Combine and conquer. That was the strategy of those seeking to develop an international regime to address marine biological diversity found in areas beyond national jurisdiction—areas that constitute half of the world's surface and a much greater proportion of its habitable volume. States had quite different visions for the regime. On the one hand, the European Union and other developed countries such as Australia and New Zealand wanted a conservation-oriented regime providing for the establishment of marine protected areas and setting rules for environmental impact assessments; on the other hand, developing countries wanted a resource-oriented regime that would allow them to get what they consider their fair share of the benefits of marine genetic resources and would assist them with capacity building and technology transfer. Only by combining these disparate topics in a single package was agreement possible.

Welcome everyone, to this session on “The Climate Change Gap: Inequalities, Narratives, and International Law.” I am Dan Bodansky, and I am going to be moderating our panel today.

After four years of not simply inaction but significant retrogression in U.S. climate change policy, the Biden administration has its work cut out. As a start, it needs to undo what Trump did. The Biden administration took a step in that direction on Day 1 by rejoining the Paris Agreement. But simply restoring the pre-Trump status quo ante is not enough. The United States also needs to push for more ambitious global action. In part, this will require strengthening parties’ nationally determined contributions (NDCs) under the Paris Agreement; but it will also require actions by what Sue Biniaz, the former State Department climate change lawyer, likes to call the Greater Metropolitan Paris Agreement—that is, the array of other international actors that help advance the Paris Agreement's goals, including global institutions such as the International Maritime Organization (IMO), the Montreal Protocol, and the World Bank, as well as regional organizations and non-state actors. Although the Biden administration can pursue some of these international initiatives directly through executive action, new regulatory initiatives will face an uncertain fate in the Supreme Court. So how much the Biden Administration is able to achieve will likely depend significantly on how much a nearly evenly-divided Congress is willing to support.

This article discusses the importance of the recently concluded Paris Rulebook, the extent to which it limits national discretion, instils discipline and generates ambition and accountability, and the challenges that lie ahead in implementing the 2015 Paris Agreement. It discusses, in particular, the rules on mitigation, transparency, the global stocktake and the implementation and compliance mechanism, in order to highlight the choices Parties made on three overarching issues that have long bedevilled the climate change regime—prescriptiveness (the level of detail of the rules), legal bindingness (the extent to which particular rules are legally binding) and differentiation (the extent to which particular rules accommodate differences between Parties or apply uniformly to all Parties).

Customary international law often seems like a riddle wrapped in a mystery inside an enigma. According to Manley O. Hudson, even the drafters of the International Court of Justice Statute “had no very clear idea as to what constituted international custom.” The situation has not changed much since then.

I got my first taste of the difficulties in identifying custom when I was a junior attorney at the U.S. Department of State and was assigned the task of preparing the U.S. submission in a juvenile death penalty case before the Inter-American Commission on Human Rights. The juvenile death penalty is prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights, but the question in the Inter-American Commission case was whether it is also prohibited as a matter of customary international law.

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.

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.

This article provides a brief overview of legal realism and sketches out its implications for international law, using international environmental law as an example. Although the ‘new’ legal realism is not especially new, its anti-formalist, pragmatic perspective still offers important insights about the international legal process, and serves as a useful counterpoint to a new variety of formalism, which continues to resist the social scientific study of international law. Among its distinctive elements, legal realism views international law instrumentally, is empirical in orientation, and focuses on the processes by which international law is developed, implemented, and enforced, rather than limiting itself to international law doctrine. The fear of critics is that, by de-emphasizing the internal point of view and the concept of legal validity, legal realism deprives international law of the very features that make it a distinctive enterprise.

When we speak of transnational environmental law and legal process, we are concerned with the migration and impact of legal norms, rules and models across borders. Such migration can occur through the mediation of international law and institutions, or through the impact of unilateral legal developments in one jurisdiction that affect behaviour in others. The paper discusses the importance of assessing transnational environmental law in light of the constraints facing consent-based international environmental law, examines the trade-offs between transnational and international environmental law from the perspective of legitimacy, and concludes by discussing the important but delicate relation of international law to transnational environmental law as both a check and a consolidator. International law should guard against the self-serving unilateral use of transnational environmental law, but it should do so in a way that preserves (and does not shut off) the dynamic, responsive character of the transnational environmental law process. Otherwise international law itself will be delegitimized.