INTERNATIONAL ENVIRONMENTAL LAW LAW A545A

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1 University of Washington School of Law INTERNATIONAL ENVIRONMENTAL LAW LAW A545A Winter 2017 Thomas J. Schoenbaum, JD (Mich), PhD (Cantab) Instructor s tjschoen@uw.edu SYLLABUS INTRODUCTION: the purpose and scope of the course This course will introduce students to the extensive existing body of international environmental law and will explore how international law may be used to facilitate environmental protection. International environmental law is a relatively new branch of Public International Law that has developed only in the last fifty years. International environmental law, while exhibiting many of the characteristics of the larger subject, has its own peculiarities: for example, international environmental law is replete with general principles and so-called soft law. Our subject is also interdisciplinary; economics, ethics, ecology, international relations, and politics are very important to understanding the legal concepts and rules involved. (By the way, although this course will not presume the student has taken Public International Law as a prerequisite, those who have taken that course will find it advantageous). International environmental law is best understood as involving two basic components. The first important element is called general international environmental law. These are concepts and rules, such as the concept of sustainable development and the rule prohibiting significant transboundary environmental harm, that are general and that cut across all substantive environmental legal areas. Second are the rules of law (often very generally expressed) that concern particular substantive areas. These substantive areas are the topics that are typically of the most interest. These topics include the following: 1. Shared freshwater resources 2. Protection of the marine environment 3. Polar regions 4. Climate change and protection of the atmosphere 5. Biological diversity 6. Biotechnology 7. Forests and habitat preservation 8. Desertification 9. Regulation of trade in chemicals and wastes 10. Environment and trade You can readily see that international environmental law is a huge field of law. In this course the schedule allots us only 20 meetings so we cannot cover everything; we must pick-and-choose the topics to cover. CLASS MATERIALS The materials we will study in class are the chapters in the book: Schoenbaum and Young, International Environmental Law: Cases, Materials and Problems (Carolina Academic Press, 2014) as well as the accompanying Document Supplement. Students are asked to read the materials in advance of each class and to participate in class discussions. A prominent feature of each class will be discussion regarding the solutions to particular problems that 1

2 will be contained in each chapter topic. The methods used to conduct this class will be problem-solving; Socratic questioning regarding international law cases, and short lectures. TOPICS Class 1: Introduction and Background I. In this class we will briefly cover (1) the history of the development of international environmental law; (2) international environmental governance; (3) the roles of science, technology and ethics; and (4) environmental economics. Assignment: reading materials and documents in chapter 1. Class 2: Introduction and Background II. In this class we cover the problems assigned in chapter 1. Class 3: General International Environmental Law I. In this class we will begin our study of international environmental law as such. We begin by examining the sources of international law that are important for our topic. We will also cover some important legal principles, such as the harm prevention principle; the principle of sustainable development; the precautionary principle; intergenerational equity; the environmental impact principle; and the polluter-pays principle. Class 4: General International Environmental Law II. In this class we will discuss two topics: (1) the relationship between international environmental law and domestic law; and (2) enforcement and effectiveness of international environmental law. Class 5: Biological Diversity. In this class we consider in detail the problems of compliance, dispute settlement and international environmental litigation in the context of preservation of biological diversity. Reading materials on biological diversity, chapter 8, pp Class 6: State Responsibility and Transboundary Harm I. This class will focus on the harm prevention principle and different formulations of the law of state responsibility and how they apply to transboundary environmental harm. We will consider the Chernobyl nuclear accident and how the law might apply to a similar accident today. 2

3 Class 7: State Responsibility and Transboundary Harm II. This class will continue the discussion of the previous class but will focus primarily upon border pollution and what may be done to combat it. Assignment: reading materials and documents in chapter 3. Class 8: State Responsibility III: Specialized Regimes. In this class we will consider specialized regimes of liability for transboundary pollution damage. Assignment: reading materials in chapter 3. Class 9: Protection of the Atmosphere I. After an overview, this class will cover the international regulation of long-range transboundary air pollution and the Vienna Convention and the Montreal Protocol on protection of the earth s ozone layer. Class 10: Protection of the Atmosphere II. In this class we will continue our analysis and discussion of the different international legal instruments dealing with protection of the ozone layer and we will also begin considering the problem of climate change. Class 11: Climate Change I. In this class we will analyze in detail the Kyoto Protocol and the Copenhagen Accord as well as additional proposed solutions for climate change. Class 12: Climate Change II. In this class we will discuss climate change in terms of the options available and President Obama s climate action plan for the United States. We will divide the class into interest groups and begin a mock climate convention negotiation. Class 13: Climate Change III. In this class we will finish climate change with consideration of the Second Commitment Period (2013 to 2020) and the landmark Paris Agreement on Climate Change (2015). Class 14: Protection of the Marine Environment I. 3

4 This class will cover four topics: a) The marine environment and the law of the sea b) The principal international organizations involved in protecting the marine environment c) Land-based marine pollution d) Protection of the marine environment of the Area Class 15: Protection of the Marine Environment II. In this class we will address the international regulation of (1) operational ship pollution and (2) ocean dumping. Class 16: Protection of the Marine Environment III. In this class we will analyze marine casualties and liability for damage especially in the context of oil spills. Class 17: Marine Fisheries We will analyze the provisions of the United Nations Conventions on marine fisheries. Class 18: Whales and Marine Mammals; Marine Ecosystems We cover the international law provisions relating to marine mammals. Class 19: Antarctica We cover the Antarctica Treaty System Assignment: readings and documents chapter 9. Class 20: The Arctic We cover the emerging system of law for the Arctic Area Assignment: readings and documents chapter 9. 4

5 GUIDE TO FURTHER READING AND RESEARCH I. Treaties International environmental law is overwhelmingly treaty law. The documents and other materials that I make available in this course consist mainly of the applicable treaties. These treaties are also readily available on the internet. The main points of treaty law are codified in the Vienna Convention on the Law of Treaties (1969). Most international environmental treaties also create international institutions as well as procedures and processes to create more law on the concerns involved. The institutions involved frequently post much information on their respective web sites. II. General Works International environmental law is widely discussed in journals and specialized periodicals. But the best place to begin research is often a general scholarly work. While there are many fine books on the subject, I recommend the following: Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment, 3d ed. (Oxford: Oxford University Press, 2008). Daniel Bodansky, Jutta Brunee and Ellen Hey, The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007). Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, 3d ed. (New York: Cambridge University Press, 2012). Alexander Kiss and Dinah Shelton, International Environmental Law (Leiden and Boston: Martinus Nijhoff, 2007). Assessment The final exam will be the principal determinant of the mark attained by each student. Credit for class participation and extra research or other work will be accorded to the extent permitted by institutional rules. 5