This article will argue that a new norm of compliance with agreements is becoming customary with regard to the global environmental commons, particularly in the case of climate change and U.S. behavior towards the Kyoto Protocol. While the United States’ repudiation of its signature on the Protocol in 2001 was legal under the practice of traditional international law, this same practice is no longer sufficient in scope or in time to keep pace with the rapid advances in our scientific understanding of global environmental processes. Because every member of the international community can suffer significant harm from climate change, the presumption of compliance with restrictions on greenhouse gases is emerging as a customary norm of international law. Section I of this article will determine whether the United States has any outstanding legal obligation to reduce greenhouse gases under either the United Nations Framework Convention on Climate Change or the Kyoto Protocol. Section II will examine the common understanding of how customary norms of international law are formed and whether the United States is bound by these norms to take steps to reduce greenhouse gases in lieu of an explicit agreement. Section III will consider why the United States is continuing to remain an exceptional nation under this norm and whether its arguments for not participating in the regime are legally and politically valid. Section IV will examine any levers to compliance with the global environmental regime that custom may provide. Finally, this article will examine directions for future legal consideration of global environmental norms.
- climate change,
- customary international law,
- jus cogens
Available at: http://works.bepress.com/elizabeth_chalecki/1/