Treaty Interpretation and Treaty Process Approaches to International Environmental Law: Package Deal vs. Framework Convention

1/3 All students should work individually to resolve the Mekong River Problem, addressing the problem of siting an investment in an international river basin where one group of countries have entered into a treaty downstream, but other countries upstream are not members of the treaty. Concerning the customary law rules on river basins, you already have seen them in the Lake Lanoux decision we read for Unit 2. Does it make a difference where the investment is located on a river flowing across national boundaries, and why? How does the interaction between customary and treaty law work here, so that you can advise your client?

2/3 Let’s divert to a policy inquiry for broader insight for all students. We have the 1992 UN Framework Convention on Climate Change, followed by the 1997 Kyoto Protocol effective in 2005 (mandating emissions reductions of basically 5% from a 1990 baseline during the period 2008-12, only by developed countries), including approaches like the Clean Development Mechanism or CDC permitting developed countries to “sponsor” aka fund projects to reduce greenhouse gas (GHG) emissions in developing countries to enable said developed countries to achieve their national reduction targets via “credits” for reducing GHG generation in developing countries (for example, via tropical forest preservation, or lessening emissions via “green” technology– perhaps electrifying vehicles, as well as funding renewable energy). This split system reflected ideas about differentiated obligations for developing countries, both as a matter of capacity, and at least informally because of their economic development goals, meaning industrialization largely in pursuit of the export-led development model (which theoretically would increase their GHG emissions). From a developing country perspective, economic growth is still their most important policy goal.

The Kyoto Protocol is still in effect, and some developing countries would still favor its approach, but it was substantially undercut by the US refusal to ratify it based upon President Bush’s conviction that it did not address the GHG atmospheric capacity problems (because of non-coverage of growing major developing country GHG emitters like China and India). Over time we moved to the 2015 Paris Climate Accord aka Paris Agreement and a system based upon announced national reduction goals, not specifically limited to developed countries, but without effective sanctions for failure to meet national GHG reduction goals (so enforceability is an issue). Notwithstanding its seeming non-binding character, the Trump Administration chose to withdraw from the Paris Agreement (although it would be relatively easy for the US to rejoin).

In his June 1, 2017 statement that the US would withdraw, President Trump emphasized that, if a better deal were negotiated, he would favor rejoining, but under the circumstances US undertakings under the Paris Agreement would negatively affect US employment and competitiveness, allow major emitters like China to continue to increase emissions for another 10+ years, and articulated his opposition to any US contribution to a $100 billion Green Climate Fund (to enable financing of developing country projects to reduce emissions). In any case, he thought the financial obligations imposed upon the US would be unreasonable, and staying in the Paris Agreement as constituted was not in the US or its citizens’ best interests (read the annotated statement here).

The 1991 Sebenius IR piece on negotiating a regime to control global warming was written in advance of the 1992 UNCCC negotiations, but expressed both negative assessments of what would not work as negotiating approach, as well as the best approach to reach agreement. We are yet to reach agreement, so with the benefit of hindsight was Sebenius right or wrong in his details? What changes in approach do you think Sebenius would recommend at this point to “get to yes,” other than possibly anticipated climate change effects progressively worsen for a further period of years, to inspire the parties that something must be done, etc.?

If you compare the Caminos & Molitor article on LOS, you will note the US’ opposition to LOS’ deep seabed mining provisions and the related concept of the international administration of such mining arrangements. With the benefit of hindsight, it is probably fair to say that President Reagan ultimately rejected ratification of LOS in large part because of opposition to the deep seabed mining provisions, which were viewed, fairly or unfairly, as paralleling the New International Economic Order demands of the developing world asserted in the early to mid-1960s (so roughly at the time LOS’ negotiation commenced). This might be termed an ideological opposition on Reagan’s part, but doubtlessly a deal killer. What do you think, was President Trump’s opposition to the Green Climate Fund based upon similar ideological concerns, yes or no? (It was said at the time that the $100 billion fund was “peanuts,” disregarding the fact that the US’ share probably would not have exceeded 15-20%.) There arguably was a similar ideological background to the US refusing to join the CBD, which we shall discuss in a later unit.

Would it work simply to replace the Green Climate Fund with CDM, which is still in place under the Kyoto Protocol, since then developed countries might effectively “buy” GHG reductions via financing developing world reduction projects? The problem seems to be that the developing world arguably perceives itself as a matter of distributive justice and differential treatment to be entitled to have someone else effectively pay for their own GHG reductions, meanwhile that approach seemed unacceptable to both Presidents Reagan (for LOS) and Trump (for the Paris Agreement). Does the name or characterization really matter, why or why not, since we see distributive justice arguments on the developing world side also in Dr. Mahatir’s speech you read in Unit 1? Or is this all less about ideology and more about simple negotiation leverage, since, after all, President Trump was willing to contemplate signing an “improved” Paris Agreement? Where does the problem seem to lie in repeatedly failing to reach agreement, since all countries are famously in the same boat on prospective climate change (except its negative effects would probably be greater in the developing world, as a matter of equatorial location)? How do you account for the continuing failure to reach agreement, at least through Sebenius’ eyes? Or did Sebenius miss something, in which case how would you understand the problem?

3/3 Everyone should read the problem, but groups of students will be appointed to work on and present the Flathead Mine and Boundary Waters Treaty Problem, addressing the extent to which an older 1909 Boundary Waters treaty does or does not govern the modern problem of what happens when Canadian provincial authorities desire to permit a coal mine in the watershed 50 miles north of the boundary waters under circumstances that may lead to mine tailings and the like washing into the boundary waters river, and perhaps eventually impacting river trout in scenic Montana on the other side of the boundary waters river. Ultimately, the problem is whether and how you might take a 111-year old treaty chiefly aimed at navigable waters concerns, and use it to address environmental issues some distance from the boundary waters river itself? Is this legitimate in international law terms, because here you must interpret a treaty?

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