Legal Commentary

This will be my last post for a while, and I want to thank Dan for this opportunity to guest blog in November.  I'm on research leave this semester, so I can't complain about preparing and grading exams.  But blogging was a welcome addition to my article writing this semester.

Before I sign off, I wanted to mention a post that Kenneth Anderson has over at Volokh Conspiracy on why the upcoming Copenhagen climate conference is doomed to failure.  It seems there's just no way to overcome the inherent collective action problems in negotiating a climate treaty:

Anderson is too pessimistic.  After all, over 180 countries have already agreed to two prior climate treaties (The UN Framework Convention in 1992 and the Kyoto Protocol in 1997), as well detailed rules for implementation (Marrakech Accords in 2001), all of which are currently being implemented.  The UN Framework Convention remains the organizing document for continued international efforts to address climate change, and the majority of industrialized parties to Kyoto are expected to comply with their Kyoto commitments by the end of the first commitment period, in 2012 (with some notable exceptions, such as Canada).  The EU-15 are on track to exceed their Kyoto commitments by 2012.   Reports of the death of Kyoto are greatly exaggerated. 

So why would any country agree to, let alone comply with, obligations that impose near-term national costs but bring longer-term benefits to the globe as a whole?  Let me count the ways:

• Self-interest in avoiding drought, sea-level rise, and hundred-degree summers
• A recognition that this particular prisoners dilemma calls for global cooperation rather than defection, coupled with the recognition that emissions monitoring can detect violators.
• A recognition of the historic responsibility of industrialized nations for the underlying problem
• Domestic political pressure not to tank a climate deal
• Reputational costs for major emitting countries for tanking a climate deal
• A recognition that a national commitment to energy efficiency and a low-carbon economy benefits national security and international competitiveness.
• The opportunity to participate in lucrative global carbon trading markets as a party to a post-Kyoto treaty.
• Translation of commitments made internationally into binding domestic legislation, as occurred in the EU.

I'm not saying that negotiations at Copenhagen will be easy, and few expect a final treaty to emerge from the conference -- just that the underlying collective action problems here are not insurmountable.  I do expect a new international treaty to be concluded by the time the Kyoto Protocol's first commitment period ends in 2012.  The price of every nation going-it-alone here is very, very high.