Papers by Dan Bodansky
Legitimacy in International Law and International Relations
Interdisciplinary Perspectives on International Law and International Relations
... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall,... more ... Arthur Isak 2003, "Legitimacy in a Bastard Kingdom," paper presented at Boalt Hall, University of California at Berkeley, Nov. 21. Applbaum, Arthur Isak 2010, Legitimacy without the Duty to Obey, Philosophy and Public Affairs, vol. 36, no. [#], pp. 215-[#]. Bäckstrand, Karin 2006 ...
Building Flexibility and Ambition into a 2015 Climate Agreement
INTERNATIONAL by
Prologue To A Theory Of Non-Treaty Norms
Looking to the Future
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of n... more This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.
European Journal of International Law, 2000
National actions to protect the environment can be more or less unilateral, ranging from those th... more National actions to protect the environment can be more or less unilateral, ranging from those that promote purely national policies at one extreme to those that promote international norms at the other. Although the preference for international action to protect the environment is understandable, sometimes unilateral action can play a catalytic role in the development of an environmental regime. Moreover, often effective multilateral action is impossible, so the choice is not between unilateralism and multilateralism but between unilateralism and inaction. Rather than condemning unilateral action outright, we need to evaluate each particular unilateral action (or inaction) to determine whether it advances or detracts from desired ends.
European Journal of International Law, 2012
Although the terminology of global public goods may be new to international law scholarship,many ... more Although the terminology of global public goods may be new to international law scholarship,many of the principal features and implications of global public goods are familiar: global public
goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different ‘production technologies’. Some depend on the aggregate effort of the entire group, while others depend on a ‘single best effort’ or on the ‘weakest link’. These different types of global public goods raise different governance issues and hence different challenges for international law.
goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different ‘production technologies’. Some depend on the aggregate effort of the entire group, while others depend on a ‘single best effort’ or on the ‘weakest link’. These different types of global public goods raise different governance issues and hence different challenges for international law.
Interdisciplinary Perspective on International Law and International Relations: The State of the art, eds. by Jeffrey Dunoff and Mark Pollack, 2012
Over the past decade, there has been an explosion of interest, both among international lawyers a... more Over the past decade, there has been an explosion of interest, both among international lawyers and international relations scholars, in the legitimacy of international institutions. The issue of international legitimacy raises many important questions. Conceptually, what do we mean by “legitimacy” and what is its relation to other concepts such as legality, authority, obedience, power, self-interest, morality and justice? Normatively, what standards should we use to assess the legitimacy of international institutions? Descriptively, what standards do different actors (government officials, international bureaucrats, civil society groups, and business) actually use in assessing the legitimacy of international institutions? Finally, causally, what factors explain the creation of institutions with normative legitimacy, wha factors explain why institutions are accepted as legitimate, and how much practical difference do beliefs about legitimacy make -- for example, for the effectiveness and stability of an institution?
This paper surveys the international law and international relations literatures on these issues. Despite many areas of convergence between the IL and IR literatures on legitimacy, there are also important differences. International relations scholars focus on the legitimacy of international institutions rather than of international law. Although many international lawyers share this institutional orientation, some have attempted to develop a more specific theory of legal legitimacy, based on internal qualities of the legal system (for example, whether rules are clear, prospective, and public, and whether they were adopted in conformity with the legal system’s secondary rules about norm creation), rather than on the political process by which the rules were produced or their substantive outcomes. This concern with what Lon Fuller called the internal morality of the law, has no counterpart among political scientists, who have shown little interest in the legitimacy of international law as such.
This paper surveys the international law and international relations literatures on these issues. Despite many areas of convergence between the IL and IR literatures on legitimacy, there are also important differences. International relations scholars focus on the legitimacy of international institutions rather than of international law. Although many international lawyers share this institutional orientation, some have attempted to develop a more specific theory of legal legitimacy, based on internal qualities of the legal system (for example, whether rules are clear, prospective, and public, and whether they were adopted in conformity with the legal system’s secondary rules about norm creation), rather than on the political process by which the rules were produced or their substantive outcomes. This concern with what Lon Fuller called the internal morality of the law, has no counterpart among political scientists, who have shown little interest in the legitimacy of international law as such.
Looking to the Future: Essays on International Law in Honor of W. Michael Reisman, eds. by M. Arsanjani, J. Cogan, R. Sloane & S. Wiessner, 2010
This short contribution to a festschrift for Professor Michael Reisman addresses the problem of n... more This short contribution to a festschrift for Professor Michael Reisman addresses the problem of non-treaty norms. In lieu of the traditional categories of custom, general principles, and soft law, the essay proposes an alternative categorization of non-treaty norms, focusing on three variables: first, whether a non-treaty norm is accepted directly or because it satisfies a secondary rule of recognition; second, whether a non-treaty norm is the result of a conscious, purposive process, with identifiable authors, or arises in a more organic, non-purposive way; and third, whether a non-treaty norm reflects a behavioral or discursive regularity. The essay suggests that this categorization provides a more useful starting point to explore the normative and explanatory questions about the origin and influence of non-treaty norms.
American Journal of International Law, 2010
This short piece analyzes the background and content of the Copenhagen Accord on climate change, ... more This short piece analyzes the background and content of the Copenhagen Accord on climate change, which was agreed to last December by leaders of roughly 25 countries, including all of the world's major economies. Although the Copenhagen Accord is a political rather than a legal instrument and has been criticized by some as inadequate or worse, it represents a potentially significant breakthrough. On one side, developed countries agreed to put significant new funds on the table for climate change mitigation and adaptation, both for the short and medium terms, and committed to implement national economy-wide emissions targets for the post -2012 period, which will be internationally listed. On the other side, developing countries agreed for the first time to reflect their national mitigation actions in an international instrument and to subject their actions to some form of international review. The failure of the conference as a whole to adopt the Accord leaves its future uncertain. But if the participating states actually carry through on what they negotiated in Copenhagen, the bottom up architecture of the Accord could help encourage and reinforce national actions. In any event, as the most that world leaders could accept through direct negotiations under an intense international spotlight, the Copenhagen Accord may well represent the high-water mark of the climate change regime for some time to come.
Georgia Journal of International and Comparative Law, 2010
Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of... more Global warming is expected to contribute to many human wrongs: disease, malnutrition, flooding of coastal communities. But does every human wrong violate a human right? Should we conceptualize climate change not only as an environmental problem – the preeminent one of our time – but also as a human rights violation? Proposals to treat climate change as a human rights problem raise many fundamental questions. Theoretically, what does it mean to conceptualize climate change in human rights terms? How would a human rights approach differ from treating climate change as an environmental or economic or scientific problem? Descriptively, what does human rights law say about climate change and, conversely, what does climate change law say about human rights? Normatively, does it make sense to approach climate change as a human rights issue? What are the pros and cons? This brief introduction to a symposium issue of the Georgia Journal of International and Comparative Law on climate change and human rights seeks to map out the overarching distinctions and questions.
Indiana Journal of Global Legal Studies, 2009
Legitimacy in International Law, eds. by Rudiger Wolfrum , 2008
Remarks at a workshop on Legitimacy in International Law held in June 2006 at the Max Planck Inst... more Remarks at a workshop on Legitimacy in International Law held in June 2006 at the Max Planck Institute for Comparative Public Law and International Law. The paper analyzes the relationship of legitimacy to legality and to self-interest; argues that much of the writing on legitimacy fails to distinguish adequately between normative and sociological legitimacy; observes that legitimacy is among the class of concepts that we can define with more confidence negatively than positively; and recommends analyzing the problem of legitimacy in a more differentiated, contextual way, focusing on how much authority an institution exercises, the nature of the issues it exercises authority over, and the type of authority it exercises.
Georgia Journal of International and Comparative Law, 2005
Bringing New Law to Ocean Waters, eds. by David D. Caron, Harry N. Scheiber, 2004
If international environmental law were to develop Ten Commandments, the precautionary principle ... more If international environmental law were to develop Ten Commandments, the precautionary principle would be near the top of the list. Like the proscriptions against killing and theft, the precautionary principle is difficult to argue with. But when we try to pin down exactly what the precautionary principle means, matters become more difficult. Behind the simple allure of the precautionary principle lie a host of difficult issues. When is precaution warranted? In what ways should we be cautious? And how cautious should we be? Different international instruments have answered these questions in very different ways. This paper surveys the various dimensions along which formulations of the precautionary principle vary. It suggests that, given the differing definitions of the precautionary principle and their generally platitudinous quality, the precautionary principle may not take us very far in addressing specific environmental problems.
Review of European Community and International Environmental Law, 1998
Review of European Community and International Environmental Law, 1998
Climatic Change, 1996
Not only is the science of climate engineering uncertain; the legal issues are also highly uncert... more Not only is the science of climate engineering uncertain; the legal issues are also highly uncertain. Although existing international law does not specifically limit the freedom of states to undertake climate engineering, the international community would likely demand a say should climate engineering move from the realm of speculation to concrete proposals. The experience of other environmental regimes, however, suggests that developing an international decision-making mechanism would be difficult, and that the international community might opt for a simple prohibition on climate engineering on grounds of ‘precaution’.
Book Reviews by Dan Bodansky
points were in discarding the same critical Marxist approach when writing about Soviet policies i... more points were in discarding the same critical Marxist approach when writing about Soviet policies in light of international law.
Books by Dan Bodansky
This essay was written for a symposium issue of the Santa Clara Journal of International Law on m... more This essay was written for a symposium issue of the Santa Clara Journal of International Law on my book, The Art and Craft of International Law (Harvard University Press 2010). It responds to the reviews by the eight contributors to the symposium issue.
How and why do international environmental norms arise? In what ways (and to what extent) do they... more How and why do international environmental norms arise? In what ways (and to what extent) do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are the fundamental questions I examine in a new book forthcoming this fall from Harvard University Press entitled THE ART AND CRAFT OF INTERNATIONAL ENVIRONMENTAL LAW.
Although international environmental law is a comparatively new field, its rules and standards now fill books - and not short books either. Not so long ago, international environmental law was considered a narrow specialty within the general field of international law. But today it has become a field in its own right, with sub-specialties on wildlife law, marine pollution, freshwater resources, climate change, sustainable development, and chemicals, among others. The Art and Craft focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself. Process issues have received increased attention in recent years but have not yet had a book-length treatment. This work aims to fill that gap, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.
“What Is International Environmental Law?” is the introductory chapter and gives a flavor of the approach taken by the book as a whole. Using an encounter I once had with an NGO fundraiser as a jumping off point, the chapter explores the scope of international environmental law as well three different perspectives on its study. The goal is to provide general readers and specialists alike with a real-world perspective on how international environmental works - and sometimes doesn’t work.
Although international environmental law is a comparatively new field, its rules and standards now fill books - and not short books either. Not so long ago, international environmental law was considered a narrow specialty within the general field of international law. But today it has become a field in its own right, with sub-specialties on wildlife law, marine pollution, freshwater resources, climate change, sustainable development, and chemicals, among others. The Art and Craft focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself. Process issues have received increased attention in recent years but have not yet had a book-length treatment. This work aims to fill that gap, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.
“What Is International Environmental Law?” is the introductory chapter and gives a flavor of the approach taken by the book as a whole. Using an encounter I once had with an NGO fundraiser as a jumping off point, the chapter explores the scope of international environmental law as well three different perspectives on its study. The goal is to provide general readers and specialists alike with a real-world perspective on how international environmental works - and sometimes doesn’t work.
Climate Policy Papers by Dan Bodansky
Negotiations pursuant to the Durban Platform for Enhanced Action appear likely to lead to a 2015 ... more Negotiations pursuant to the Durban Platform for Enhanced Action appear likely to lead to a 2015 Paris agreement that embodies a hybrid climate policy architecture, combining top-down elements, such as for monitoring, reporting, and verification, with bottom-up elements, including “nationally determined contributions” from each participating country, detailing what it intends to do to reduce emissions, based on its national circumstances. For such a system to be cost-effective—and thus more likely to achieve significant global emissions reductions—a key feature will be linkages among regional, national, and sub-national climate policies. By linkage, we mean a formal recognition by a greenhouse gas mitigation program in one jurisdiction (a regional, national, or sub-national government) of emission reductions undertaken in another jurisdiction for purposes of complying with the first jurisdiction’s mitigation program. We examine how a future international policy architecture could help facilitate the growth and operation of a robust system of international linkages of regional, national, and sub-national policies. Several design elements merit serious consideration for inclusion in the Paris agreement, either directly or by establishing a process for subsequent international elaboration. At the same time, including detailed linkage rules in the core agreement is not desirable because this could make it difficult for rules to evolve in light of experience