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Changing International Law for a Changing Climate

  • Daniel C. Esty (a1) and Dena P. Adler (a2)
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After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, governors, and premiers. These subnational officials often have authorities complementary to national governments, particularly in federal systems (including the United States, China, Canada, and Australia). They therefore possess significant independent capacities to reduce greenhouse gas emissions through their economic development strategies, building codes, zoning rules and practices, public transportation investments, and other policies. Likewise, the world community missed an opportunity to formally recognize the commitments of companies to successful implementation of the Paris Agreement and thereby to highlight the wide range of decisions that business leaders make that significantly affect greenhouse gas emissions.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 UN Framework Convention on Climate Change, opened for signature June 4, 1992, 31 ILM 849 (1992) (entered into force Mar. 21, 1994).

2 Paris Agreement, Dec. 13, 2015, in UN Framework Convention on Climate Change, Report of the Conference of the Parties on its Twenty-First Session, Addendum, at 21, UN Doc. FCCC/CP/2015/10/Add.1 (Jan. 29, 2016).

3 Id. at 25-27, 29-30.

4 Id. at 3.

5 Id. at 15-20.

6 Cécile Barbière, 700 Cities Promise Renewable Energy Transition by 2050, Euractiv (Dec. 7, 2015).

7 Climate Summit for Local Leaders, Paris City Hall Declaration: A Decisive Contribution to COP21 (Dec. 4, 2015).

10 UN Envt. Programme, Emissions Gap Report 2017 (Nov. 2017).

11 Anne-Marie Slaughter, A New World Order 132 (2004).

12 Elinor Ostrom, A Polycentric Approach for Coping with Climate Change (World Bank Policy Research Working Paper No. 5095, 2009).

13 Robert O. Keohane & David G. Victor, The Regime Complex for Climate Change (Discussion Paper 2010-33, Harvard Project on International Climate Agreements, 2010).

14 Kenneth W. Abbott, Strengthening the Transnational Regime Complex for Climate Change, 88 Transnat'l Envtl L. 543 (2012).

19 General Agreement on Tariffs and Trade art. 15, Oct. 30, 1947, 55 UNTS 194. See also explanation in Daniel C. Esty, Greening the GATT: Trade, Environment, and the Future 123-24 (1994).

21 Anthea Roberts & Sandesh Sivakumaran, Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law, 37 Yale J. Int'l L. 107, 113-14 (2012); See also Vienna Convention on the Law of Treaties art. 3, May 23, 1969, 1155 UNTS 331.

22 U.S. Const. art. I, § 10, cl. 3.

23 Virginia v. Tennessee, 148 U.S. 503, 519 (1893).

24 See, e.g., Daniel A. Farber, Climate Change, Federalism, and the Constitution, 50 Ariz. L. Rev. 879 (2008) (arguing that informal agreements between state officers should be construed as valid under the Constitution when structured in certain ways).

25 U.S. Const. art. I, § 8, cl. 3.

26 Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).

28 See, e.g., Memorandum of Understanding to Enhance Cooperation on Climate Change and the Environment, Cal. (U.S.)- Ministry of Env't & Natural Res., Nat'l Forestry Comm'ns (Mex.), July 28, 2014. But see Douglas A. Kysar & Bernadette A. Meyler, Like A Nation State, 55 UCLA L. Rev. 1621 (2008) (analyzing the significance of the legal obstacles, but concluding the policy benefits may justify the risk).

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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