Daniel Bodansky

May we engineer the climate

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’.

The Paris climate change agreement: a new hope?

Know your limits. This familiar adage is not an inspirational rallying cry or a recipe for bold action. It serves better as the motto for the tortoise than the hare. But, after many false starts over the past twenty years, states were well advised to heed it when negotiating the Paris Agreement. While it is still far too early to say whether the Agreement will be a success, its comparatively modest approach provides a firmer foundation on which to build than its more ambitious predecessor, the Kyoto Protocol.

The Who, What, and Wherefore of Geoengineering Governance

The potential of geoengineering to reverse global warming rapidly and cheaply makes it alluring to groups across the political spectrum. But geoengineering also poses significant risks and raises the specter of technology gone awry. This article analyzes the basic governance issues raised by geoengineering, including the possible functions, forms, objects and agents of governance. It then explores these issues by focusing on four scenarios of particular concern: inadequate research funding, premature rejection, unilateral individual action, and unilateral state action.

Facilitating linkage of climate policies through the Paris outcome

The Durban Platform for Enhanced Action negotiations are likely to lead to a Paris outcome that embodies a hybrid climate policy architecture, combining top-down elements, such as for monitoring, reporting, and verification, with bottom-up elements, including ‘Intended Nationally Determined Contributions’ from participating countries, detailing plans to reduce emissions, based on national circumstances. For such a system to be cost-effective – and thus more likely to embody greater ambition – a key feature will be linkages among regional, national, and sub-national climate policies. By linkage, we mean formal recognition by a mitigation programme in one jurisdiction of emission reductions undertaken in another jurisdiction for the purposes of complying with the first jurisdictions requirements. The Paris outcome could play at least four different roles with respect to linkage of heterogeneous policy instruments. First, it could discourage linkage, either by not allowing countries to count international transfers toward their mitigation contributions, or by limiting the number or types of transferred units that can be counted for compliance purposes. Second, it could be silent on the topic of linkage, creating legal and regulatory uncertainty about whether international transfers are allowed. Third, it could expressly authorize linkage but not provide any further details about how linkage should occur, leaving it to future United Nations Framework Convention on Climate Change negotiating sessions to work out the details or to national governments to develop bilateral or multilateral linkage arrangements. Finally, the Paris outcome could establish institutional arrangements and rules that facilitate and promote linkage. We examine how a future international policy architecture could help facilitate the growth and operation of a robust system of international linkages. Several design elements merit serious consideration for inclusion in the Paris outcome, either in the core agreement or by establishing a process for subsequent international elaboration. At the same time, including detailed linkage rules in the core agreement is not desirable because this could make it difficult for rules to evolve in light of experience. Policy relevance These findings have implications for the efficient and effective design of an international climate policy architecture by detailing the role that linkage can play in supporting heterogeneous climate policies at the regional, national, and sub-national levels.

Transatlantic environmental relations

1. Introduction: Europe, America and Bush 2. Foreign and Defense Policy Cooperation 3. Trade and Economic Relations 4. Justice and Internal Security Cooperation 5. Transatlantic Environmental Relations 6. US and European Perspectives on Russia 7. The US and Europe in the Balkans 8. The Middle East: Focus of Discord? 9. Unilateral Europe, Multilateral America? 10. Conclusions: A Transformed Transatlantic Partnership?

The Concept of Legitimacy in International Law

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 more topical papers such as David Caron’s paper analysing the legitimacy of the Security Council.2 In the last decade, there has been an explosion of interest in the problem of international legitimacy — what one writer has called a veritable renaissance in international legitimacy talk.3 This, I think, reflects the growing authority and importance of international institutions. When international institutions were relatively weak, legitimacy was not a pressing issue. But as they have become more influential, and as the need has grown for international institutions with greater authority to address collective problems such as climate change, this has prompted more questions about what will make such institutions legitimate.

The International Climate Change Regime

Although the general theory of greenhouse warming has been understood by scientists since the end of the nineteenth century, an international regime to address the problem of climate change began to develop only in the late 1980s.1 In the decade and a half since then, the regime has undergone a remarkable evolution. In 1992, states adopted the UN Framework Convention on Climate Change (UNFCCC), which took effect in 1994 and serves as the “constitution” for the international climate change regime.2 In 1997, the UNFCCC was supplemented by the Kyoto Protocol, which requires industrialized countries to reduce their emissions of carbon dioxide and five other gases that contribute to the greenhouse effect (so-called “greenhouse gases” or GHGs for short). And the 2001 Marrakesh Accords further elaborate the Kyoto Protocols regulatory regime, setting forth detailed rules for how the Kyoto Protocol will operate.

Regulating Greenhouse Gas Emissions from Ships: The Role of the International Maritime Organization

Three international regimes are relevant to the regulation of greenhouse gas emissions from maritime transport: (1) the UN climate change regime; (2) the International Maritime Organization; and (3) the UN Law of the Sea Convention (UNCLOS). This essays surveys the three regimes and their interactions, focusing on the International Maritime Organization and, in particular, the 2011 amendments to MARPOL Annex VI. Although the MARPOL Annex VI amendments constitute the only binding sectoral agreement adopted to date to limit greenhouse gases, IMO action falls well short of what is needed to combat climate change, and it is unclear whether and when the IMO might adopt additional measures, such as a market-based mechanism.

Should We Care What the Pope Says About Climate Change

The brokerage firm, E.F. Hutton, used to have a tagline that went, “When E.F. Hutton speaks, people listen.” On climate change, the Pope has spoken, but will people listen? And should they? The first question is empirical; the second, normative. The papal encyclical, Laudato Si’, was released in May 2015 to much acclaim. It is an extraordinarily wideranging document. Although I will focus, in particular, on its discussion of climate change, it is worth noting that the encyclical addresses virtually the entire litany of environmental problems—loss of biodiversity, hazardous chemicals and wastes, marine pollution, replacement of virgin forests with monoculture plantations, and lack of access to clean drinking water, among others—as well as related social problems such as extreme poverty and urban overcrowding.

The "Tomimaru" ( Japan v. Russian Federation) (Bernard H. Oxman) - ITLOS judgment regarding effect of confiscation on duty of prompt release of fishing vessel arrested in exclusive economic zone

Japan filed applications with the International Tribunal for the Law of the Sea on July 6, 2007, seeking prompt release on bond of two Japanese-flag fishing vessels detained by Russia for illegally fishing in its exclusive economic zone (EEZ) off eastern Siberia. One, the 88th Hoshinmaru, had been arrested slightly over a month earlier. The other, the 53rd Tomimaru, had been arrested over eight months earlier, on October 31,2006. In its judgments of August 6, 2007, the Tribunal granted the application for release of the Hoshinmaru, fixing a lower bond than Russia had specified, but denied the application for release of the Tomimaru on the ground that it was without object (para. 76). The chronology of events with respect to the Tomimaru is as follows: On October 31, 2006, the Tomimaru was boarded in the Russian EEZ and arrested after an inspection revealed that five-and-one-half tons of walleye pollack on board were unaccounted for (para. 24). A subsequent inspection uncovered at least twenty tons of gutted walleye pollack that were not listed in the logbook, as well as other catch whose capture was forbidden (para. 25). Criminal proceedings were instituted on November 8 against the master, who was ordered to remain in Russia (para. 26). Other crew members were permitted to leave following the investigation (para. 30). Separate administrative proceedings were instituted against the owner on November 14 (para. 31). The prosecutor in the criminal case fixed bond on December 12 (para. 36). Two days later, the owner sent a letter noting this fact and requesting that bond also be fixed with respect to the administrative offenses with which the owner was charged (para. 37). On December 19, the court hearing the administrative charges rejected the petition for bond (para. 39). On December 28, that court imposed a fine and confiscated the vessel and its equipment (para. 42). This decision was affirmed on appeal by the Kamchatka District Court