Archive for
April, 2007

Khmer Rouge Tribunal Moving Forward

by Duncan Hollis

Supreme Court Grants Certiorari in Medellin

by Roger Alford

Footnote Filching and other Unsavory Practices in the US Supreme Court, Part I

by Marko Milanovic

Thanks and a disclaimer

by Marko Milanovic

Opinio Juris Welcomes Guest Blogger Marko Milanovic

by Chris Borgen

Political Science 101 and International Law

by Roger Alford

And Still More on the Comfort Women

by Duncan Hollis

Continuing the Comfort Women Controversy

by Duncan Hollis

Japan to Join the ICC in October

by Kevin Jon Heller

Goldman Does Good

by Peter Spiro

A Moody’s for NGOs?

by Peter Spiro

Cynicism About American Idol Gives Back

by Roger Alford

Russia “Suspends” Participation in Conventional Forces Treaty

by Julian Ku

Balkin on Defending GITMO Detainees

by Kevin Jon Heller

Lynne Stewart Disbarred

by Kevin Jon Heller

The Global Conversation about the Virginia Tech Shooting

by Peggy McGuinness

EU Criminalizes Racist and Xenophobic Speech (Updated)

by Kevin Jon Heller

Daylight Savings and the Liberal Global Warming Plot

by Roger Alford

Will Bosnia Seek to “Revise” the ICJ’s Bosnia Genocide Judgment?

by Julian Ku

Foreign Treaties as Legislative History

by Roger Alford

India v. New York (Round Three)

by Julian Ku

Benign American Hegemony — Restorable?

by Peter Spiro

ICTR Will Not Prosecute Rwandan President

by Julian Ku

Wanted: The Inaugural Opinio Juris Intern

by Duncan Hollis

Youngstown and Negative Pragmatism

by Roger Alford

The ICTY Prosecutor Strikes Back: Del Ponte Defends Deal to Conceal Serbian Documents

by Julian Ku

Does International Human Rights Law Better Humankind? Probably Not, Says Eric Posner

by Julian Ku

The VCCR and Ineffective Assistance of Counsel

by Roger Alford

World Bank Backs Away from Family Planning

by Kevin Jon Heller

A Francophone Family Dispute: Rwanda Files Case Against France in the ICJ

by Julian Ku

Crimes, War Crimes and the War on Terror

by Duncan Hollis

Amnesty International Accuses Taleban of Committing War Crimes

by Julian Ku

Sosa and Erie Continued

by William S. Dodge

[Professor Bill Dodge teaches at Hastings College of Law and is an expert on the Alien Tort Statute]

Last September, Opinio Juris hosted an online workshop to consider the forthcoming article by Curt Bradley, Jack Goldsmith, and David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.”

The article has now come forth, and I have written a brief response for the Harvard Law Review Forum. In it, I argue that Sosa rejected Bradley, Goldsmith, and Moore’s position that courts must find positive authority for the incorporation of customary international law into the U.S. legal system before they may apply it in cases over which they have jurisdiction. I further argue that the author’s positive incorporation requirement lacks legitimacy because it is inconsistent with the original understanding and has no foundation in either statutory law or the Constitution, thus failing Erie’s own test of legitimacy. Finally, I defend the legitimacy of customary international law on the grounds that its requirements constrain the discretion of federal judges and that it may be overridden by Congress.

The “Partial Birth” Abortion Decision and the Utter Absence of International and Foreign Law

by Julian Ku

TWAIL III: The Third World and International Law

by Chris Borgen

“Guns Don’t Kill People, Aliens Do”

by Peter Spiro

Firearm Mortality and Lethality Rates Across the World

by Roger Alford

Tunisian Man Set to Become the First Arab Muslim “Righteous Gentile”

by Kevin Jon Heller

Did the ICTY Prosecutor Make a Deal with Serbia to Withhold Evidence of Bosnia Genocide?

by Julian Ku

Holocaust Distortions

by Roger Alford

Defending Wolfowitz from a World Bank Smear

by Julian Ku

As Long as We Don’t Start Calling It a “Police Action”

by Kevin Jon Heller

Serbian Paramilitaries Convicted of Killing Bosnian Muslims

by Kevin Jon Heller

First ICTR Transfer to a National Court

by Kevin Jon Heller

Barbecueing the Military Commissions Act in Texas

by Julian Ku

Roundtable on Massachusetts v. EPA: Happy But Not Euphoric

by John Knox

[John Knox is a professor at Wake Forest School of Law where he teaches international environmental law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

Roger’s, Dan’s, and Hari’s thoughtful posts explain why Massachusetts v EPA is an important case in several respects, particularly, of course, for international efforts to address global warming. Without downplaying the importance of the case, I thought I would devote this post to explaining why the case left me feeling happy, but far less than euphoric. From least to most important, here are three reasons why the Mass v EPA glass is half-empty.

First, it’s further evidence that the Supreme Court, composed of nine of the smartest lawyers in the country, assisted by two or three dozen of the smartest law clerks, is largely clueless about international law. I understand that the case didn’t address international law directly, but it did attempt to characterize briefly the international legal framework, and managed to average about one basic error per sentence. Can you spot the three mistakes in the following three sentences?

The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “prevent[ing] dangerous anthropogenic [i.e., human-induced] interferences with the [Earth’s] climate system.” The Senate unanimously ratified the treaty. Some five years later . . . the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions.


Answers at the end of the post.

Second, this decision was way too close, especially on the merits. Isn’t it kind of amazing, and appalling, that Justice Scalia received four votes for a dissent that would have allowed EPA to defer making a judgment on whether greenhouse gases cause or contribute to dangerous air pollution, on the ground that it might interfere with the president’s “comprehensive approach to climate change” (sic)? And that would have alternatively affirmed EPA on the ground that it has reasonably concluded that the science is still too uncertain to allow it to form a judgment on whether greenhouse gases endanger public welfare? And that would have alternatively affirmed EPA because carbon dioxide isn’t an air pollutant?

Third, by itself the case will not require effective regulation of greenhouse gas emissions in the foreseeable future, if ever. The Court held that EPA has the authority under sec. 202 of the Clean Air Act to regulate greenhouse gases, but it didn’t require it to do so. EPA still has a chance on remand to provide an explanation about why it shouldn’t. It’s hard to imagine any explanation passing muster with this Court, but the process of deciding and relitigating will take years, and who will be on the Court then? Moreover, the case only addressed EPA’s authority to regulate new cars. The envlawprofs listserv has debated whether the case paves the way for carbon dioxide to be listed as a criteria pollutant under sec. 108, which would open the door to a broader range of regulations, including on stationary sources like coal-fired power plants. Personally, I think it does, but it may take another round of litigation to convince this EPA. And listing a pollutant would merely require EPA to set a national ambient air quality standard (NAAQS). Setting a NAAQS for CO2 would be tremendously difficult and lead to further litigation. The last effort to tighten a NAAQS was delayed in court for over five years. And setting a NAAQS just begins the process; the next step would be for states to prepare implementation plans (SIPs) to achieve the NAAQS. EPA has to approve the SIPs, which takes time, and even after approval, SIPs often don’t attain the NAAQS. Many states have still, after decades of trying, been unable to bring themselves into attainment with the NAAQS for specific pollutants within their areas.

All this is kind of depressing me. So let me end by saying that the glass is half-full, too. Most important, it helps to puncture the bubble of unreality within which this administration has been living for six years. Like the Baker/Hamilton commission’s report on Iraq, the Court’s opinion is a tribute to fact. In brief, it says, “Climate change is a real problem. The U.S. government can do something about it. In fact, the Clean Air Act requires EPA to do something about it. EPA isn’t doing anything, and its excuses for not doing anything are too feeble to take seriously. EPA should get to work.” I completely agree with Dan that to have an effective international approach to climate change, the United States has to take the lead, as it did on ozone, by taking stronger actions on climate change domestically. The court’s opinion helps to pave the way for such actions. But to be effective, the next steps should be legislative. If we wait for EPA to fix this problem for us, we’ll be waiting a long time.

OK, here are the answers.

Error 1: The Court said, “The UNFCCC is a ‘nonbinding agreement’.” Wrong. The UNFCCC, like all treaties, is binding on its parties. See Vienna Convention on the Law of Treaties art. 26, probably the most fundamental principle in all of treaty law. What the Court probably means is that the UNFCCC didn’t require the parties to reduce greenhouse gas emissions. That isn’t the same thing.

Error 2: The Court said, “The Senate . . . ratified the treaty.” No, it didn’t. It provided its advice and consent. See U.S. Constitution art. II, sec. 2. Ratification of a treaty occurs when the president delivers an instrument of ratification to the proper recipient in accordance with the terms of the treaty. See VCLT art. 14.

Error 3: The Court said, “The UNFCCC signatories met in Kyoto and adopted a protocol.” The signatories didn’t meet; the parties met. Signing a treaty does not normally bind a signatory to it. Ratification or the equivalent is usually required. Certainly the UNFCCC requires it. See UNFCCC art. 22.

Are these minor mistakes? Well, they don’t affect the outcome of the case, but they’re mistakes that any halfway attentive student would avoid after taking one class in international law. What does it suggest that no one on the Supreme Court knows enough about international law to catch them?

Yemen Reverses ICC Ratification

by Julian Ku

World Bank Irony Watch: Anti-corruption Crusader Wolfowitz Apologizes for Inappropriate Influence

by Peggy McGuinness

New Essay on SSRN

by Kevin Jon Heller

Professionalizing the Rule of Law Consultants

by Chris Borgen

What is a “Foreign or International Tribunal”?

by Roger Alford

Roundtable on Massachusetts v. EPA: Domestic and International Policy Effects

by Daniel Bodansky

[Dan Bodansky, the Emily and Ernest Woodruff Chair in International Law at the University of Georgia Law School, is a leading expert on climate change and is co-editor of the recently published Oxford Handbook of International Environmental Law. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision.]

As usual, commentators are already busy re-litigating Massachusetts v. EPA, with environmentalists claiming a great victory and some conservatives consoling themselves that the Court’s holding about the Clean Air Act may not have a huge practical effect. I’m never quite sure whether this is all an exercise in spin – a calculated attempt to reshape reality by portraying it to one’s own advantage – or whether the divergent portrayals reflect the psychological tendency to square the world with our preconceptions. Regardless, the question remains: Who is right? What effect will the court’s decision have on climate change policy?

The most direct result of the Court’s holding would be to induce EPA to regulate emissions of carbon dioxide under the Clean Air Act, but I think that this is the least likely effect. Sure, the Administration may attempt to regain the initiative by a show of action. But although I’d love to be proven wrong, I have a hard time imagining the Bush Administration suddenly seeing the light and deciding to do anything real. Certainly, the Administration’s early reaction to the decision suggests that it intends to continue business as usual.

But while the decision may not lead directly to EPA regulation, it has changed the political landscape. First, the decision adds to the growing chorus about the threat of global warming. From a scientific standpoint, the Court’s voice may be relatively minor – really more of an echo than an independent source. The report issued last week by the Intergovernmental Panel on Climate Change is of much greater scientific significance. But, nonetheless, the Court’s imprimatur provides added legitimacy to the issue. Second, the decision further isolates the Bush Administration and discredits its reliance on voluntary measures. If we want to get serious about climate change, the court in essence says, some type of government regulation is needed. Third, the decision may signal how the Court will rule in future cases – for example, regarding whether states such as California can impose fuel efficiency standards or adopt other types of climate change measures. For all of these reasons, the decision increases pressure on Congress to act now, rather than leave the issue to the rule-making authority of the EPA or to a patchwork of state policies. As one Washington insider observed, “All roads now lead to Congress.”

From an international standpoint, will the Court’s decision help or hurt? In its brief, EPA had argued that requiring carbon regulation under the Clean Air Act could weaken US diplomatic efforts to persuade developing countries to take action against climate change. This argument is disingenuous, at best. If the US were actually engaged in negotiations with developing countries to limit emissions, EPA’s argument might at least have had the virtue of sincerity. But, in fact, the Bush Administration has made no effort to negotiate emission reductions on a reciprocal basis; instead, it has done the reverse, joining forces with developing countries in trying to block negotiations on future commitments.

The Bush Administration’s foreign policy argument about the effect of the Court’s decision is not only hypocritical; it is also wrong substantively. Far from undermining efforts to negotiate a stronger international climate change regime, unilateral regulation of emissions by the United States would be a tremendous boost to the negotiating process. Currently, lack of US action provides an easy excuse for developing countries – if the world’s richest country, and biggest emitter, isn’t taking action, why should developing countries be expected to do so? Strong US domestic action would change this dynamic, and give the US credibility in seeking stronger developing country measures. One can see the importance of leadership in California’s climate change program, which has put the pressure on others to take similar action. At least in the environmental realm, international progress has tended to grow out of domestic action, rather than the other way around.

After years in the doldrums, the climate change issue has now reemerged with greater urgency than ever. At a meeting that I attended a year and a half ago at Yale, Jeff Sachs predicted that the United States would get serious about climate change even before the next Administration came into office. At the time I thought that this was wishful thinking. But events since then suggest that Sachs may be right after all. Of course, we still have a long way to go. But the Court’s decision last week gives a significant boost to the climate change cause.

Roundtable on Massachusetts. v. EPA: The Front-line of U.S. Climate Change Litigation

by Hari Osofsky

[Hari M. Osofsky is an Assistant Professor of Law at the University of Oregon. She is a regular contributor to IntLawGrrls. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision]

The Supreme Court decision in Massachusetts v. EPA represents a watershed moment in the U.S. dialogue over climate change. The ruling may not induce major changes in behavior directly, but when viewed in the broader context of litigation and policy, it is a critical step forward.

The opinions in the case contain some gems for those who want to push for stronger greenhouse gas regulation. Most importantly, no member of the Court attempted to deny the serious need to regulate greenhouse gas emissions. Justice Robert’s dissent opened with the acknowledgement: “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’” Although the dissents certainly opposed the majority position on justiciability, and three of the justices also disagreed on the merits, none of them argued that climate change was not happening or was too uncertain to regulate in some fashion.

The majority opinion held that harms to coastal property in Massachusetts were enough to provide the petitioners with standing. In so doing, the Court rejected the idea that the “widely shared” harms of climate change prevented claims of individualized harm. As I’ve discussed in a soon-to-be-posted symposium piece forthcoming in the Oregon Review of International Law, this approach to standing involves “scaling down” of the science and law; the opinion recognizes that a “global” problem like climate change can have state and local causes and impacts. Although the Court carefully cabins its standing analysis as applicable to the state petitioners, its holding at the very least provides important support for regulatory and nuisance actions brought jointly by governmental and nongovernmental petitioners that are currently pending in the lower courts.

On a substantive level, the opinion endorses an evolutionary view of statutes and imposes limits on the executive branch. The Court’s interpretation of the “broad language” of the Clean Air Act Section 202(a)(1) as “an intentional effort to confer the flexibility necessary to forestall … obsolescence” supports responsive environmental law in this country. Although the opinion stops short of mandating that the EPA regulate greenhouse gas emissions, it requires the agency to meet stringent standards if it chooses not to do so. In particular, the Court constrains the EPA’s regulatory discretion by stating: “Under the clear terms of the Clean Air Act, EPA can avoid taking future action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The law and policy significance of Massachusetts v. EPA, however, involves more than just its precedential impact. As I’ve discussed in depth in Climate Change as Pluralist Legal Dialogue?, the parties to the case are all major players in the policy debate over climate change. For example, California is a plaintiff in four other cases and a defendant in one other, leads the country with its groundbreaking legislation AB 32, and its representatives in Congress are playing important leadership roles in the development of federal statutes regulating greenhouse gases. Its cities also have taken the lead as petitioners in climate change litigation, members of international initiatives on climate change, and “signatories” to the Kyoto Protocol requirements. This opinion thus interacts in a range of complex ways with a broader dialogue occurring simultaneously at multiple levels about how to address climate change.

As a new Oregonian and recently-departed Californian, I am very proud of “my” states’ victories over the Bush Administration. But also I hope that this landmark moment, in which the U.S. Supreme Court has first spoken on climate change and acknowledged its importance, is one from which all of us move forward in our own efforts—personal, local, state, national, and international—to address this problem that will become ever more relevant to our daily lives.

*The ideas in this post have been expressed in part in my Opinion Editorial in the Oregonian,and my post on the case on IntLawGrrls.

Peru is Looking for a Few Good International Lawyers to Bring Chile to the ICJ

by Julian Ku

More on the Missing Evidence in the ICJ’s Bosnia Judgment

by Julian Ku

Federal District Court Rules on Torture Allegations

by Roger Alford

Non-Stop International Law at Yale Law School

by Roger Alford

The WTO and You

by Duncan Hollis

Blogging and the Impact of Legal Scholarship

by Peggy McGuinness

Videos of “New Haven School” Conference

by Chris Borgen

Thanks to UN Watch and Elizabeth Cassidy

by Peggy McGuinness

Not So Old Habits Die Hard: States Back With Divestment Campaigns

by Peter Spiro

Alvarez ASIL Speech Now On-Line

by Peter Spiro

An Uncontroversial Enforcement of U.S. Immigration Laws

by Julian Ku

Why Read When You Can Watch?

by Duncan Hollis

Time to Buy that Samsung Flat Screen

by Julian Ku

Foreign Relations Concerns in Massachusetts v. EPA

by Roger Alford

SSRN Responds to My Post

by Kevin Jon Heller

Reason #1 to Love New Zealand

by Kevin Jon Heller

Dispute Resolution of Softwood Lumber Disputes

by Roger Alford

“50 Ways International Law Harms Us”: Not Your Typical ASIL Presidential Address

by Peter Spiro

David Hicks’ Plea Agreement

by Kevin Jon Heller

The Truth About Law School Rankings

by Roger Alford