Customary (and Not So Customary) International Environmental Law

In this article, Professor Bodansky examines the creation and importance of customary international law. He suggests that the debate over the legal status of any given norm may be misplaced. Instead, he suggests that international lawmakers should spend their time and energy incorporating norms, regardless of their true status, into concrete treaties and actions. The author begins his discussion by providing a working definition of customary international law. He asserts that such law can be based not just on uniformities of state behavior, as is traditionally held, but also on regularities in behavior. Thus, customary international law can be formed even when states do not fully comply with a particular norm. Next, Professor Bodansky contends that state declarations may be just as indicative and useful in uncovering customary international law as state behavior. but the author goes on to state the such declarative law does not and should not carry the same weight as customary norms based on state behavior. Because such norms are non-legal, courts and other arbiters cannot enforce them against a state. the author concludes, however, that these non-legal norms may play a significant role in setting the terms of the debate, especially in negotiations between states. These norms can then be incorporated into treaties and other international agreements, making them more concrete and enforceable. Ultimately, as the author states, the international community should spend less time debating a norm\u27s legal status and more time translating general norms into enforceable treaties

The Art and Craft of International Environmental Law

International environmental law is often closer to home than we know, affecting the food we eat, the products we buy, and even the air we breathe. Drawing on more than two decades of experience as a government negotiator, consultant, and academic, Daniel Bodansky brings a real-world perspective on the processes by which international environmental law develops, and influences the behavior of state and non-state actors. In self-contained chapters that offer a clear guide to a complex field, Bodansky answers fundamental questions about how international environmental law works. What role can law play in addressing global environmental challenges such as climate change, ozone depletion, and loss of biodiversity? How do environmental problems come onto the international agenda? What are the obstacles to international cooperation, and what can international environmental law do to address them? How do international rules develop? How are they put into practice and what makes them effective

Protecting the Environment During Wartime pp.18-21

Woodruff Chair Daniel M. Bodansky explores the impact of war on the environment and what can be done to protect precious resources during times of conflict

Protecting the Marine Environment from Vessel Source Pollution: UNCLOS III and Beyond

The vessel-source pollution provisions of UNCLOS III have become the reference point for virtually all discussions of marine environmental jurisdiction and, although the Convention is not yet in force, have arguably become norms of customary international law. Moreover, these environmental provisions are likely to come under increased scrutiny and assume even greater importance should the disputes over the seabed mining provisions of the Convention be resolved. Thus far, these disputes have stood in the way of ratification by many advanced industrialized countries, including the United States. The U.S. Congress recently rejected several international conventions dealing with oil spills on the grounds that they were too weak. Unless environmentalists are satisfied that UNCLOS III adequately protects the oceans, vessel-source pollution could emerge as a new obstacle to U.S. ratification. This article begins with a brief introduction to the problem of vessel-source pollution and discusses the role of flag, coastal, and port state jurisdictions (part I). It then reviews the law prior to UNCLOS III and explores the changes made by the Convention, suggesting that in many respects UNCLOS III retained the preexisting jurisdictional rules (part II). The article then critiques UNCLOS III by illustrating both its ambiguities and the ways in which it favors maritime over coastal state interests (part III). The conclusion of the article argues that additional rules and standards, both substantive and jurisdictional, are needed to protect the marine environment and forestall unilateral coastal state action (part IV)

Targets and Timetables: Good Policy But Bad Politics?

From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming post-2012 negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, but also indexed targets, taxes, efficiency standards, and so forth. Such an approach would not provide a long-term solution to the climate change problem; the more costly climate change mitigation is, the more states will want greater assurance that their efforts are being reciprocated by other states. But a bottom-up approach might help break the current impasse and get the ball rolling. It reflects, not ideal policy, but rather less than ideal politics

International Law and the Protection of Biological Diversity

This article provides a general overview of international environmental law and biodiversity. First, the article argues that biodiversity is an international issue because international cooperation is necessary to implement national preservation policies effectively and because the benefits of biodiversity accrue in part to the international community. Second, the article discusses existing international law relevant to biodiversity, including wildlife and habitat protection treaties, the 1992 Convention on Biological Diversity, and general principles of international environmental law such as the precautionary principle, the principle of intergenerational equity, and the principle of differentiated responsibilities. Finally, the article recommends that the international community use incentives rather than trade bans to encourage Third World nations to protect their biological resources. Professor Bodansky suggests expanding the recognition of intellectual property rights in biological resources and the use of transfer payments to compensate poorer countries for protecting biodiversity

Does One Need to be an International Lawyer to be an International Environmental Lawyer?

The question I want to address is whether one can now say that IEL [International Environmental Law] represents a distinct field. Of course, it is a distinct field in the sense that it addresses a distinct set of problems and has developed a wide body of primary rules in response. However, is it a distinct field in the stronger sense of having its own characteristic methodologies and techniques

The Use of International Sources in Constitutional Opinion

My argument for the use of international materials to interpret the Constitutional will proceed in four parts. First, I will argue that international law has a venerable history in constitutional interpretation. Second, I will argue that American courts and foreign courts are engaged in a common legal enterprise and could learn from one another. Third, I will argue that the text of certain constitutional provisions invites the use of international materials. Finally, I will argue that taking international opinion into account has strong pragmatic justifications

Legal Regulation of the Effects of Military Activity on the Environment

While in times of peace a growing number of multilateral environmental agreements serves to protect the environment, existing international law affords only very limited protection against the threats of war to the environment. This is the finding of a study by Prof. Daniel Bodansky, University of Georgia, USA on behalf of the German Federal Environmental Agency (Umweltbundesamt) which reviews the adequacy of the law of war and of the general principles of international law to protect the environment. At present international law leaves nation states with a wide degree of discretion to justify environmental harm caused by acts of war