Barrett Commentary to “The Art and Craft of International Environmental Law”

Dan Bodansky’s new book doesn’t just explain what international environmental law is. It explains why it exists, how it develops, and, very importantly, whether it makes a difference—a difference that you and I can experience in our everyday lives. What I like most about this book is that it gives the reader a feel for the subject (this is why the title, The Art and Craft of International Environmental Law, is so apt). This is essential. Some scholars question whether international law exists, and the reason, I think, is that international law is constructed very differently than domestic law. It is not written down from above, as it were, but bubbles up from below. International law is created, but not always deliberately; it emerges, but not entirely randomly. It establishes the “rules of the game” of international relations but the rules are evolving and not always clear, and the process that gives rise to these rules is also changing—really co-evolving with the rules themselves. For all these reasons, international environmental law can be difficult to pin down. But it’s important, and our futures depend on it, so we need to understand it. We need most of all to understand how to manipulate it (I don’t mean “manipulate” in the pejorative sense of the word) to address the great challenges of our times.

The greatest of these challenges is climate change, and Dan knows at least as much about this subject as any international law expert anywhere. He knows very well that the world has not addressed this challenge satisfactorily, and I think he knows the reasons why. The question is, Can we do better? I think the answer is yes. But then: Will we do better? This is less clear. The answer depends partly on whether we have provided a proper diagnosis of the reasons for failure thus far.

There seems to be unanimous agreement that the negotiation process failed in Copenhagen. Yes, an agreement was concluded; but the “Copenhagen Accord” was hastily written by a few world leaders in the final hours of a chaotic conference. From one perspective, this was a remarkable accomplishment—one for which President Obama deserves high praise. From another, it is disturbing that an issue of such great complexity should be addressed in this way. You have only to read the brief document to know that it resolves nothing.

What are the lessons? The lesson most people have drawn from this experience is that we need another process. The G20 has been mentioned. So has the Major Economies Forum. On Tuesday I heard of another idea, the G28 (whatever that is). Whichever process is adopted, the conclusion seems to be: if only we had a different (better) process the outcome would be better. I disagree; and I’d like to know what Dan thinks.

I disagree because I don’t think the process is the problem (though I’m sure the process can be improved). I think the failure of the process is a symptom of a deeper problem—our entire approach. This approach has focused on the setting of targets and timetables for the emissions of entire countries. It is an approach that emerged in the late 1980s. It is an approach that has prompted country after country to set unilateral targets, almost all of which have been missed. It is an approach that lies at the very heart of the Kyoto Protocol—an agreement that has failed to reduce global emissions, and that Copenhagen was supposed to improve upon. In many ways, I see the Copenhagen Accord as taking us full circle. We started this process in the late-1980s with countries declaring short-term economy-wide emission targets. Twenty years later, Copenhagen is asking countries to declare new numbers, perhaps with new base years, for this same quantity.

This is frustrating. It will make some people want to reject the value in international negotiations and international law. But as Dan explains in his book, there really is no viable alternative. So we have to keep trying. But should we change the process or the approach? Dan, what do you think?