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Transnationalism, Unilateralism and International Law

Published online by Cambridge University Press:  21 December 2011

Gregory Shaffer  and
Daniel Bodansky
Gregory Shaffer
Affiliation:
University of Minnesota Law School, Minneapolis, MN, United States. Email: shaffer@umn.edu. We thank Lynn Parins for his research assistance. All errors are our own.
Daniel Bodansky
Affiliation:
Arizona State University, Sandra Day O’Connor College of Law, Tempe, AZ, United States. Email: Daniel.Bodansky@asu.edu.
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Abstract

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.

Keywords

Transnational lawTransnational legal processInternational environmental lawUnilateralismClimate change

Information

Type
Invited Article
Information
Transnational Environmental Law , Volume 1 , Issue 1 , April 2012 , pp. 31 - 41
Copyright
Copyright © Cambridge University Press 2011

We have long lived in an age of transnationalism, but transnational processes have intensified with economic and cultural globalization following the fall of the Berlin Wall. Those processes often involve unilateral action and thus have an uneasy relationship with international law.Footnote 1 This essay, for the launching of the journal Transnational Environmental Law, first sets forth a concept of transnational environmental law that encompasses, but is broader than, international environmental law. It then 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.

When we speak of transnational 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. International environmental law, formally speaking, primarily involves treaties among states and secondarily customary international law and general principles of international law. Our concept of transnational environmental law thus subsumes international environmental law, since the latter necessarily involves the application of legal norms across national jurisdictions.

The concept of transnational environmental law, however, is much broader than that of international environmental law. Transnational environmental law encompasses all environmental law norms that apply to transboundary activities or that have effects in more than one jurisdiction. By legal norms, we refer broadly to those that lay out behavioural prescriptions issued by an authoritative source in a written form, whether or not mandatory or backed by a dispute settlement or other enforcement system.Footnote 2 The concept of transnational environmental law thus includes national environmental regulation that has horizontal effects across jurisdictions – for example, by providing regulatory models to other countries or by applying to or affecting the behaviour of producers and consumers within them. It also includes the development of standards by private actors that have effects across borders, such as through product certification and labelling regimes. In practice, the transnational environmental law process sometimes includes international law as part of a single diachronic law-making process, but oftentimes does not.

Given the increasing importance of transnational environmental law, it is very timely to create a journal dedicated to assessing its operation from both a substantive and a procedural perspective. Substantively, transnational environmental law has major effects across borders. Procedurally, it often affects constituencies having little or no input in its formation, raising questions of its legitimacy.

Transnational environmental law is substantively needed, among other reasons, because the processes of international treaty negotiation and custom formation can be slow and ponderous. Even when concluded, they often result in weak standards, which commit states to do little if anything more than they intended to do anyway.Footnote 3 The effectiveness of international environmental law, moreover, depends on implementation, which is far from guaranteed. Even when the provisions of a treaty are formally enacted into national law, their effectiveness may remain in question since different actors hold sway at the stage of actual implementation – the law-in-action – than at the international negotiation and national enactment stages. For environmental advocates the processes of international environmental law can thus be quite frustrating – especially in a world in which fisheries deplete, potable water diminishes, species vanish, the air fouls, the ozone layer thins, and the atmosphere warms. Transnational environmental law and legal processes become of interest because they require neither formal adoption of a treaty with meaningfully restrictive rules and broad adherence, nor formal recognition and enforcement by courts of customary international law.

Transnational environmental law can take many forms. Often, it involves cooperative action among states – for example, to mutually recognize each others’ licences and permits,Footnote 4 or to develop jurisdictional rules allocating disputes to one state or another. The growing recognition in the 1970s of transboundary environmental effects led to attempts in both Europe and North America to remove barriers to the adjudication of transboundary environmental disputes in national courts, and to ensure that transboundary environmental effects were considered as part of a country’s regulatory and administrative decision-making.Footnote 5

Transnational environmental law can also be the product of mimicry. Other countries frequently model their laws on those of the United States (us) or the European Union (eu).Footnote 6 They may do so to ensure access to us and eu markets, but they also may do so simply because it is easier to adopt a rule already developed through relatively sophisticated technical administrative processes than to try to reinvent environmental regulation without the benefit of the expertise and experience present in the us and Europe. In the 1970s, for example, many countries adopted environmental impact assessment requirements modelled on those in us law.Footnote 7 Some scholars argue that the growing convergence of environmental laws around the world resulting from common functional demands, expert networks and the spread of ‘world culture’Footnote 8 is creating a ‘global environmental law’Footnote 9 – another variety of transnational environmental law.

Although these types of transnational environmental law do not involve domination by one state over another, other types have a more unilateral character. In some cases, states have little choice but to adopt the environmental standards of dominant market actors such as the United States and the European Union. In other cases, powerful states apply their national environmental standards extraterritorially, effectively imposing their standards on others. In both types of case, transnational legal processes are catalyzed by unilateral action.

Because of their economic weight, unilateral action by the eu and the us often leads to the creation of transnational environmental law. Take, for example, the regulation of chemicals. The eu passed a regulation in 2006 known as reach,Footnote 10 which created new and more stringent requirements for chemicals to be sold in the eu market – requirements that significantly exceed those in the us and anywhere else in the world.Footnote 11 The result has been pressure to leverage up regulation and production practices for chemicals beyond the eu, without any international agreement.Footnote 12 Similarly, countries and companies around the world have been pressed to tailor their approval and marketing of genetically modified grain varieties to eu approvals because of the importance of the European market in a world in which grains cannot easily be segregated.Footnote 13

Powerful states can also exercise clout through unilateral environmental regulations that have extraterritorial implications. For example, the United States has unilaterally restricted, albeit indirectly, the use of purse seine nets in the Eastern Tropical Pacific (etp) tuna fishery, which inadvertently kill dolphins, and shrimp trawler nets that inadvertently drown endangered sea turtles.Footnote 14 In each case, the us barred the import into its market of tuna and shrimp unless the sea food in question was effectively caught using us-prescribed methods. These restrictions continue to exert pressure on tuna-fishing and shrimp-catching processes abroad to make them more protective of marine mammal species. In each case, the us unilateral action spurred some international treaty negotiations. However, in the shrimp trawler case, the us entered an Inter-American Convention for the Protection and Conservation of Sea Turtles,Footnote 15 but not one for other countries affected by the us regulatory restrictions, in particular Asian countries.Footnote 16 In the case of the regulation of purse seine nets in the etp, the us negotiated and signed a multilateral treaty,Footnote 17 but has continued to disadvantage imports of tuna from the etp, regardless of compliance with the agreement, by prohibiting the labelling of etp tuna as ‘dolphin safe’.Footnote 18

Private groups can effectively take advantage of the huge us and eu markets to transnationally leverage up regulation, as David Vogel showed in his classic work, Trading Up.Footnote 19 Vogel looked particularly at the regulation of food safety, chemical safety, waste disposal and automobile emissions. He demonstrated how more stringent regulation in a large market led large companies to adapt to that regulation, providing them with a competitive advantage and shaping their lobbying interests in other jurisdictions considering such regulatory changes. The result was to promote the dissemination of stricter environmental regulation across borders. He and others call this process ‘the California effect’ in light of California’s frequently leading role as a regulatory vanguard within the United States. Transnational environmental law, he shows, is spurred by unilateral action within a regulatory jurisdiction exercising market power.

Environmental activists may similarly operate as transnational norm entrepreneurs,Footnote 20 sometimes creating their own private regimes in the absence of relevant international or national law. Groups such as the World Wildlife Fund (wwf) have been central to the development of labelling, certification and monitoring regimes. For example, the wwf took the lead in developing forest stewardship principles,Footnote 21 following the failure of states to reach an agreement at the Rio Conference ‘Earth Summit’ in 1992 and the weak International Tropical Timber Agreement (itta) of 1994.Footnote 22 These private initiatives sometimes compete with each other and can be bolstered by state action that references them, funds them or otherwise provides support.Footnote 23 Examples of other transnational private environmental law regimes restricting industry operations include the Marine Stewardship Council (msc) rules on sustainable fisheries, which Walmart has pledged to follow in its purchasing,Footnote 24 and the World Commission on Dams (wcd), which has issued guidelines and recommendations for dam construction.Footnote 25

Non-governmental environmental advocacy groups can leverage the market power of consumers in large countries to pressure companies to accept these ‘voluntary’ standard-setting regimes. In the tuna–dolphin case, the major us brand companies for canned tuna initially adopted strict labelling requirements because of the threat of consumer boycotts organized by environmental groups, and these environmental groups then successfully pushed for new us legislation (without the companies’ opposition), which Congress passed under the Dolphin Protection Consumer Information Act of 1990.Footnote 26 Similarly, Home Depot agreed to buy wood that is certified as meeting the Forest Stewardship Council (fsc) standards after it was threatened with a consumer boycott.Footnote 27 The various boycotts advocated by environmental groups against purchases of Icelandic fish products have had a different target – not the fishing industry itself, but rather the Icelandic government’s whaling policy.Footnote 28

Often, transnational environmental action may depend on the interests of large industry in a powerful jurisdiction, a secret of the success of transnational environmental law. The Montreal Protocol on Substances that Deplete the Ozone LayerFootnote 29 is a prime example in international environmental law, where DuPont developed a comparative advantage in developing chemical alternatives to ozone-depleting chlorofluorocarbons (cfcs), facilitating international legal action because of corporate support.Footnote 30 Similarly, to be effective, forest stewardship and mining principles must be supported by industry. These processes are not always fully transparent; northern-based non-governmental organizations (ngos) may use the leverage of us and eu market access to find allies in northern industry to advance transnational environmental aims without heeding the interests and priorities of developing country constituencies.Footnote 31

Because transnational environmental law often involves the imposition of rules by one actor on another – whether by the state itself or by industry or private ngos leveraging a state’s market power – it can raise questions of legitimacy. Both of us have written on this issue, whether in terms of the legitimacy of international environmental law-making,Footnote 32 or on the challenges confronting developing countries regarding the intersection of trade and environment issues.Footnote 33

All legitimacy problems are not created equal. The different variants of transnational environmental law raise different levels of concerns. Transnational environmental law based on mimesis is relatively unproblematic. Diffusion of eu or us environmental standards as a result of their market dominance raises greater concerns, even though liberalism has traditionally been more troubled by the imposition of political than economic power. Projection by a state of its norms to production activities outside its borders raises still greater legitimacy concerns, since in such cases a state is purporting to govern actors that do not have a voice in its political processes – although, even here, these concerns may be mitigated, at least partially, to the extent that a state is acting to promote community rather than national interests.

At first glance, traditional consent-based international environmental law may appear superior, from a legitimacy standpoint, to transnational environmental law processes that are not grounded in consent. However, all environmental governance tools with transnational implications are highly imperfect. They thus must be compared in terms of their trade-offs, substantively and procedurally. When comparing transnational environmental law (often stemming from unilateral action) with international environmental law (based on state consent), one is not comparing a defective process against an ideal, but rather two imperfect institutional alternatives.

Action over climate change – arguably the most significant environmental issue facing the world today – provides a useful example. International environmental law, from the Kyoto ProtocolFootnote 34 to the Copenhagen Accord,Footnote 35 has largely failed to spur transnational action based on agreed norms to mitigate climate change. Transnational environmental law based on unilateral eu or us action is thus an important option. The alternative of relying on formal treaty negotiations may be too little too late to prevent dangerous climate change, and thus may be illegitimate in terms of outcomes, whether for current or future generations.

Multilateral and unilateral institutional alternatives also involve legitimacy trade-offs from a procedural perspective. Choices over voting rules raise legitimacy issues since they can give too much (or too little) power to veto players. On the one hand, there is a powerful argument that multilateral decision-making not based on consensus would be illegitimate as it would impose obligations and restrictions on states without their consent, violating the grundnorm of sovereignty, and the collective right of decision-making of a people (or demos).Footnote 36 Issues over climate change policy involve major distributive implications for states and for constituencies within them, raising procedural legitimacy concerns if obligations can be imposed on states through a multilateral process without their consent.

On the other hand, global public goods (such as stabilizing the earth’s climate) may demand procedural innovations so that a minority cannot procedurally block effective action. Filibuster rules in the us Senate provide an example of the legitimacy issues raised by procedure, since they grant a minority of senators from less populated us states the ability to block action favoured by majorities.Footnote 37 Similarly, multilateral procedural rules requiring agreement by consensus permit a single state or subset of states to impinge on the ability of others to take action, especially in light of collective action and free-rider concerns. If a veto not only had the effect of blocking multilateral action but also meant that states may not take non-discriminatory unilateral action, the states that wish to act are not only adversely affected substantively; they effectively lose their ability to develop policies to protect their environmental interests.Footnote 38 In these circumstances, permitting some forms of unilateral action, subject to principled substantive and procedural constraints (such as non-discrimination and due process) may be superior (even if highly imperfect) from a comparative institutional perspective.Footnote 39

Given the us rejection of the multilateral Kyoto Protocol and the eu’s key role in advancing it, the eu arguably has a legitimate case for taking unilateral initiatives on the climate change issue at this time. The eu began to take unilateral action on airline emissions, a major contributor to climate change, when it adopted a Directive to include emissions from international flights in the eu Emissions Trading Scheme, effective from 1 January 2012.Footnote 40 Under the legislation, the eu will give airlines a limited number of tradable allowances for their flights into and out of the European Union. If an airline’s emissions are lower than its allowances, it can sell or bank its surplus allowances; if its emissions are anticipated to be higher than its allowances, it must then either reduce its emissions or buy additional allowances through the European emissions trading system. A consortium of us airlines has sued to enjoin eu action before a United Kingdom (uk) administrative court, which referred the legal questions to the Court of Justice of the European Union (ecj).Footnote 41 The consortium claims that the eu proposal (1) violates customary international law by regulating carbon dioxide (co2) emissions outside eu airspace; (2) violates the Kyoto Protocol, which directed that emissions from international aviation be addressed by the International Civil Aviation Organization rather than through unilateral action; and (3) violates the 1944 Convention on International Civil AviationFootnote 42 and the eu-us ‘Open Skies Agreement’,Footnote 43 which limit the charges that states can impose on flights.Footnote 44 If international law, however, impedes the eu from taking non-discriminatory steps to reduce emissions, then from the perspective of climate change mitigation, it is international law that could be viewed as the problem. The eu’s action may well be an important, albeit small, step in achieving the necessary level of emissions reductions to stabilize the earth’s climate.

International law has a critical but delicate role to play, as part of the transnational environmental law process, in disciplining unilateral action. Unilateral action can often be tailored to benefit national economic interests over foreign ones, bestowing a competitive advantage on particular states and their constituencies, especially powerful ones. International law can press a state to justify its actions and re-evaluate them in light of their impacts on others. It can induce a state to clarify and explain its environmental goals, address whether there are regulatory alternatives sufficient to meet those goals that are more amenable to third party concerns and, if so, to modify its initiatives. The World Trade Organization (wto), through its Appellate Body’s interpretation of wto legal provisions, plays a key role in this regard.Footnote 45 The wto does not forbid unilateral environmental regulatory action but it does press countries to justify their actions substantively and procedurally or face potential trade sanctions. For example, wto rules are likely to permit unilateral regulation of greenhouse gas emissions (especially when a country has engaged in multilateral processes in good faith and these processes have stalemated), but such regulation must be applied in a non-discriminatory manner and meet procedural safeguards of transparency and due process.Footnote 46

Unilateral action is not a one-step dance. It is better viewed as part of a dynamic process of action and reaction, reassessment and response, in which international law plays an uneasy role as both a check and a potential consolidator. International law needs to discipline (or, better stated, provide guidelines for) unilateral action, as part of this dynamic process. But, as with all matters, the trick is to get the balance right: there should be neither too little constraint, which would permit discriminatory and opportunistic policies, nor too much constraint, which would impede needed action.

The impact of unilateral action ultimately depends on whether it is persuasive in shaping norms of behaviour. Perceptions of legitimacy will often determine its effectiveness. Where a rule or norm advanced unilaterally is deemed to be illegitimate, it will spur greater resistance, including challenges under wto and other international law, undermining its effectiveness. That resistance can spur re-articulations of legal norms and rules as part of a recursive process.Footnote 47 In contrast, where unilateral action contributes to the forging of a new consensus that results in the adoption and application of common environmental law norms, it can create a transnational legal order, either in the form of international environmental law or more informal institutional settlement.Footnote 48 Unilateral action creates risks. But where there are risks, there are also opportunities.

References

1 For a more general discussion of unilateralism in international environmental law, see Bodansky, D., ‘What’s So Bad about Unilateral Action to Protect the Environment?’ (2000) 11 European Journal of International Law, pp. 339–48.CrossRefGoogle Scholar

2 Cf. G. Shaffer, ‘Transnational Legal Process and State Change’, (forthcoming 2011) 36 Law & Social Inquiry, working paper version available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1901952 (from which this definition is taken); T.C. Halliday, ‘Recursivity of Global Lawmaking: A Sociolegal Agenda’ (2009) 5 Annual Review of Law and Social Science, pp. 263–90 (‘norms in this article refer to formalized codifications of behavioral prescriptions that are accepted by subjects as legitimate and authoritative’); and Bodansky, D., The Art and Craft of International Environmental Law (Harvard University Press, 2010)Google Scholar, at Ch. 5 (categorizing environmental norms in terms of five dimensions: purposiveness, consent, mandatory quality, precision, and implementation and compliance mechanism).

3 Downs, G., Rocke, D.M. & Barsoom, P.N., ‘Is the Good News about Compliance Good News about Cooperation?’ (1996) 50(3) International Organization, pp. 379–406.CrossRefGoogle Scholar

4 Sand, P.H., ‘Lessons Learned in Global Environmental Governance’ (1991) 18(2) Boston College Environmental Affairs Law Review, pp. 213–77, at 251–4.Google Scholar

5 Organisation for Economic Co-operation and Development, Legal Aspects of Transfrontier Pollution (OECD, 1977).

6 Braithwaite, J. & Drahos, P., Global Business Regulation (Cambridge University Press, 2000), at pp. 285–92.Google Scholar

7 Sand, n. 4 above, at p. 256.

8 Frank, D.J., Hironka, A. & Schofer, E., ‘The Nation-State and the Natural Environment over the Twentieth Century’ (2000) 65(1) American Sociological Review, pp. 96–116CrossRefGoogle Scholar, at 101–5. See generally Friedman, L.M., ‘Erewhon: The Coming Global Legal Order’ (2001) 37(1) Stanford Journal of International Law, pp. 347–64Google Scholar, at 348–9 (describing the effect of global culture on international business and human capital).

9 Yang, T. & Percival, R.V., ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly, pp. 615–64Google Scholar, at 626. See also Holzinger, K., Knill, C. & Sommerer, T., ‘Environmental Policy Convergence: The Impact of International Harmonization, Transnational Communication and Regulatory Competition’ (2008) 62(4) International Organization, pp. 553–87, at 556–60.CrossRefGoogle Scholar

10 Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorisation and Restriction of Chemicals (reach) and establishing a European Chemicals Agency [2007] OJ L136/3, (reach Regulation).

11 See Scott, J., ‘From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction’ (2009) 57(4) American Journal of Comparative Law, pp. 897–942, at 898–9.CrossRefGoogle Scholar

12 Cf. Heyvaert, V., ‘Globalizing Regulation: Reaching Beyond the Borders of Chemical Safety’ (2009) 36(1) Journal of Law and Society, pp. 110–28CrossRefGoogle Scholar, at 112 (noting EU promotion of the global adoption of reach); and Naiki, Y., ‘Assessing Policy Reach: Japan’s Chemical Policy Reform in Response to the EU’s reach Regulation’ (2010) 22(2) Journal of Environmental Law, pp. 171–95, at 172–3.CrossRefGoogle Scholar

13 Pollack, M. & Shaffer, G., When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford University Press, 2009), at pp. 262–6 and 296.CrossRefGoogle Scholar

14 See Knox, J.H., ‘The Judicial Resolution of Conflicts between Trade and the Environment’ (2004) 28(1) Harvard Environmental Law Review, pp. 1–78, at 33–4Google Scholar; Parker, R.W., ‘The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn from the Tuna-Dolphin Conflict’ (1999) 12(1) Georgetown International Environmental Law Review, pp. 1–122Google Scholar, at 6 (describing the US’ unilateral action to reduce dolphin mortality from tuna fishing); and G. Shaffer, ‘Power, Governance and the WTO: A Comparative Institutional Approach’, in Barnett, M. & Duvall, B. (eds.) Power in Global Governance (Cambridge University Press, 2004), pp. 130–60, at 130 and 152.CrossRefGoogle Scholar

15 Caracas (Venezuela), 1 Dec. 1996, in force 2 May 2001, available at: http://www.iacseaturtle.org.

16 An Indian Ocean–South-East Asian Marine Turtle Memorandum of Understanding (iosea–mou) was signed, under the auspices of the Convention on Migratory Species of Wild Animals (cms), but it has yet to lead to a treaty with legal commitments. The MoU text is available at: http://www.cms.int/species/iosea/IOSEAturtle_mou.htm. See further Shaffer, n. 14 above; and L. de La Fayette & B.H. Oxman, ‘United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia’ (2002) 96(3) American Journal of International Law, pp. 685–92, at 688 at n. 25.

17 Agreement on the International Dolphin Conservation Program (idcp), Washington, DC (US), 15 May 1998, in force 15 Feb. 1999, available at: http://www.iattc.org/IDCPENG.htm.

18 The idcp (ibid.), adopted in 1998 by the US and a number of Latin American states, made binding the previously voluntary arrangements to limit dolphin mortality in the tuna purse seine fishery in the etp. The US, however, still applies a ‘dolphin safe’ labelling regime that prohibits tuna fished with purse seine nets in the etp from being sold with the label ‘dolphin safe’, even if the tuna was caught in compliance with the idcp Agreement, despite a US undertaking to revise its labelling regulations. Mexico brought a claim against the US before the wto on account of the impact on Mexican-caught tuna, which it won at the panel stage. See Pruzin, D., ‘WTO Panel Issues Final Ruling on U.S. Rules for Tuna Labeling’ (2011) 28International Trade Reporter, p. 1182.Google Scholar

19 Vogel, D., Trading Up: Consumer and Environmental Regulation in a Global Economy (Harvard University Press, 1995), at pp. 5–8.Google Scholar

20 See Keck, M.E. & Sikkink, K., Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press 1998), at pp. 2–3.Google Scholar

21 Cashore, B., Egan, E., Auld, G. & Newsom, D., ‘Revising Theories of Nonstate Market-Driven (nmsd) Governance: Lessons from the Finnish Forest Certification Experience’ (2007) 7(1) Global Environmental Politics, pp. 1–44, at 3–4CrossRefGoogle Scholar; and Long, A., ‘Global Climate Governance to Enhance Biodiversity and Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests’ (2011) 41(1) Environmental Law, pp. 95–164, at 113–14.Google Scholar

22 Geneva (Switzerland), 26 Jan. 1994, in force 1 Jan. 1997. The itta of 1994 superseded the itta of 1983, and will in turn be superseded by the itta of 2006 as soon as this enters into force. All agreements available at: http://www.itto.int.

23 See, e.g., Meidinger, E., ‘The Administrative Law of Global Private-Public Regulation: The Case of Forestry’ (2006) 17 European Journal of International Law, pp. 47–87CrossRefGoogle Scholar, at pp. 59–60. See generally Cashore, B., Gale, F., Meidinger, E. & Newsom, D. (eds.), Confronting Sustainability: Forest Certification in Developing and Transitioning Countries (Yale School of Forestry & Environmental Studies, 2006)Google Scholar, at pp. 203, 235, 303, 363 (providing case studies of governmental adoption of private certification requirements in Latvia, Poland, Bolivia and Guatemala, respectively).

24 See Vandenbergh, M.P., ‘The New Wal-Mart Effect: The Role of Private Contracting in Global Governance’ (2007) 54 UCLA Law Review, pp. 913–70Google Scholar, at 927–8 (describing Wal-Mart’s pledge to source fish from msc-certified suppliers).

25 See Dingwerth, K., ‘The Democratic Legitimacy of Public–Private Rule Making: What Can We Learn from the World Commission on Dams?’ (2005) 11(1) Global Governance, pp. 65–83Google Scholar, at 66 (describing the formation of the wcd as a case study ‘for learning about the legitimacy of global rule making’).

26 16 U.S.C. 1361. See K.L. Stewart, ‘Dolphin-Safe Tuna: The Tide is Changing’ (1998), 4 Animal Law, pp. 111–36, at 117–8; and Parker, n. 14 above, at pp. 32–3.

27 Büthe, T. & Mattli, W., The New Global Rules: The Privatization of Regulation in the World Economy (Princeton University Press, 2011), at p. 28.Google Scholar

28 See, e.g., ‘Protest over Iceland’s Whaling Plans’, BBC News, 15 August 2003, available at: http://news.bbc.co.uk/2/hi/science/nature/3152489.stm; Campaign Whale, ‘Stop Iceland’s Whale Killers’, available at: http://www.campaign-whale.org/campaigns/stop-icelands-whale-killers (last visited 25 Aug. 2011). Greenpeace also organized consumer boycotts against Norway: see McIvor, G., ‘Boycott of Norwegian Fish Products Starts in Australia’, Agence France Presse, 16 Aug. 1993Google Scholar; ‘Economic Sanctions Needed to Halt Norwegian Whaling, Environmentalists Say’, International Environmental Reporter, BNA, 19 Nov. 1992. For other examples of transnational product boycotts (or threatened ones) that spurred industry to tighten environmental self-regulation, see Keck & Sikkink, n. 20 above, at p. 133; Osofsky, H.M. & Levin, J.K., ‘The Scale of Networks?: Local Climate Change Coalitions’ (2008) 8 Chicago Journal of International Law, pp. 409–36Google Scholar, at 412–3; Mertus, J., ‘From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transnational Society’ (1999) 14 American University International Law Review, pp. 1335–89Google Scholar, at 1353–54; and Shaffer, G., ‘The World Trade Organization under Challenge: Democracy and the Law and Politics of the WTO’s Treatment of Trade and Environment Matters’ (2001) 25 Harvard Environmental Law Review, pp. 1–93, at 57.Google Scholar

29 Montreal (Canada), 16 Sept. 1987, in force 1 Jan. 1989, available at: http://ozone.unep.org/new_site/en/montreal_protocol.php.

30 Sunstein, C.R., ‘Of Montreal and Kyoto: A Tale of Two Protocols’ (2007) 31(1) Harvard Environmental Law Review, pp. 1–65, at 14–5.Google Scholar

31 See, e.g., Vogel, n. 19 above, at p. 112; Shaffer, n. 28 above, at pp. 83–4.

32 Bodansky, D., ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law’ (1999) 93(3) American Journal of International Law, pp. 596–624, at 605.CrossRefGoogle Scholar

33 See Shaffer, n. 28 above, at p. 24; and Shaffer, n. 14 above.

34 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto (Japan), 10 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php.

35 UNFCCC COP Decision 2/CP.15, Copenhagen (Denmark), 18 Dec. 2009, available at: http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf#page=4.

36 Cf. Alvarez, J.E., ‘Contemporary International Law: An “Empire of Law” or the “Law of Empire”?’ (2009) 24(5) American University International Law Review, pp. 811–24Google Scholar, at 825–6 (UN Security Council as ‘legislating hegemony’); Helfer, L.R., ‘Nonconsensual International Lawmaking’ (2008) 102(1) University of Illinois Law Review, pp. 71–125Google Scholar, at 115; Jackson, J.H., ‘Sovereignty-Modern: A New Approach to an Outdated Concept’ (2003) 97(4) American Journal of International Law, pp. 782–802CrossRefGoogle Scholar, at 795–6; and Weiler, J.H.H., ‘The Transformation of Europe’ (1991) 100 Yale Law Journal, pp. 2403–83CrossRefGoogle Scholar, at 2472–4 (on legitimacy issues in EU decision-making).

37 See, e.g., Magliocca, G.N., ‘Reforming the Filibuster’ (2011) 105(1) Northwestern University Law Review, pp. 303–28Google Scholar (‘The most troubling countermajoritarian difficulty in modern constitutional law is Rule Twenty-Two of the United States Senate. Forty-one senators, who could represent less than forty-one percent of the population due to the malapportionment of the Senate, can veto most legislation and presidential nominations by refusing to invoke “cloture”. A vote against cloture by that Senate minority sustains debate indefinitely as a filibuster.’, at pp. 303–4).

38 Cf. Sunstein, n. 30 above, at pp. 5–9 (contending that unilateral action was in the US interest in terms of ozone protection but not in terms of climate change policy); and Freeman, J. & Guzman, A., ‘Climate Change and U.S. Interests’ (2009) 109 Columbia Law Review, pp. 1531–1601Google Scholar, at 1542 (contending that unilateral action by the US is likely to be in the US interest despite the multilateral stalemate).

39 See generally Komesar, N., Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (University of Chicago Press, 1997)Google Scholar; and Shaffer, G. & Trachtman, J., ‘Interpretation and Institutional Choice at the WTO’ (2011) 52(1) Virginia Journal of International Law, pp. 103–53.Google Scholar

40 Directive 2008/101/EC of 19 Nov. 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2009] OJ L8/3.

41 Case C-366/10, The Air Transport Association of America and Others v. The Secretary of State for Energy and Climate Change, judgment pending. Opinion by A-G Kokott delivered on 6 Oct. 2011.

42 Chicago, IL (US), 7 Dec. 1944, in force 4 Apr. 1947, available at: http://www.icao.int/icaonet/dcs/7300.html.

43 Air Transport Agreement between the US and EU 2007 (‘Open Skies Agreement’), Washington, DC (US), 30 Apr. 2007, in force 30 Mar. 2008, available at: http://www.state.gov/e/eeb/tra/ata.

44 Rosenthal, E., ‘U.S. and Europe Battle over Carbon Fees for Airlines’, New York Times, 27 July 2011Google Scholar; and Bisset, M. & Crowhurst, G., ‘Is the EU’s Application of its Emissions Trading Scheme to Aviation Illegal?’ (2011) 23(3) Air and Space Law, pp. 1–18Google Scholar, at 3. In addition, legislation was introduced in the US House of Representatives that would prohibit US airlines from participating in the EU emissions trading scheme: ‘European Union Emissions Trading Scheme Prohibition Act of 2011’ H.R. 2594, 112th Congress (2011).

45 See Shaffer & Trachtman, n. 39 above.

46 World Trade Organization (wto) and United Nations Environment Programme (unep), Trade and Climate Change (WTO, 2009), at pp. 109–10; J. Pauwelyn, ‘U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law’, (2007) Working Paper 07/02, Nicholas Institute for Environmental Policy Solutions, Duke University, pp. 1–44, at 34, available at: http://nicholasinstitute.duke.edu/climate/policydesign/u.s.-federal-climate-policy-and-competitiveness-concerns-the-limits-and-options-of-international-trade-law; G.C. Hufbauer, S. Charnovitz & J. Kim, Global Warming and the World Trading System (Peterson Institute, 2009).

47 Halliday, n. 2 above.

48 Shaffer, n. 2 above, at p. 3 (‘Where the transnational legal norms are relatively clear, coherent and accepted, the transnational legal order can be viewed in systematic terms. Where they are less so, the transnational legal order is more contingent and fragile.’).