Participating Universities

University of South Carolina Law School

Teaching Faculty

Prof. David Linnan

Coverage

Environmental concerns transcend national borders, but present distinctly different issues to differing groups of countries in an area where “soft” law predominates. We shall be looking at four things in particular this Fall. First, how things look for international environmental law after the change in administrations, with the Biden Administration seemingly accepting the idea of climate change? Second, how things look in the rest of the world, both as a matter of their perceptions and the commercial reality that our private sector-business community (aka clients) do not do business only in the US? Third, there recently has been considerable private sector movement in terms of ESG developments and the like, seemingly also in opposition to certain actions undertaken late in the Trump Administration (so most clients appear to embrace ESG, and the bankers are hard at work trying to make money off decarbonizing the economy). Fourth, the IPCC Sixth Assessment Part I on the physical science of climate change appeared recently, unsurprisingly without containing much good news. The balance of the Sixth Assessment (Parts II and III covering mitigation and adaptation, as well as the final synthesis volume) are not scheduled to be released publicly before 2022, but there is some anticipation that climate change media coverage will continue, if not increase, through 2022 as more of the Sixth Assessment documentation is released to the public. The not so hidden message is that if international environmental law is about global issues, you can run but you cannot hide longer term.

This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). There is also a growing overlap between certain areas of international trade and international environmental law. Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, because it still is relatively early in the law-making process, believe it or not. People begin to have a broader appreciation of the problems, but for better or worse there is still visible hesitation about how to address them outside members of the environmental community. Nonetheless, all those unpleasant 2050 climate change projections, etc., should they eventuate, are scheduled to occur during the professional careers of currently enrolled law students. I assume most students take the course hoping to learn something about that looming uncertainty, and how to address it legally.

Meeting Times & Places

The course is scheduled to meet regularly 09:10-11:20 Columbia time Wednesdays in Law School Room 204. Notwithstanding COVID-19 delta variant issues, the Law School is open for business and physical classes will meet. Class sessions should be recorded and available on panopto, but that is only for review purposes. Office hours will be as follows. On request, we can schedule a virtual meeting at any time (via WhatsApp, Zoom, or whatever; my e-mail for scheduling an appointment is davidkeithlinnan@yahoo.com), or we just meet physically in the Law School Courtyard on request (just email me or we schedule after class for meetings Tuesdays through Thursdays 13:00-17:00, or otherwise just catch me immediately following class).

Text and Approach

We shall save you the cost of a commercial law casebook in this course. You will find the free course website at https://uofsclawcourses.azurewebsites.net/courses/laws666-international-environmental-law/ The order of coverage from our web-based materials follows:

UNIT 1	Introduction on Background
UNIT 2	Customary Law as Basis for International Environmental Law
UNIT 3	Human, Development & Other Rights-based Legal Approaches to International Environmental Law
UNIT 4	Human Rights Views Differing: ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
UNIT 5	Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors?)
UNIT 6	Treaty Interpretation and Treaty Process Approaches (Framework Conventions Versus the Package Deal Approach)
UNIT 7	Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law
UNIT 8	Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)
UNIT 9	Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions
UNIT 10	Implementation & International Monitoring on the Example of Ozone
UNIT 11	Climate Change as the Ultimate Test for the Framework Convention
UNIT 12	Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
UNIT 13	1973 CITES Convention & Approaches to the Marine Environment: Science, Old Treaties & Regional Governance
UNIT 14	1992 Biodiversity Convention, Sustainability & Indigenous Knowledge
UNIT 15	Enforcement, Natural Resources & Who Decides?

This course is mostly a specialized international law course, but is offered without prerequisites knowing that some students will have prior knowledge and training in public international law, while others may not. We shall try to address this via online resources and during office hours, but if all else fails, the public international law nutshell and similar black letter law summaries are helpful.

Dr. Linda Yanti Sulistiawati is a faculty member at the Faculty of Law, Gadjah Mada University, Yogyakarta, Indonesia, visiting this year at the National University of Singapore on a research fellowship. You will encounter her name in a jointly authored opinion piece you read for the first class. But Linda will also use our website materials part of the time to teach her own online UGM international environmental law class this Fall 2021. Wearing another hat, she has also participated as a member of Indonesia’s negotiating delegation in UN environmental and climate change conferences, and is a co-author on the IPCC Sixth Assessment. So she will join us online at some point to discuss and explain how those big international climate change conferences look from the inside of a major developing country delegation, and how they actually put together those IPCC reports (and I plan to teach in the other direction in her UGM course). You will also be zooming locally at some point at least with two outside environmental lawyers and a climate scientist as noted under the Charleston Problem.

Assessment

Grading in the two-credit version of the course will be based largely on your performance in your groups working over approximately half the term on the Charleston Problem (contained in Unit 7, as soon as they update the website). There is also an option to take the course for three credit hours, including writing a 30-page paper structured to satisfy the graduation legal writing requirement. In that case you participate in the Charleston Problem group work, plus complete your individual paper. Students wishing to write a research paper should talk early and often with the instructor. Satisfaction of the graduation writing requirement means that you will be required to choose a topic in consultation with the instructor, produce an outline, followed by a first draft and then a final version of the paper. Note that you must confer with the instructor at least three times in the process: to choose a topic cooperatively, to review your writing outline together, and then for comments between your first draft and the final paper version. I sincerely hope you are done in two drafts, but that largely is dependent upon you putting the necessary effort into your first draft. The process may be harder due to COVID-19 pandemic complications, but we shall work it out. We shall also organize a help session with the reference librarians to introduce you to international environmental law and climate change sources, as a way to help you get started.

You will also be required to prepare other problems and projects for class in groups, where we shall employ a self-grading process within groups (meaning your colleagues indicate whether you did your fair share of the work). The concept is that we rotate responsibility for preparing presentations of group problems so you presumably have one to prepare every 2-3 weeks in your group during the semester. Your grade will also reflect self-grading on the margin (basically, up or down a half letter grade in +/- terms)

COVID Complications

The delta variant has thrown a monkey wrench into the Law School’s reopening, and we are basically bound to follow university-wide policy. This in turn is set in part in accordance with formal acts of the Governor, the Legislature and the Attorney General’s Office. All of that you presumably should understand well as law students. Candidly, the details will all depend on how things develop as a public health matter during the semester, so stay tuned. Having said that, at the moment all students are strongly encouraged but not required to get vaccinated and wear a mask indoors at the university. Covid tests will presumably be required periodically for all, in accordance with university directives. Class attendance is required as under the normal rules unless you have a valid excuse, which is subject to interpretation but seems to mean have been diagnosed with Covid, are formally quarantined on suspicion of Covid, or have a university ADA certification that you cannot attend classes physically (meaning something like you are immune-compromised, or perhaps might have someone like that with whom you live, and you have to be certified through the university process, etc.– simple failure to be vaccinated is not an adequate excuse). Better to stay home if you feel unwell, rather than to risk infecting others. Having said all of that, even if you believe sincerely that masks impinge on your personal well-being and freedom, don’t be a jerk, wear a mask for your colleagues’ sake, if not your own sake.

There is no glory in making someone else sick, and I suspect all your classmates will have very, very long memories if you infect someone else because you refused to wear a mask. What would you think if somebody else totally ruined your semester? I am not sure of the exact numbers, but a substantial portion of previously healthy young folks who become infected will develop “long Covid” symptoms, so that pain may last much longer than Fall 2021.

Having lived through the SARS and bird flu epidemics in SE Asia personally, public health is a serious matter. Look on the bright side, at least you are not required to have your temperature taken before entering any public building, or to carry your own Tamiflu dose for timely use, just in case. Things are much grimmer in a lot of places overseas at the moment, so count your blessings and do your part.

Copyright 2020–21 © David Linnan.