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Abstract:
Remarks at a workshop on "Legitimacy in International Law" held in June 2006 at the Max Planck Institute for Comparative Public Law and International Law. The paper analyzes the relationship of legitimacy to legality and to self-interest; argues that much of the writing on legitimacy fails to distinguish adequately between normative and sociological legitimacy; observes that legitimacy is among the class of concepts that we can define with more confidence negatively than positively; and recommends analyzing the problem of legitimacy in a more differentiated, contextual way, focusing on how much authority an institution exercises, the nature of the issues it exercises authority over, and the type of authority it exercises.

Legitimacy, International Law

Abstract:
How and why do international environmental norms arise? In what ways (and to what extent) do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are the fundamental questions I examine in a new book forthcoming this fall from Harvard University Press entitled THE ART AND CRAFT OF INTERNATIONAL ENVIRONMENTAL LAW.

Although international environmental law is a comparatively new field, its rules and standards now fill books—and not short books either. Not so long ago, international environmental law was considered a narrow specialty within the general field of international law. But today it has become a field in its own right, with sub-specialties on wildlife law, marine pollution, freshwater resources, climate change, sustainable development, and chemicals, among others. The Art and Craft focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself. Process issues have received increased attention in recent years but have not yet had a book-length treatment. This work aims to fill that gap, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.

“What Is International Environmental Law?” is the introductory chapter and gives a flavor of the approach taken by the book as a whole. Using an encounter I once had with an NGO fundraiser as a jumping off point, the chapter explores the scope of international environmental law as well three different perspectives on its study. The goal is to provide general readers and specialists alike with a real-world perspective on how international environmental works—and sometimes doesn’t work.

International law, international environmental law

Abstract:
The problem of legitimacy is one of the oldest in political theory. What gives some people the right to govern others? Conversely, apart from fear of punishment, why should those subject to authority obey? These questions have been central preoccupations of philosophers since the time of Plato. Traditionally, the weakness of international institutions made legitimacy a less pressing issue in international law than in domestic law. But as international institutions develop with the power to bind non-consenting states, this has begun to prompt concern about the problem of legitimacy. In recent years, legitimacy has begun to emerge as an issue not only in international law generally, but in international environmental law more specifically. The growing severity and complexity of international environmental problems has increased the need for institutions with greater legislative, administrative and adjudicatory authority. This article surveys the various potential bases of legitimacy of international environmental law, including state consent, democratic decisionmaking, participation, and expertise. It argues that international environmental law faces a dilemma. On the one hand, effectively addressing problems will require more authoritative systems of international governance, which do not depend on consensus among states. But, without a firmer basis of legitimacy, states will be unwilling to entrust international environmental institutions with the necessary decision-making authority.

International law, environment, legitimacy

Abstract:
If international environmental law were to develop Ten Commandments, the precautionary principle would be near the top of the list. Like the proscriptions against killing and theft, the precautionary principle is difficult to argue with. But when we try to pin down exactly what the precautionary principle means, matters become more difficult. Behind the simple allure of the precautionary principle lie a host of difficult issues. When is precaution warranted? In what ways should we be cautious? And how cautious should we be? Different international instruments have answered these questions in very different ways. The differing definitions of the precautionary principle, and their generally platitudinous quality, suggest that the precautionary principle may not take us very far in addressing specific environmental problems.

International law, precautionary principle, environment

Abstract:
The paper examines the range of options for the post-2012 period for commitments to mitigate climate change. It (1) addresses the function and importance of mitigation commitments, (2) identifies the range of options with respect to three variables (what types of commitments, when, and by whom?), (3) proposes criteria for assessing these options, and (4) evaluates some of the leading proposals. The paper is one of six "think pieces" prepared for the Pew Center on Global Climate Change on core issues in developing an effective international response to global climate change.

international environmental law, climate change, global warming

Abstract:
Is the study of international law an art or a science? Can the role of international law be explained by general rules, with predictive value? Or does it require the exercise of judgment, in order to account for the richness and complexity of international life? Traditionally, international lawyers have gravitated to the latter view, analyzing issues in an essentially ad hoc and eclectic manner. In their controversial new book, The Limits of International Law, Jack Goldsmith and Eric Posner argue forcefully for a more scientific approach, relying on the methodology known as rational choice theory. The article examine the book's ambition to develop an overarching theory of international law, which reduces the role played by international law to a few simple explanatory models. In the end, Limits makes a convincing case that rational choice theory can help us better understand the development and effectiveness of international law. But the book provides no compelling reason why noninstrumental factors might not also play a role. It presents a flattened picture of the world, drained of texture and nuance and color. It illustrates that, to understand international law, we need not only science, but also art.

international law, methodology, theory

Abstract:
This Pew Center on Global Climate Change Working Paper examines international sectoral agreements as one element of post-2012 climate change framework. It is part of a Pew Center series expanding on key recommendations of the Pew Center's Climate Change Dialogue at Pocantico. The paper explores different types of international sectoral approaches, the potential benefits of sectoral agreements, factors that make a sector more or less well suited for a sectoral agreement, and key design variables that must be addressed in developing international sectoral agreements.

climate change, international environmental law, global warming

Abstract:
The surge of interest among international lawyers in "constitutionalism" represents one of several efforts to reconceptualize international governance; others include the research projects on global administrative law and legalization. The paper applies the constitutionalist lens to international environmental law - one of the few fields of international law to which constitutionalist modes of analysis have not yet been applied. Given the protean quality of the terms "constitution" and "constitutionalism," the paper begins by unpacking these concepts. By disaggregating these concepts into a number of separate variables, which have a more determinate, unambiguous meaning, we can answer the question, "is there an international environmental constitution?", in a more nuanced way - not in an all or nothing fashion, but by considering the extent to which international environmental law has constitutional dimensions. The paper concludes that, although individual treaty regimes have constitutional features, international environmental law as a whole lacks the hallmarks of a constitutional order.

international law, environment, constitutionalism

Abstract:
The MOX litigation, concerning radioactive pollution from a manufacturing plant along the Irish Sea, has been a poster child for the emerging issue of fragmentation in international law. It has involved proceedings in four different forums: an arbitral tribunal convened pursuant to the OSPAR Convention (dealing with pollution of the Northeast Atlantic), an arbitral panel established under Annex VII of the UN Convention on the Law of the Sea (UNCLOS), the International Tribunal for the Law of the Sea (ITLOS) and the European Court of Justice (ECJ). This paper is the introduction for a forthcoming volume focusing on the OSPAR piece of the MOX puzzle. The OSPAR arbitral award is notable not only for its specific conclusions regarding the nature and scope of the right of access to information, but for its more general discussion of the relationship of the OSPAR regime to other legal rules on access to information, including European Community directives and the 1998 Aarhus Convention. The majority's legalistic approach - its focus on the treaty text rather than on broader policy considerations - has engendered considerable controversy, but should not be surprising. Ireland chose to invoke a legalized method of dispute resolution to address a comparatively narrow legal issue in the MOX dispute, concerning access to information. In a field where non-legal modes of dispute resolution are on the rise, and where the lines between hard and soft law are often blurry, the tribunal's punctilious approach to the distinction between law and policy reflected its view of its proper role as a legal institution.

international law, environment, dispute settlement, arbitration

Abstract:
The paper proposes an "integrated multi-track framework approach" to the post-2012 climate change negotiations initiated in Bali, which seeks to introduce "bottom-up" flexibility while retaining the cohesion and reciprocity of "top-down" commitments. Under a multi-track approach, all major economies would enter into commitments aimed at reducing or moderating their greenhouse gas (GHG) emissions, but the type of commitment would vary. For example, some countries might have binding economy-wide emission targets, as under Kyoto, while others would commit to implement national policies such as efficiency standards, renewable energy targets, or measures to reduce deforestation. Some, in addition, could participate in sectoral agreements on targets, standards, or other measures addressing emissions from particular sectors. The paper elaborates the rationale for an integrated multi-track approach; draws lessons from other multilateral regimes, and identifies key issues in designing a multi-track climate framework. It assesses three models: an "individualized commitments" approach, which affords countries the greatest flexibility; a "parallel agreements" approach, which provides more structure and integration; and an "integrated commitments" approach, in which countries agree to negotiate within given tracks towards a comprehensive package agreement. The paper concludes that of the three, the "integrated commitments" model is the one most likely to produce a collective level of effort sufficient to meeting the challenge of climate change.

climate change, UNFCCC, Kyoto Protocol, global warming

Abstract:
National actions to protect the environment can be more or less unilateral, ranging from those that promote purely national policies at one extreme to those that promote international norms at the other. Although the preference for international action to protect the environment is understandable, sometimes unilateral action can play a catalytic role in the development of an environmental regime. Moreover, often effective multilateral action is impossible, so the choice is not between unilateralism and multilateralism but between unilateralism and inaction. Rather than condemning unilateral action outright, we need to evaluate each particular unilateral action (or inaction) to determine whether it advances or detracts from desired ends.

international law, environment, unilateralism, multilateralism

Abstract:
From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics - at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments - not only absolute targets, but also indexed targets, taxes, efficiency standards, and so forth. Such an approach would not provide a long-term solution to the climate change problem; the more costly climate change mitigation is, the more states will want greater assurance that their efforts are being reciprocated by other states. But a bottom-up approach might help break the current impasse and get the ball rolling. It reflects, not ideal policy, but rather less than ideal politics.

climate change, international environmental law, global warming

Abstract:
Everyone wants to learn from history, so as not to repeat it. But what are the lessons of the Kyoto Protocol? Although opinions differ widely, a growing consensus accepts the need for greater flexibility in a new climate change agreement. This short essay argues that a more flexible architecture is a necessary, though not sufficient condition, for agreement in Copenhagen, and briefly discusses how flexibility is reflected in recent proposals by the US and Australia.

climate change, international environmental law

Abstract:
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.

international law, norms