The Geography of Climate Change Litigation Part 2: Narratives of Nation-States and Thirdspace

Hari M. Osofsky, University of Oregon School of Law

Abstract

This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and geography narrative of climate change litigation might interact each of these accounts. Building from these narratives, it considers what would be required for a theory of international law to address simultaneously the need for and the legitimate critiques of nation-state spaces in transnational regulatory governance and the implications of such a “thirdspace” for global climate change.