The United States and International Environmental Law: Living with an Elephant

For many observers, the US decision in 2001 to abandon the Kyoto Protocol to the United Nations Framework Convention on Climate Change encapsulates an alarming trend in American attitudes towards international environmental law. This article explores recent trends in US approaches. It begins by canvassing the trajectory of US practice since around the time of the 1992 Earth Summit in Rio. This review suggests that some shifts in legal avenues for shaping relevant policy agendas have indeed occurred, but that it would be a mistake to treat one event — the US withdrawal from Kyoto — as representative of the nature of these shifts. It then examines a range of possible explanations for the changing US approach to international environmental law. These include factors related to the growth of treaty regimes and institutional structures, factors related to American power, domestic politics and attitudes towards international law, and factors specifically related to the administration of George W. Bush. Both the review of US practice and the assessment of factors that might account for American policy suggest that the international environmental law community must carefully distinguish short-term developments from longer-term trends. Living next to you is in some ways like sleeping with an elephant.No matter how friendly and even-tempered is the beast, if I can call it that,one is affected by every twitch and grunt. Pierre Elliott Trudeau Our country, the United States is the world’s largest emitter of manmade greenhouse gases. We account for almost 20 percent of the world’s man-made greenhouse emissions. We also account for about one-quarter of the world’s economic output. We recognize the responsibility to reduce our emissions. We also recognize the other part of the story — that the rest of the world emits 80 percent of all greenhouse gases. And many of those emissions come from developing countries. This is a challenge that requires a 100 percent effort; ours, and the rest of the world’s. The world’s second-largest emitter of greenhouse gases is China. Yet, China was entirely exempted of the Kyoto Protocol.... India was also exempt from Kyoto.... [The] Kyoto [Protocol] is, in many ways, unrealistic. Many countries cannot meet their Kyoto targets. The targets themselves were arbitrary and not based upon science. For America, complying with those mandates would have a negative economic impact, with layoffs of workers and price increases for consumers. And when you evaluate all these flaws, most reasonable people will understand that it’s not sound public policy.... Yet, America’s unwillingness to embrace a flawed treaty should not be read by our friends and allies as any abdication of responsibility. To the contrary, my administration is committed to a leadership role on the issue of climate change. President George W. Bush

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