Introduction on Background

1/3 We shall spend our first class talking about what might be termed broader framework and background issues, so that you later have a better understanding of the significance of the more technical portions of international environmental law. We shall also do a run-through of some basic public international law principles and doctrine relevant to international environmental law. There are some distinctive aspects to international environmental law, including the heavy involvement of NGOs, overlaps to both country-level economic development, and between trade law and environmental law as a result, sharp divisions between the developing and developed world (and also within the developed world, since the Europeans are seemingly considerably “greener” than Americans and richer Asians), and a growing sense that climate change as we move from pure mitigation increasingly to an adaptation phase may involve substantial disparate impacts (most developing countries lie close to the equator, hence will suffer increasing heat and food system impacts arguably faster and more), while most industrialized countries lie further off the equator in temperate zones (so may suffer more variable weather, but probably do not face constantly increasing heat conditions like tropical and desert locations– meanwhile, the US itself may encounter special problems because of the Southwestern deserts and local pressure on water resources).

There is a sense that we increasingly need to articulate law in one form or another to address climate issues (since like the pandemic, the shared problems will not wait for us in abeyance). But how can we do that, absent agreement, or more to the point, how do you reach agreement in the first place? And what is the place of incentives like market-based principles or private industry codes articulated in part as safe harbors? We eventually face the question whether it is good enough to change behavior, regardless of whether changes result from “law,” but that is the essential trade off between “soft” and “hard” law. But is that good enough? And how to deal, together or separately, with the concept(s) that we are actually experiencing two separate climate challenges, one as to “climate change” but another under the rubric “biodiversity”?

2/3 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). 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, since it still is relatively early in the law-making process. People begin to have a broader understanding of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those projected 2050 climate change developments, etc., should they eventuate, are scheduled to happen during the professional careers of currently enrolled law students. You presumably will be senior businesspeople, lawyers, judges, elected officials, and civil servants in your mid-fifties in 2050, so you should experience in your own professional lifetimes all such choices made. That is the national schedule, but guess what, sea level rise is projected to raise serious issues in Charleston increasingly already 2035-40 under the Fourth National Climate Assessment (increased sunny day and king tide flooding, as well as enhanced surge issues in hurricanes).  So issues in the Lowcountry may become increasingly serious by your late thirties, so you may have to deal with them for over half your professional careers.

3/3 Now please do the Unit 1 readings and prepare the problems and questions section before our online class. The basic pattern is that you should prepare the readings each week. The problems section will contain problems and questions sometimes to be addressed individually, and sometimes to be assigned to groups to be worked on and presented in class. But for this week, you should prepare everything individually.

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