INT’L ENVIRON. LAW BACKGROUNDER

1. INT’L ENVIRON. LAW BACKGROUNDER Prof David K. Linnan USC LAW # 666 Unit One

2. ADMIN I COURSE PAGE AT http://www.lfip.org/laws666spring05/index.htm READING ASSIGNMENTS POSTED ON COURSE MATERIALS AT http://www.lfip.org/laws666spring05/cm666-05.htm HARD COPIES ON LIBRARY RESERVES TOO, DO YOU WANT CD-ROMS? NOTE WATCHING STREAMING VIDEOS TOO (IN ADVANCE OF CLASS)

3. ADMIN II YOU MUST SIGN UP FOR LISTSERV intlenviro (INSTRUCTIONS AT CLASS ADMINISTRATION LINK ON COURSE PAGE), SEE http://www.lfip.org/laws666spring05/admin.htm CLASS PROBLEMS & ACCESSMENT

4. ECONOMIC ACTIVITY WHAT DOES THE BELOW MAP TELL YOU ABOUT COUNTRIES AND ECONOMIC ACTIVITY AS AN UNDERLYING REALITY OF INT’L ENVIRONMENTAL LAW? http://www.lfip.org/laws666spring05/index.htm WHAT IS DR. MAHATIR’S VIEW OF INT’L ENVIRONMENTAL LAW? WHY?

5. WHAT INT’L LAW? WHAT IS INT’L LAW? WHAT ARE DIFFERENT APPROACHES OF PUBLIC INTERNATIONAL LAW? WHAT IS INTERNATIONAL ENVIRONMENTAL LAW?

6. INT’L ENVIRON. LAW? WHAT IS INT’L ENVIRONMENTAL LAW? 1. A fixed body of rules, like NEPA writ large? 2. A question about how to make law, recognizing that we have problems? 3. What are the interests at stake, etc. according to Dr. Mahatir? Other reading?

7. PIL ISSUES NATURE OF SYSTEM, IS IT ABOUT STATES VERSUS INDIVIDUAL RIGHTS? “SPECIES-ISM” WHO OR WHAT CAN MAKE A CLAIM, AND WHERE? IS THERE A PERMANENT JUDICIAL BODY WITH MANDATORY JURISDICTION AKA WORLD COURT? IS THERE A CENTRAL ENFORCEMENT AUTHORITY AKA SHERIFF? WHO “MAKES” THE LAW AKA LEGISLATURE?

8. PIL CONCEPTS I Differing approaches floating around past 100 years (like styles of constitutional law) 1. Traditional law between nations (state centered, hidden sovereignty ideas) 2. Human rights law post WW II (individual rights ideas, but also issues social & economic versus political & civil rights, natural law reborn?)

9. PIL CONCEPTS II Differing approaches floating around past 100 years (like styles of constitutional law) Cont’d 3. Increasing emphasis on multilateral organizations (League of Nations 1919, UN Charter 1945, structural issues of independent organizational life versus member political control and obligations/rights distinctions) 4. Changing int’l scene introducing different groups of states and views (e.g., Socialist states, ex-colonies)

10. PIL CONCEPTS III Differing approaches floating around past 100 years (like styles of constitutional law) Cont’d 5. Increasing legalization of numerous areas like international economic law (EU, NAFTA, GATT/WTO, IMF, World Bank) or environmental law, “third generation” human rights law in terms of youth, gender, sustainable development, etc. 6. Increasing judicialisation attempted (e.g., ICC and Rome Treaty, ad hoc tribunals for Former Yugoslavia, Rwanda)

11. PIL CONCEPTS IV Differing approaches floating around past 100 years (like styles of constitutional law) Cont’d 7. Media & pressure groups (NGOs) increasingly try to affect int’l behavior often through the domestic political process 8. Int’l relations cross-over into politics (e.g., hegemon-speak, battles of civilizations, preemptive war doctrines)

12. PIL CONCEPTS V Differing approaches floating around past 100 years (like styles of constitutional law) Cont’d 9. Intellectual attempts at recasting into self-enforcing structure (e.g., Draft Code on State Responsibility)

13. SOVEREIGNTY What is sovereignty, and what are its pluses and minuses conceptually? Self-preservation and preemptive war post-9/11 Nature of global environmental probs

14. COMMUNALISM Communalism and economic interdependence are currently trendy concepts, what about them? Community of nations, etc. as alleged European view post 9/11)? What is Bush Administration view re Kyoto & global warming, and why?

15. RICH & POOR Where do development, distributional justice and path dependency fit ? UN Charter & economic prosperity’s failure from a developing country perspective

16. ENVIRONMENTAL LAW INT'L VERSUS NAT'L LAW, CONCEPT INT'L ENVIRONMENTAL LAW, NOT TRADITIONAL COMMAND & CONTROL ENVIRONMENTAL LAW SINCE THERE IS NO CENTRAL INTERNATIONAL LAW SOVEREIGN, LAW AS “VOLUNTARY” IN THEORY

17. LAW VS POLICY PROBLEM IS TRADITIONALLY LAW CREATION SINCE INTERNATIONAL LAW ALLOWS FOR NO RULES ABSENT PERMITTED FORMATION (SO RECENT CONCERNS MOSTLY ABOUT HOW TO CREAT THE LAW RATHER THAN EXACT SUBSTANCE-- WITNESS GLOBAL WARMING CONTROVERSY) IS INT’L LAW “LAW” OR “POLICY” AND DOES IT MATTER?

18. PARTS PER MILL? NATURE OF INT'L LEGAL SYSTEM 1. WHO ARE PLAYERS (SUBJECTS OF INT'L LAW/STATES TRAD./NGOs IMPORTANTLY FOR INT’L ENVIRONMENTAL LAW) 2. SOVEREIGNTY & LACK OF ENFORCEMENT MECHANISM 3. DECENTRALIZED, MEANING ALSO TRAD. NO COURTS/SHERIFF 4. CAN YOU GET TO PARTS PER MILLION LEVEL, AND HOW?

19. SOURCES OF LAW CLASSIC INT'L LAW SOURCES 1. TREATIES (AGREEMENTS WITH VS. WITHOUT LEGAL FORCE) 2. CUSTOMARY LAW (BEHAVIOR UNDER LEGAL COMPULSION & OPINIO JURIS) 3. GENERAL PRINCIPLES OF LAW 4. BEST (ACADEMIC) WRITINGS

20. TREATY Treaty, express agreement written or oral [int’l law treaty different from full US constitutional treaty with Senate supermajority vote] Bilateral versus multilateral, now organic constitutional making own rules (problem negotiating up front versus longer term governance in technical areas Issues now of treaties leading to legal effects on non-members

21. CUSTOMARY LAW Customary Law (opinion juris & state practice) How long to form, how specific in its dictates?

22. GENERAL PRINCIPLES General Principles of Law Substantive vs. procedure problems Problem of hidden preference over customary law, but problem rather with customary law

23. WISTFUL THINKING Two sometimes alternate categories attempted, wistful thinking unless you are a multilateral Soft law & general principles claims (eg, what amounts to best practice), e.g. http://www4.worldbank.org/legal/legen/legen_iel.html International environmental law on model of human rights law (probably general principles), e.g. http://www.ciel.org/Publications/olpaper3.html

24. SOURCES PRO & CON What are the PROs & CONs of law formation for int’l environmental law under 1) Treaty 2) Customary Law 3) General Principles 4) Other E.g., what are the nature of underlying problems and how do they interact with options?

25. TREATY? WHAT IS THE BEST WAY TO MAKE LAW IN A DETAILED TECHNICAL AREA WITH UNCERTAINTY ON SCIENCE & ECONOMICS? What are the default rules, why? Probably treaty, but why?

26. PRACTICALLY WHO OWNS WHAT & HOW? WHO ALLOCATES OWNERSHIP? WHO EXERCISES CONTROL OVER RESOURCES/REGULATION & HOW? WHAT IS THE DIFFERENCE BETWEEN POLICY & LAW FOR THESE PURPOSES?

27. ASSIGNMENT FOR NEXT WEEK, TO UNDERSTAND SOVEREIGNTY & INT’L ENVIRONMENTAL LAW DO UNIT 19 AT http://www.lfip.org/laws783fall04/cm783fall04.htm WATCH THE STREAMING VIDEO UNIT THEN DO THE ROTUNDA PROBLEM FOR CLASS DISCUSSION (NOTE SAME AS THIS COURSE UNIT TWO, EXCEPT STREAMING MATERIAL TO WATCH IN ADVANCE)