Learning to Live with Losing: International Environmental Law at the New Millennium
UVA Law Faculty Affiliations
Written before the Hague negotiations on climate change held in November of 2000 (the so-called "COP-6" meeting), this essay argues that the COP-6 will fail to work out important issues left unresolved by the Kyoto Protocol, such as participation by developing countries, emissions trading, and non-compliance procedures. This failure is especially disturbing because of its occurrence at such an early stage in the cooperative process - before a meaningful, well-specified treaty on the subject enters into force, and before even a proposed text can be agreed upon with respect to crucial aspects of the endeavor. The essay then argues that the failure at the COP-6 meeting is likely to lead to the failure of the entire current approach to international cooperation on climate change, and that this failure will have resulted chiefly from two complexities: the technical complexity of the issue and the political complexity flowing from an intricate set of cross-cutting bargaining cleavages among nations. The essay argues that a similar structure of technological and political complexity is likely to be present with respect to other 21st-century international environmental problems, such as biodiversity, genetic modification of organisms, and population growth. Success in the climate-change arena and these other arenas is therefore likely to require either a great deal of patience or a new approach to international environmental cooperation. The essay ends by exploring a few alternative approaches to the currently dominant cooperative paradigm of formal, detailed, legally binding international agreements.