LAWS666 — International Environmental Law — Fall 2020 Syllabus

Participating Universities

University of South Carolina Law School

Teaching Faculty

Prof. David Linnan

Coverage

Environmental concerns transcend national borders, but present distinctly different issues to differing groups of countries in an area where “soft” law predominates. We shall be looking at two things in particular this Fall. First, how things look within the US after the United States apparently has dropped out of the Paris Agreement (and questions about what we do on the Greenhouse Gas Convention)? And second, how things look in the rest of the world, both as a matter of their perceptions and the commercial reality that our private sector-business community (aka clients) do not do business only in the US? The not so hidden issue is that if international environmental law is about global issues, you can run but you cannot hide longer term. And interestingly enough, there are a number of private sector initiatives in the nature of industry safe-harbors that clients are already complying with, meanwhile the thicket of treaty law is slowly but surely thickening. So there are questions of what constitutes “law,” and does it matter if the goal is changing behavior? International environmental law does not work like traditional command and control environmental regulation of the sort you may have been exposed to in domestic environmental law courses.

This course looks generally at the nature of the international law process in this area (with its limited number of treaty and substantive law principles), economic and other perspectives on natural resource usage, state sovereignty and abiding tensions between industrialized and developing countries concerning pollution problems (beyond prohibitions, to technology transfer and the “who pays” question). Since established law is minimal, this course examines the framework for international environmental law de lege ferenda. We try to understand differing players’ views of the problems, because it still is relatively early in the law-making process. People begin to have a broader comprehension of the problems, but for better or worse there is still visible hesitation about how to address them beyond members of the environmental community. Nonetheless, all those unpleasant 2050 climate change projections, etc., should they eventuate, are scheduled to occur during the professional careers of currently enrolled law students.

Meeting Times & Places

The course is scheduled to meet regularly 09:20-11:30 Columbia time Wednesdays in South Carolina. Due to COVID-19 issues, however, we shall meet synchronously online via WebEx. Class sessions should be recorded and available on Panopto, but that is only for review purposes. Office hours will be as follows. On request, we can schedule a virtual meeting at any time (via WhatsApp, Skype, or whatever; my e-mail for scheduling an appointment is davidkeithlinnan@yahoo.com), or we just use the class connection to hang around online for a short period after class finishes. The Law School officially seeks to minimize presence in the Law School Building at 1525 Senate Street, but I shall also set office hours at the Law School Tuesday and Wednesday afternoons (tentatively 14:00–17:00), since the COVID-19 compromise seems to be that we can meet “outside” in the Law School courtyard. But please let me know if you are coming then physically, so we can arrange when to meet and where.

Text and Approach

We shall save you the cost of a commercial law casebook in this course. The order of coverage from our web-based materials follows:

  • Unit 1 — Introduction on Background
  • Unit 2 — Customary Law as Basis for International Environmental Law
  • Unit 3 — Human, Development & Other Rights-based Legal Approaches to International Environmental Law
  • Unit 4 — Human Rights Views Differing: ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)
  • Unit 5 — Private Sector Voluntary Codes & ESG (Market-Orientation & Litigation Safe Harbors?)
  • Unit 6 — Treaty Interpretation and Treaty Process Approaches (Framework Conventions Versus the Package Deal Approach)
  • Unit 7 — Issues with Markets, Distributive Justice & Agency Problems in International Environmental Law
  • Unit 8 — Trade/Scientific Risk NTBs & Non-State Aspects (GMOs Plus)
  • Unit 9 — Trade & Environment (WTO & GATT Article XX(b)&(g) Exceptions
  • Unit 10 — Implementation & International Monitoring on the Example of Ozone
  • Unit 11 — Climate Change as the Ultimate Test for the Framework Convention
  • Unit 12 — Domestic Implications of International Treaty-Making: The Basel Convention & Hazardous Waste
  • Unit 13 — 1973 CITES Convention & Approaches to the Marine Environment: New Science, Old Treaties & Regional Governance
  • Unit 14 — 1992 Biodiversity Convention, Sustainability & Indigenous Knowledge
  • Unit 15 — Enforcement, Natural Resources & Who Decides?

This course is mostly a specialized international environmental law course, but is offered without prerequisites knowing that some students will have prior knowledge and training in public international law, while others may not. We shall try to address this via online resources and office hours, but if all else fails, the public international law nutshell and similar black letter law summaries are helpful.

Dr. Linda Yanti Sulistiawati is a faculty member at the Faculty of Law, Gadjah Mada University, Yogyakarta, Indonesia, visiting this year at the National University of Singapore on a research fellowship. You will encounter her name in a jointly authored opinion piece you read for the first class. Bu Linda will also use our website materials part of the time to teach her own online UGM international environmental law class this Fall 2020. Wearing another hat, she has also participated as a member of Indonesia’s negotiating delegation in UN environmental and climate change conferences. So she will join us online at some point to discuss and explain how those big international climate change conferences look from the inside of a major developing country delegation (and I plan to teach in the other direction in her UGM course presumably in December). It would be nice if we could set up some connection for our class to the UGM international environmental law students in their own WebEx class, but I am not sure how it could be accomplished given the different time zones, etc. Suggestions, because you are going to have to work out the questions professionally in the longer term with the UGM law students, or their developing country colleagues, who will be facing the questions themselves in 2050 at a senior level in their own system?

Assessment

Grading will be based largely on either (i) a 20-page research paper for two credit hours, or (ii) a 24-hour check-out final examination if you take the course for two credit hours. Students may choose either assessment option if they take the course for two credit hours. There is also an option to take the courses for three credit hours, including writing a 30 page paper structured to satisfy the graduation legal writing requirement. Students wishing to write a research paper should talk early and often with the instructor. Satisfaction of the graduation writing requirement means that you will be required to choose a topic in consultation with the instructor, produce an outline, followed by a first draft and then a final version of the paper. Note that you must confer with the instructor at least three times in the process: to choose a topic cooperatively, to review your writing outline together, and then for comments between your first draft and the final paper version. The process may be harder due to COVID-19 pandemic complications, but we shall work it out. We shall also organize a help session with the reference librarians to introduce you to international environmental law and climate change sources, as a way to help you get started.

You will also be required to prepare certain problems and projects for class in groups, where we shall employ a self-grading process within groups. Your grade will also reflect those on the margin (basically, up or down a half letter grade in +/- terms)

Copyright 2020–21 © David Linnan.