many, bodies amongst other bodies, always embedded in, dependent on, and continuous with a plurality of living and non-living communities.Footnote 126 Importantly, the notion of the human itself cannot be taken as a monolithic category. When used in absolute and undifferentiated terms, it works to reinscribe structures of domination that exclude (more-than-)human alterities.Footnote 127 The unsettling of established conceptual categories evidences how the ‘we’ that is involved in transformative projects in the face of climate change escapes singularization, isolation, and stabilization.
If fundamental categories of ‘human’ and ‘nature’ no longer hold, how may it be possible to formulate rights and obligations in a legal register?Footnote 128 The concept of ‘rights of nature’ has established itself in various domestic contexts and academic discourse as a ‘disruptive legal category’,Footnote 129 and related notions are beginning to find traction in international law.Footnote 130 While seemingly progressively moving beyond the anthropocentrism implied by human rights, granting rights to non-human entities risks extending presuppositions of singularity, boundedness, and stability, and uncritically reproduces the colonial and gendered underpinnings of rights as a political and legal institution.Footnote 131 As Angela Last perfectly put it, many ‘attempts to privilege the nonhuman reaffirm human privileges’.Footnote 132 One further critical entry point for engaging with the imperative for transformative change, thus, lies in continuing work that seeks to deconstruct and develop alternatives to existing and emerging repertoires of legal subjectivity.Footnote 133
A final unresolved tension that runs through transformation thinking relates to its ideological underpinnings. Conceptually speaking, transformations comprise positive and negative elements (see Section 3). While the former encompasses narratives of innovation, growth, and progress, the latter sides with more humble conceptions of change that emphasize un-learning and un-doing, and which take seriously broader critiques of consumerism and the capitalist economic logic. While certain strands of transformation thinking, primarily those adopting a systems-approach, have focused on developing strategies for managing technological and societal innovation,Footnote 134 others have focused on transformative possibilities that arise from unsettling structures of power and dominant economic paradigms.Footnote 135 This tension relating to the ideological underpinnings that shape conceptions of transformative change resonates with on-going debates in international law. Critiques of the principle of sustainable development as articulated in the Rio Declaration on Environment and Development,Footnote 136 for instance, epitomize international law’s futile struggle to reconcile economic growth, human wellbeing, social justice, and environmental protection.Footnote 137 Nevertheless, 20 years after the initial Rio Declaration, the Rio +20 conference, now under the label of ‘green growth’, re-articulated sustainable development as a cornerstone of multilateral co-operation.Footnote 138 The unresolved tension between the objective to protect the environment, on the one hand, and the logic of economic expansion, on the other, have been aptly described as a ‘disciplinary double-mindedness’:Footnote 139 Pretending that the environment and the economy were independent of each other, international law has turned landscapes into ‘sovereign’ ‘territories’Footnote 140 and ecosystems into ‘property’ and ‘resources’.Footnote 141
A discursive technique that sustains this ideological premise of international law is the ‘ambition narrative’.Footnote 142 Underpinning, for example, the UN’s 2030 AgendaFootnote 143 and the Paris Agreement itself, the notion of ambition sides with a conception of change that is based on progress and continuous improvement. It portrays ‘the international legal landscape to be reliant on a process of constant betterment’.Footnote 144 Here, the negative side of transformations, in particular notions of un-learning and un-doing, become marginalized. Instead, the gaze of international law remains firmly fixed on the promise of a better future that is based on international progress, social improvement, economic growth, and technological innovation.Footnote 145 What the examples of sustainable development and ambition bring to the fore is how international law’s ideological underpinnings, as manifest in the conceptual and discursive canon that sustains the discipline, mirror unresolved tensions in transformation thinking. The final, and perhaps most fundamental, entry point for international law to engage with transformation thinking, thus, lies in radically de- and re-constructing ‘disciplinary tenets … in directions that radically transform the nature of the discipline’.Footnote 146
6. International law: A discipline of/in transformation?
This article critically engaged with the notion of ‘transformation’ as a paradigm of international (climate) law that has emerged since the adoption of the Paris Agreement at COP21. Taking seriously problematic tendencies to mobilize the notion of transformation as a ‘buzzword’ with little analytical import,Footnote 147 the article developed an ontology of transformative change, identifying transformative temporality, the actualization of impossible possibilities, and distributed engagement as three central features of transformation processes. Having offered a nuanced conceptual understanding of what transformative change entails, the article then took a critical look at the notion of transformation. It brought to the fore tensions that remain unresolved in the transformation literatures and linked them to international law. In so doing, it identified entry points for how international law could further engage with the imperative for transformative change in a meaningful way. These build on emerging discourses in international law scholarship and include: exploring possibilities of sectoral approaches to achieving greenhouse gas emission reductions; acknowledging historical responsibility for climate injustices and providing meaningful reparations for climate harms; reconfiguring notions of ‘subjectivity’ and ‘collectivity’ in international legal discourse; and critically engaging with central conceptual tenets of international law.
What emerges from the foregoing is that the transformative project envisioned by the Paris Agreement impels legal scholars to understand international law as centrally implicated in transformation processes. To unpack this further, let us circle back to the introductory section of the article and connect the notion of ‘transformation’ to that of ‘crisis’. Arguably, a focus on crises can lead to a ‘truncated and selective reading of events’;Footnote 148 and notions of crisis may be interpreted to imply ‘that we are simply faced with a perilous turning-point of modernity, a brief trial with an imminent outcome, or even an opportunity’.Footnote 149 These concerns rightly caution against using the notion of crisis as a catchword. However, when taken seriously, understanding the present moment as critical has analytical and normative implications. As French philosopher Michael Serres writes:
The term crisis … describes the state of an organism confronting a growing … disease to the point where its existence is endangered … In such a situation, appropriately called critical, the body automatically makes a decision: beyond the limit it has reached, it either dies or takes an entirely different path. It is a fork in the road and also a choice. If it survives the crisis, it goes a different way and recovers … Recovery implies a new state … If we are really going through a crisis … then a return backwards is no good.Footnote 150
In this quote, it is the last two sentences which are key. They explicate that, in crisis, the imperative is to change – to come up with something new. The concept of transformation developed in this article helps to clarify what kind of change is required; namely, change which directs itself towards what seems impossible under the status quo, but which could arguably happen under a radically different state of affairs.
At a theoretical level, this re-opens questions about international law’s capacity to induce and support change.Footnote 151 Is (international) law’s function really confined to stabilizing expectations by providing the means to insist on the normatively articulated (even in cases when expectations of compliance have been disappointed);Footnote 152 or can it also encourage and assist emergent ideas and practices that run up against the status quo? Re-articulating this question in a more provocative register one may ask: If transformations continuously keep everything in play, what is the capacity of law to intervene? In transformations, can law hold on to its promise to steer, regulate, reconcile, and co-ordinate? Or does law need to be come humbler, in the sense that it may need to nuance its promise, and claim, of having a ‘world-making role’?Footnote 153
In processes of change, law is torn between its dual functions of, on the one hand, regulating and, on the other hand, constituting collective life.Footnote 154 As a tool of regulation, law reconstructs pasts in the present to affirm existing norms in the now and project into the future. At the core, thus, law subscribes to a conservative logic. It emerges as an agent of stability. At the same time, however, law is a central conspirator in the construction of lives. It encodes what is possible at any given point in time, for instance in terms of what it means to act politically, which forms of labour and value are recognized, and what kinds of social relations can emerge or not.Footnote 155 Assigning meaning, describing relations, creating institutions, recording values, and encoding behaviour, law links reality to future states of affairs. Law, in other words, emerges as ‘a system of tension or a bridge linking a concept of reality to an imagined alternative’.Footnote 156
In addition to these theoretical issues, the imperative for transformative change opens up questions about the nature, practice and, more broadly, the discipline of international law, in terms of its identity, rationale, and sense of purpose. Specifically, it challenges international law scholarship to think about its im/possibilities – what international law could, and what it should, become in climate crisis.Footnote 157 In this way, the transformation framing pushes the discipline out of learnt ways of engaging with and thinking about law, foregrounding aspects which hitherto have not been regarded as relevant. As such, while international law to some extent continues to perform its functions as an instrument or tool for navigating changing climatic conditions, the imperative for transformative change brings to the fore profound questions about what it means to be, to think about, and engage with law in climate crisis. We already see how technical aspects of international legal forms and practices are starting to be reconfigured. For instance, the Paris Agreement does not limit itself to setting out obligations between states. Rather, it relies on ‘productive links’ between international procedural obligations, strong climate laws and policies at the national level, and contributions from sub-national and private sector actors.Footnote 158 Unsettling established presuppositions about the purpose and function of international (climate) law – what it does, how it works, and who it addresses – the Paris Agreement evidences how the discipline is not only one of, but one in, transformation.
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