The paper that I circulated for today's meeting built on an article that I wrote in the Amer... more The paper that I circulated for today's meeting built on an article that I wrote in the American Journal of International Law back in 1999. At that time, relatively little had been written about the issue of legitimacy by international lawyers, except for Tom Frank's pioneering book1 and some ...
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of n... more 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.
Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of... more Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of coastal communities. But does every human wrong violate a human right? Should we conceptualize climate change not only as an environmental problem – the preeminent one of our time – but also as a human rights violation? Proposals to treat climate change as a human rights problem raise many fundamental questions. Theoretically, what does it mean to conceptualize climate change in human rights terms? How would a human rights approach differ from treating climate change as an environmental or economic or scientific problem? Descriptively, what does human rights law say about climate change and, conversely, what does climate change law say about human rights? Normatively, does it make sense to approach climate change as a human rights issue? What are the pros and cons? This brief introduction to a symposium issue of the Georgia Journal of International and Comparative Law on climate change and human rights seeks to map out the overarching distinctions and questions.
The goal of the Harvard Project on Climate Agreements is to help identify and advance scientifica... more The goal of the Harvard Project on Climate Agreements is to help identify and advance scientifically sound, economically rational, and politically pragmatic public policy options for addressing global climate change. Drawing upon leading thinkers in Argentina,
Interdisciplinary Perspectives on International Law and International Relations
... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall,... more ... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall, University of California at Berkeley, Nov. 21. Applbaum, Arthur Isak 2010, Legitimacy without the Duty to Obey, Philosophy and Public Affairs, vol. 36, no. [#], pp. 215-[#]. Bäckstrand, Karin 2006 ...
Although the terminology of global public goods may be new to international law scholarship, many... more Although the terminology of global public goods may be new to international law scholarship, many of the principal features and implications of global public goods are familiar: global public goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different 'production technologies'. Some depend on the aggregate effort of the entire group, while others depend on a 'single best effort' or on the 'weakest link'. These different types of global public goods raise different governance issues and hence different challenges for international law.
For an earlier effort to assess the role of unilateral state action in protecting the environment... more For an earlier effort to assess the role of unilateral state action in protecting the environment, see Bilder, 'The Role of Unilateral State Action in Preventing International Environmental Injury', 14 Vanderbilt Journal of Transnational Law (1981) 51 et seq. As Bilder notes, 'Any perspective [on international environmental law] that ignores the role of unilateral state action. .. is likely to prove incomplete and unrealistic'.
Not only is the science of climate engineering uncertain; the legal issues are also highly uncert... more Not only is the science of climate engineering uncertain; the legal issues are also highly uncertain. Although existing international law does not specifically limit the freedom of states to undertake climate engineering, the international community would likely demand a say should climate engineering move from the realm of speculation to concrete proposals. The experience of other environmental regimes, however, suggests that developing an international decision-making mechanism would be difficult, and that the international community might opt for a simple prohibition on climate engineering on grounds of 'precaution'.
Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of wha... more Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of what to do after 2012, when the Kyoto Protocol's first commitment period ends. Should the Kyoto Protocol be extended through the adoption of a second commitment period, with a new round of emission reduction targets for developed country parties? And, if so, should a new agreement be adopted under the UN Framework Convention on Climate Change, which addresses the emissions of countries that either are not parties to Kyoto (the United States) or do not have Kyoto emissions targets (developing countries)? Or should a single new agreement be adopted that replaces the Kyoto Protocol and is more comprehensive in coverage, addressing both developed and developing country emissions? The Copenhagen Conference, which met from December 7-19, 2009, had been intended as the deadline to resolve these questions about the post-2012 climate regime-a view reflected in the unofficial slogan for the conference, "seal the deal." The decision by more than 100 heads of state or government to attend "Hopenhagen" (as the Danes called it) heightened expectations that the conference would result in a major breakthrough, and more than 40,000 people registered, making it one of the largest environmental meetings in history (and producing massive logistical problems as a byproduct). But given the lack of progress in the negotiations in the months leading up to Copenhagen, hopes for a full-fledged legal agreement proved unrealistic. Instead, the Copenhagen conference resulted only in a political agreement, the Copenhagen Accord, which was negotiated by a group of roughly 25 countries, including all of the world's major economies. Key elements of the Copenhagen Accord include: a long-term goal of limiting climate change to no more than 2° C; systems of "pledge and review" for both developed and developing country mitigation commitments or actions; and significant new financial resources. Due to objections by a small group of countries (led by Sudan, Venezuela and Bolivia), the Copenhagen Conference was unable to "adopt" the Accord. Instead, the conference took "note of" the Copenhagen Accord, leaving its future status uncertain. As of February 10, 2010, the UNFCCC Secretariat had received submissions of national pledges to limit greenhouse gas emissions from 67 countries, representing more than 80% of global greenhouse gas emissions, including the United States, the EU member states,
... Deconstructing the Precautionary Principle 385 ... in order to minimize [the] potential adver... more ... Deconstructing the Precautionary Principle 385 ... in order to minimize [the] potential adverse effects [of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import].21 Here the precautionary principle arguably operates as ...
The paper that I circulated for today's meeting built on an article that I wrote in the Amer... more The paper that I circulated for today's meeting built on an article that I wrote in the American Journal of International Law back in 1999. At that time, relatively little had been written about the issue of legitimacy by international lawyers, except for Tom Frank's pioneering book1 and some ...
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of n... more 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.
Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of... more Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of coastal communities. But does every human wrong violate a human right? Should we conceptualize climate change not only as an environmental problem – the preeminent one of our time – but also as a human rights violation? Proposals to treat climate change as a human rights problem raise many fundamental questions. Theoretically, what does it mean to conceptualize climate change in human rights terms? How would a human rights approach differ from treating climate change as an environmental or economic or scientific problem? Descriptively, what does human rights law say about climate change and, conversely, what does climate change law say about human rights? Normatively, does it make sense to approach climate change as a human rights issue? What are the pros and cons? This brief introduction to a symposium issue of the Georgia Journal of International and Comparative Law on climate change and human rights seeks to map out the overarching distinctions and questions.
The goal of the Harvard Project on Climate Agreements is to help identify and advance scientifica... more The goal of the Harvard Project on Climate Agreements is to help identify and advance scientifically sound, economically rational, and politically pragmatic public policy options for addressing global climate change. Drawing upon leading thinkers in Argentina,
Interdisciplinary Perspectives on International Law and International Relations
... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall,... more ... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall, University of California at Berkeley, Nov. 21. Applbaum, Arthur Isak 2010, Legitimacy without the Duty to Obey, Philosophy and Public Affairs, vol. 36, no. [#], pp. 215-[#]. Bäckstrand, Karin 2006 ...
Although the terminology of global public goods may be new to international law scholarship, many... more Although the terminology of global public goods may be new to international law scholarship, many of the principal features and implications of global public goods are familiar: global public goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different 'production technologies'. Some depend on the aggregate effort of the entire group, while others depend on a 'single best effort' or on the 'weakest link'. These different types of global public goods raise different governance issues and hence different challenges for international law.
For an earlier effort to assess the role of unilateral state action in protecting the environment... more For an earlier effort to assess the role of unilateral state action in protecting the environment, see Bilder, 'The Role of Unilateral State Action in Preventing International Environmental Injury', 14 Vanderbilt Journal of Transnational Law (1981) 51 et seq. As Bilder notes, 'Any perspective [on international environmental law] that ignores the role of unilateral state action. .. is likely to prove incomplete and unrealistic'.
Not only is the science of climate engineering uncertain; the legal issues are also highly uncert... more Not only is the science of climate engineering uncertain; the legal issues are also highly uncertain. Although existing international law does not specifically limit the freedom of states to undertake climate engineering, the international community would likely demand a say should climate engineering move from the realm of speculation to concrete proposals. The experience of other environmental regimes, however, suggests that developing an international decision-making mechanism would be difficult, and that the international community might opt for a simple prohibition on climate engineering on grounds of 'precaution'.
Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of wha... more Since the Kyoto Protocol's entry into force in 2005, attention has focused on the question of what to do after 2012, when the Kyoto Protocol's first commitment period ends. Should the Kyoto Protocol be extended through the adoption of a second commitment period, with a new round of emission reduction targets for developed country parties? And, if so, should a new agreement be adopted under the UN Framework Convention on Climate Change, which addresses the emissions of countries that either are not parties to Kyoto (the United States) or do not have Kyoto emissions targets (developing countries)? Or should a single new agreement be adopted that replaces the Kyoto Protocol and is more comprehensive in coverage, addressing both developed and developing country emissions? The Copenhagen Conference, which met from December 7-19, 2009, had been intended as the deadline to resolve these questions about the post-2012 climate regime-a view reflected in the unofficial slogan for the conference, "seal the deal." The decision by more than 100 heads of state or government to attend "Hopenhagen" (as the Danes called it) heightened expectations that the conference would result in a major breakthrough, and more than 40,000 people registered, making it one of the largest environmental meetings in history (and producing massive logistical problems as a byproduct). But given the lack of progress in the negotiations in the months leading up to Copenhagen, hopes for a full-fledged legal agreement proved unrealistic. Instead, the Copenhagen conference resulted only in a political agreement, the Copenhagen Accord, which was negotiated by a group of roughly 25 countries, including all of the world's major economies. Key elements of the Copenhagen Accord include: a long-term goal of limiting climate change to no more than 2° C; systems of "pledge and review" for both developed and developing country mitigation commitments or actions; and significant new financial resources. Due to objections by a small group of countries (led by Sudan, Venezuela and Bolivia), the Copenhagen Conference was unable to "adopt" the Accord. Instead, the conference took "note of" the Copenhagen Accord, leaving its future status uncertain. As of February 10, 2010, the UNFCCC Secretariat had received submissions of national pledges to limit greenhouse gas emissions from 67 countries, representing more than 80% of global greenhouse gas emissions, including the United States, the EU member states,
... Deconstructing the Precautionary Principle 385 ... in order to minimize [the] potential adver... more ... Deconstructing the Precautionary Principle 385 ... in order to minimize [the] potential adverse effects [of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import].21 Here the precautionary principle arguably operates as ...
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