The University of Chicago Law School Faculty Blog

The Bali Puzzle

The Bali negotiations have laid bare the central issue for climate treaty negotiations: who should pay for climate change.  There were two major points of dispute:

1.  Should developing countries be bound by an obligation to reduce or limit greenhouse gas emissions, or should rich countries alone make such a commitment?

2.  How should abatement costs be allocated among rich and poor countries?  In particular, how much aid should rich countries give to poor countries?

The United States (and Canada and Japan) took the reasonable position that the rich countries should commit to reducing greenhouse gas emissions and to helping the poor countries do so, only as long as the poor countries agree to limit their greenhouse gas emissions.  The developing countries (and Europe) argued that the rich countries must help the poor countries but the poor countries need not make commitments.

The final agreement is ambiguous and open-ended, not really committing anyone to anything except further discussions, research, etc.  But the gist of the agreement is that the rich countries must proceed to a discussion of their greenhouse-gas abatement commitments, and must agree to provide aid to the poor countries, while the poor countries need only consider “actions” to reduce or not to increase greenhouse gas emissions, in return for money and technological assistance from the rich.  That is to say, the poor countries agree only to act in their national self-interest.

One needs to remember that China and India are considered poor countries.  They certainly are, on a per capita basis, but not in the aggregate.  China is apparently the world’s biggest greenhouse gas emitter, and India, as it develops, will be an increasingly major contributor.  We can expect that other developing countries with enormous populations (Brazil, Indonesia, Bangladesh) will eventually join this group.  A climate treaty that omits binding commitments from these countries will do little to ameliorate the effects of climate change.  As the New York Times put it today, even if the rich countries shut down all industry immediately, the rate of global warming would be delayed only by a few decades, as the developing nations would quickly take up the slack.  And if the rich countries have bound themselves before China and India are expected to, then the latter countries will have enormous bargaining power in any further negotiations, and indeed may simply refuse to enter any agreement.

In a much-noted turn in the negotiations, American diplomats withdrew their opposition to an agreement that omitted poor-nation commitments.  This seems like a big mistake, and the White House is already backtracking.

One might reasonably ask, Why shouldn't rich nations incur the costs of climate abatement?  They are mostly responsible for causing global warming, and can most afford to fix the problem.  The answer is here.  In brief, there are better ways to help the poor than to agree to an ineffective climate treaty.

So what’s so great about Bali?  And, even more of a puzzle, what’s in it for the Europeans?  Why don’t the Europeans join the U.S. and insist that there can be no deal without China?

Redistributing Wealth Through Greenhouse Gas Abatement Efforts

In his invaluable blog, Larry Solum makes the following criticism of a paper recently posted with SSRN by me and Cass Sunstein.  His focus is our claim that unilateral or multilateral greenhouse gas abatement is not a sensible way of redistributing wealth from rich nations to poor nations.  He begins by quoting us:

It is possible that the more direct methods [of redistributing wealth from rich countries to poor countries] are inferior, for example because it is not feasible to provide that direct aid; but this argument has not been made out.

Then he makes the following argument:

It seems to me that the "feasibility" issue is, in some sense, the core of the dispute.  The salience of distributive justice to the distribution of the costs of ameliorating climate change arises because direct aid to the poor is perceived as outside the feasible choice set, whereas concentrating the burden of greenhouse gas reduction on wealthier nations is sometimes perceived as inside the feasible choice set.  Sunstein and Posner are surely right when they suggest that we really need evidence on this question, but I don't really see why their burden-shifting move is adequate.  It is their argument: shouldn't they at least attempt to provide evidence that their proffered alternative (direct aid to the poor) is inside the feasible choice set?

I think the answer is no.  Suppose, first, that that direct aid is within the feasible choice set.  (It probably is: the United States and other wealthy states already give direct aid to poor countries.  As has been frequently pointed out, the amount of aid is not great, and much but not all of it is tied to strategic interests.  Nonetheless, at least some of it appears to be purely altruistic.)  Let's call the amount of aid that is purely altruistic, and not tied to anything else, X.  If (say) the United States already gives X to poor states, and then finds itself providing additional implicit aid, Y, in the form of greenhouse gas abatement efforts, should we expect X to remain the same or go down?  If the United States has a budget, then either X will go down, offsetting Y, or there will be less spending on Americans--more likely the former.  Unless Americans either spontaneously become more generous or stop paying attention to the budget, direct aid will go down even though it is (as we explain in the paper) superior to indirect aid.

Second, consider the possibility that the United States does not give any "real" aid to other countries: it is all tied to strategic interests.  That is, direct aid is outside the feasible choice set.  If this is the case, then there is no reason to believe that such a selfish country would start giving aid in the form of disproportionate climate treaty obligations.  Why would climate change treaty negotiations convert the U.S. from a selfish state into a generous state? It is hard to see why Americans would become more altruistic than they have been in the past, in the course of determining greenhouse gas policy.  So if direct aid is outside the feasible choice state, indirect aid is as well.

The bottom line is that we assume merely that states treat different types of aid flows consistently, that is, they treat direct and indirect aid the same.  This seems like a plausible enough assumption to throw the burden of proof on those who think that, in this context, governments would systematically misunderstand the costs of their activities.

Climate Change Justice

Papua, Indonesia, says that if other countries are concerned about global warming, they should pay Papua not to cut down its forests. For Papua, short-term development is more important than the long-term cost of global warming. China has made a similar argument. Global warming is a serious problem but China has a “right to development,” and until hundreds of millions of Chinese make more than $1 per day, China is right to avoid being entangled in international climate control commitments. If the rich countries want to avoid being swamped by rising seas, they will have to pay China to cut back on greenhouse gas emissions.

The Race to the Arctic and International Law

News items:

1. On August 2, a Russian mini-sub planted a titanium flag on the seabed of the North Pole. The sub’s voyage was supposedly a part of a scientific mission to determine whether Russia’s claim to an enormous portion of the Arctic seabed is valid. But if the science is in doubt, why plant a flag?

The New Race for the Arctic

Melting polar ice and the high cost of energy are creating a new battleground at the top of the world. Yesterday a Russian mini-sub released a capsule containing a Russian flag onto the seabed at the North Pole. This was the climax of a research expedition whose purpose is to support Russia's claim to what could be billions of tons of oil and gas reserves in an area of the Arctic twice the size of France. Russia has already been setting up new military and civilian posts, such as in the Zemlya Frantsa Iosifa archipelago in the northeastern Barents Sea.

Meanwhile, Canada has reasserted its claim over the melting Northwest Passage, a portion of the Arctic Ocean linking the Atlantic and Pacific Oceans. Its recent announcement that it will build patrol vessels in order to establish sovereignty over the passage had a belligerent tone uncharacteristic of our peaceful neighbor.

Should China (and the U.S.) Be Paid To Abate Greenhouse Gas Emissions?

Suppose that a country, Y, is threatened by a natural phenomenon, such as flooding.  Y lacks the technological know-how to build sea walls, so it pays another country, Z, to build the sea walls for it.  We would not normally criticize Z for charging Y to build the sea walls, even if Y is a poor country.

Now imagine that Y and Z share the coastline.  The expected flooding imposes different costs on both countries: $90 million for Y, and $10 million for Z.  And imagine that a single flood warning system would be the most efficient way to minimize these costs.  A high-quality system would eliminate all of the losses but would cost $30 million.  A low-quality system would halve the losses but cost only $2 million.  Which system should be built?

Epstein vs. Epstein: Drug Price Subsidies

If you're planning a discussion at the University of Chicago Law School and you want a very lively debate, you ask Richard Epstein to be one of your panelists. So how could we go wrong for a Loop Luncheon on Reunion weekend by asking Richard to debate himself? On May 4 he did exactly that. The event was billed as Epstein vs. Epstein, and the topic was "Why should the U.S. subsidize the world with our high prescription drug prices?" Professor Epstein served as moderator as well, of course. If you'd like to hear the results, you can listen here.

US Involvement in the Darfur Conflict

On Wednesday, November 15, 2006, the Earl B. Dickerson Chapter of the Black Law Student Association at the University of Chicago Law School hosted a discussion on the merits of US involvement in the Darfur conflict.   Eric Posner, Kirkland and Ellis Professor of Law at the University of Chicago Law School, Jide Nzelibe, Assistant Professor of Law at Northwestern University School of Law, and Matthew Lippman, Professor at the University of Illinois, Chicago, discussed US involvement in Darfur within the legal framework governing international humanitarian intervention. You can listen to the panel discussion here.

Martha Nussbaum Talks with Akbar Gangi

Chicago Public Radio has partnered with the University of Chicago (among other organizations) in a project called Chicago Amplified. From their website: "Chicago Amplified is a Web-based audio archive filled with diverse lectures, conversations, panel discussions, forums and other educational events sponsored by community organizations and institutions throughout the Chicago region and presented here for audio streaming or download. The goal of this project is to make some of the most interesting and informative public programs taking place throughout our community widely available. Chicago Amplified allows you to listen to these events again, or discover them for the first time."

Among the University's first entries in Chicago Amplified is a conversation with Akbar Gangi and our own Martha Nussbaum. Gangi is Iran's most prominent political dissident and writer of A Republican Manifesto, laying out the basis for a full-fledged democracy in Iran. You can listen here to their conversation, and also visit the site for the University of Chicago's contributions to Chicago Amplified.

The Humanitarian War Myth

More than 40,000 Iraqi civilians have been killed since the American-led invasion of Iraq in 2003, and the rate at which civilians die has been increasing in recent months. Many thousands of innocent Iraqis have been detained, and some have been abused by American troops. Many others have been tortured or killed by Iraqi police. Basic services have been lacking in large portions of the country for three years. Civil war looms, conjuring memories of the 16-year Lebanese civil war, during which more than 100,000 people were killed out of a population of fewer than 4 million.

Yet, if the United Nations were to have its way, the Iraqi debacle would be just the first in a series of such wars -- the effect of a well-meaning but ill-considered effort to make humanitarian intervention obligatory as a matter of international law. Today Iraq, tomorrow Darfur.

Chevronizing Foreign Relations Law

Last week the Court of Appeals for the Eleventh Circuit ruled that the act of state doctrine prevents former owners of property in Cuba from recovering damages from Club Med, which operated a resort on that property with the permission of the Cuban government.  Cuba had expropriated the property from the family in 1959.  Florida law would ordinarily permit plaintiffs to recover on theories of trespass and unjust enrichment, but under the act of state doctrine Cuba’s expropriation of the property must be considered valid for purposes of the dispute.  (A brief discussion is here.)

A New Cold War?

The Pentagon is sounding the alarm about China’s military buildup.  The Washington Post says:

China's military buildup is increasingly aimed at projecting power far beyond its shores into the western Pacific to be able to interdict U.S. aircraft carriers and other nations' military forces, according to a Pentagon report released yesterday that outlines continued concerns over China's rising strategic influence in Asia.

International law buffs have begun speculating about what China’s rise in power might mean for international law.  Here are some possibilities:

1.  A new cold war, resulting in a bipolar system similar to the one that existed during the old cold war.  China and the U.S. would each have a sphere of influence, would surreptitiously attempt to undermine the other’s sphere of influence, and would resolve conflicts and tensions across spheres on an ad hoc basis.  International law would play less of a role than it does today, and would mainly be applied to countries other than China and the U.S.

2.  A new great power system, similar to the one that existed during the nineteenth century.  China, the U.S., Russia, the EU, perhaps India, and so forth, would resolve international conflicts on an ad hoc basis, or on the basis of a loose set of commitments.  International law would have two tiers, one for the great powers, and one for the rest.

3.  Increased legalization and institutionalization, 1990s-style.  China would join the U.S. and EU in supporting international tribunals and conventions, but these would, as a result, reflect China’s values and interests, to a greater extent than at present.  This means the west would have to compromise on human rights, among other things.

For more discussion, click here.

Happy Birthday, Montenegro

If all goes according to plan, Montenegro will soon separate from the state of Serbia and Montenegro and become a sovereign state.  With this act, Montenegro will become the 193rd or 194th or 195th state, depending on how one defines a state.  For more precision, we can say that Montenegro will be the 192nd member of the United Nations when it takes its seat.  (Taiwan is a state but is not formally recognized as such, and is not a member of the United Nations; there are a few other ambiguous cases.)

Predicting Country Size, Number, and Confederation

There is a literature on the size of nations, and therefore on their number, with some of the best work arguing for an emphasis on the tradeoff between heterogeneity and economies of scale. If we think of modern history as consisting of a long period of consolidation, or merger of nations, followed by a period of dismemberment, independence movements, or increased numerosity, then the story is one of technological changes that made increased size more valuable and then less valuable.  (The facts can be disputed, if only because there is room to argue about the definition of a country.  But this is not the place.) Alternatively, preferences might have become more homogeneous and then less so.  If we think of preferences as including a taste for peace, or something else that might be cheaper to achieve with greater country size, then the analysis can get a bit circular even as it gains plausibility.

Bosnia v. Serbia

Last Monday the International Court of Justice in The Hague began hearings on the merits of a case brought by Bosnia and Herzegovina against Serbia and Montenegro. Bosnia accuses Serbia of committing genocide during the Yugoslavian civil war. If Bosnia prevails, Serbia will be the first nation to have been found guilty of genocide, and it could be forced to pay billions of dollars in reparations to Bosnia.

International lawyers eagerly anticipate this outcome, as it would, in their view, advance international human rights while bringing justice to the Bosnians, who suffered greatly during the Yugoslav conflict. It is too soon to celebrate, however.  The Bosnia-Serbia proceeding may end up illustrating the limits of international law, rather than vindicating its ideals.

Muhammed Cartoons Continued

I will not revisit my modest point in an earlier post regarding the utility of, or perhaps I should have said substitution to, consumer boycotts for perceived offenses, where domestic governments are disinclined to intervene. Since that post there have been two interesting developments.  One is the escalating violence against things associated with Denmark (broadly described), where the cartoons originated, and the other is the continuing disinclination of American newspapers to republish the cartoons, as they weigh obvious newsworthiness and curioisty against the cost of giving offense, and I do not mean violence alone.

Muhammed Cartoons, Free Speech, and International Relations

Predictably, the enormous fuss over the publication in Denmark of Muhammed cartoons found offensive by many Moslems has caused them to be viewed by many more readers as they are republished across Europe and held up as a free speech cause.  The pattern is familiar and brings to mind Rushdie and "Banned in Boston" experiences. An audience is deeply offended, but is unable to express its indignity without bringing on more of what it finds offensive, and often without generating new opponents who flock to the cause of free speech. I do not mean to suggest that all cases are alike; depictions of the Prophet (though some of the cartoons have more to do with a fictional young boy of the same or similar name) may or may not be tame compared to cartoons involving Jesus, for example, though there is more of a Moslem tradition of finding any depiction blasphemous, but the common features are fairly obvious. The Danish response is also predictable; the government might or might not express some sort of regret, but it is hardly in a position to tell newspapers what to do.

Foreign Law and Constitutional Interpretation

Attorney General Alberto Gonzales addressed the Law School community on Wednesday, November 9, 2005. His topic was "Foreign Law and Constitutional Interpretation." Listen to the speech and his Q&A here and/or read his remarks here. If you need instructions, you can find them here.

Hearing Voices

With the blog experiment now up and running, we thought it time to experiment with some additional ways to share ideas. So, starting today, we will be from time to time posting some audio and video clips drawn from talks and events at the Law School. Our first few posts in this vein will be borrowed from events that have been hosted over the past few years, but soon we hope to have fresh content, and maybe even some content recorded especially for the blog. (Just think: in the not-so-distant future you might be able to listen to Lichtman and Picker talk about Grokster on your iPod while at the gym! I know, it gives us chills, too.)

Just to get the ball rolling, we start today with the 2004 Dewey Lecture given by Professor Peter Singer, Ira W. DeCamp Professor of Bioethics, University Center for Human Values, Princeton University. The lecture was entitled "America's Responsibilities as A Global Citizen." Professor Singer's lecture may be listened to in two parts: the introduction (by Professor Martha Nussbaum) and Professor Singer's talk, and the question and answer session. As always, feedback and suggestions welcome.