Global negotiations on stabilizing greenhouse gas emissions in the period after 2012 will commence in Bali in December 2007. The main emitting nations—including Brazil, Canada, China, the European Union, India, Mexico, South Africa and the U.S.—have recently affirmed their commitment to reach a “comprehensive agreement” in these negotiations. They also promised to contribute their “fair share” to stabilize greenhouse gases to prevent “dangerous anthropogenic interference with the climate system.”
Of course, one of the biggest obstacles, if not the very biggest, to such an international agreement has been the U.S. itself. The U.S. not only failed to ratify the Kyoto Protocol—the international framework to limit emissions up to the year 2012—but has also failed to put forward any meaningful stabilization strategy in its place. One of the most shocking aspects of the U.S. failure has been the country’s disregard for both international and domestic law. Yet this lawlessness looks set to change.
In recent years, the unilateralist foreign policy of the U.S. government has brazenly ignored or contravened countless aspects of international law, ranging from the Geneva Conventions to multilateral environmental treaties to which the U.S. is a signatory. This brazenness has infected the very core of policy discussions in our country. Consider an opinion piece by two distinguished professors of law at the University of Chicago, who argued in the Financial Times on August 5 that the U.S. has no obligations to control greenhouse gases, and that if other countries don’t like how the U.S. behaves and how that behavior affects them, they might think about paying the U.S. to cut its emissions. In other words, the U.S. should behave as it likes. It is up to the others to induce the U.S. to change course.
Stunningly, the law professors completely neglected that the U.S. is already bound by international law to take steps to stabilize greenhouse gases in the atmosphere under the United Nations Framework Convention on Climate Change, signed by President George H. W. Bush and ratified by the U.S. Senate in 1992, and which entered into force in 1994. The treaty holds specifically that the developed countries should take the lead in combating climate change, and should “adopt national policies . . . consistent with the objective of the Convention,” which is the stabilization of greenhouse gases at a level that prevents dangerous interferences in the climate system.
The claim of these law professors that the U.S. has no duty to avoid damaging the climate of others is flatly contradicted by the Convention and by international law. The parties to the Convention, including of course the U.S., recall in its preamble that “in accordance with the Charter of the United Nations and the principles of international law…. [States have] the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.”
Ironically, those law professors are running away from international law even faster than the Bush administration. John B. Bellinger III, a legal advisor to the State department, recently emphasized the administration’s commitment to international law and referred to its allegiance to a post-2012 climate change framework in that context. He quoted Secretary of State Condoleezza Rice’s statement that “America’s moral authority in international politics also rests on our ability to defend international laws and treaties.”
The Supreme Court also weighed in recently to emphasize that U.S. domestic law also compels stronger federal action to mitigate climate change. The Commonwealth of Massachusetts, among a number of plaintiffs, sued the Environmental Protection Agency (EPA) for its failure to regulate the emission of carbon dioxide by automobiles. The EPA had argued that carbon dioxide was not a pollutant under the Clean Air Act, that Massachusetts could not sue the EPA because it lacked legal standing to do so, and that any action by the EPA would have minimal effect on climate change.