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The Environmental Law Reporter


The George W. Bush administration's refusal to deal seriously with the problem of global warming, perhaps the greatest environmental problem of our time, requires that the international community think seriously about alternative ways of inducing or even compelling the United States to meet its global responsibilities. One strategy being considered is litigation. There are a variety of forms that global warming litigation could take. Plaintiffs harmed by global warming could bring actions in U.S. federal courts against the American government. Alternatively, such plaintiffs could sue key American corporations whose conduct has a disproportionate impact on global warming inside U.S. or foreign courts. Finally, the United States itself could be called to task before an international tribunal. Last year, I explored the third possibility for the London-based New Economic Foundation. I took on the project because of my concern about global warming, but also because of my commitment, as an international law professor, to the international system. One positive aspect of globalization is that it offers the possibility that law can play an increasing role in international relations. Because of capital's desire to operate in a safe and predictable environment, transnational business interests have successfully promoted legally based regimes such as the World Trade Organization (WTO) in the economic realm. The present challenge is to build on this trend so that a system of justice can replace power politics in the management of issues related to the environment, social welfare and global security. I see resorting to the evolving international dispute resolution system to help deal with the problem of global warming as supporting the growth and development of this system.

What follows are the conclusions drawn from my work for the New Economics Foundation. It is a preliminary attempt to "brainstorm" the issues, and it is written for an audience with only a modest background in international law. I do not attempt to come to definitive conclusions, but rather I suggest avenues that might prove promising and should be subject to further study. This Article first examines certain international tribunals in which a case against the United States might be brought, with an emphasis on the International Court of Justice (ICJ), and then looks at the relevant law which could be applied in such a case.



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Environmental Law Institute



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Washington, D.C.