PROPOSAL 26

Hari M. OsofskyUniversity of Oregon School of Law

The Geography of Climate Change Litigation Part IINarratives of Nation-States and Third Space

Hari M. Osofsky*

ABSTRACT: This article aims to interweave two current crises for law and policy in the United States: (1) the extent of our commitment to international law and (2) the approach we will take to regulating global climate change. It argues that achieving progress on both fronts requires interrogating the geographic assumptions in major conceptual approaches to international legal theory and the implications of those assumptions for their narratives of climate change litigation. To that end, it develops a taxonomy of international legal theory based on how those approaches view nation-state spaces—Westphalian, modified Westphalian, pluralist, and critical—and considers how a law and geography narrative of climate change litigation might interact each of these accounts. Building from these narratives, it considers what would be required for a theory of international law to address simultaneously the need for and the legitimate critiques of nation-state spaces in transnational regulatory governance and the implications of such a “thirdspace” for global climate change.

I. INTRODUCTION……………………………………………………....__II. GEOGRAPHIC ASSUMPTIONS ABOUT THE NATION-

STATE………………………………………………………...………………....__A. Place, Space, and Scale...............................

……………………...........................................__ B. Narrating Local Governmental

Spaces...................................................__C. Narrating Nation-State

Spaces…….........................................................__

* Assistant Professor, University of Oregon School of Law; B.A., J.D., Yale University. This piece was shaped by the thoughtful comments of colleagues during my workshop presentations at the Arizona State University Sandra Day O’Connor College of Law, Loyola Law School (New Orleans), the University of Houston Law Center, the Junior International Law Scholars Roundtable, and the University of Oregon School of Law, as well as its conference presentation at International Law Weekend–West; I am grateful for the insights and encouragement. This piece has benefited tremendously from the suggestions of Keith Aoki, Paul Berman, Caroline Forell, Ibrahim Gassama, Joshua Gitelson, Janet Levit, Lillian Aponte Miranda, Alexander Murphy, Margie Paris, Robert Tsai, Lua Kamal Yuille, Robert Verchick, and Jonathan Zasloff. I also appreciate the generous financial support from University of Oregon School of Law, and in particular, the Dean’s Advisory Council Endowment Fund, for this project.

III. A LAW AND GEOGRAPHY TAXONOMY OF INTERNATIONAL LEGAL THEORY................................................................................................__A. Traditional Westphalian Spaces...........…….

……………..............................__ B. Modified Westphalian Spaces.

……….....................................................__C. Pluralist Spaces………...........………………….

…..............................................__ D. Deconstructed Spaces…………………….

……………………………...__ E. Reflections on Theorizing State Spaces….

…………………………......__ IV. RE-ENVISIONING TRANSNATIONAL REGULATORY

GOVERNANCE?............................................................................................…__A. Embracing Dialectical Relationships…..……..

……………………. . ..__B. "Thirdspace" Approaches to International Law and Climate

Change Litigation?..…………………………………………………………........__

V. CONCLUDING REFLECTIONS…………………………………...__

I. Introduction

We are at a crucial juncture in our narratives of both climate change and of international law. The recently released Fourth IPCC Assessment makes clear not only that climate change is happening, but that we have passed the point in our emissions at which prevention is possible. The questions we now face are whether we will do enough to avoid the most catastrophic scenarios and to develop our capacity to adapt to the changes that are coming.1

At the same time as the prospects for traditional international legal mechanisms meeting this challenge seem poor, the debates in the United States over the status and boundaries of international law are intense. 2 In the years since 9-11, the Bush administration has worked together with international law academics to undermine core human rights protections and restraints on the use of force in order to strengthen executive power. The

1 See Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Basis, Summary for Policymakers, available at http://www.ipcc.ch/SPM2feb07.pdf. 2 See, e.g., Agora: The United States Constitution and International Law, 98 AM. J. INT’L L. 42 (2004) (providing various perspectives on the appropriateness of using international law to interpret the U.S. Constitution).

push-back against these efforts has also been strong, which has led to an environment of encampment in the international law and policy community.3

The discourse about these two moments of crisis, however, has tended to intertwine them in only the most superficial sense. Those fighting for a stronger commitment to international law generally recognize a refusal to take climate change seriously enough as part of the Bush Administration’s disastrous foreign policy, but have tended to focus largely on “war on terror” issues.4 The significant discussions about climate change still largely take place in focused fora of environmental experts.5

This balkanization is beginning to change, however, particularly with respect to the growing body of litigation over climate change. An ever-increasing number of suits and petitions that engage global climate change have been brought in a variety of subnational, national, and supranational fora around the world. As the U.S. Supreme Court and leading newspapers and law journals engage the issues raised by these suits, some of the most prominent voices in the battle over international law have begun to discuss their significance. For example, Eric Posner, one of the principle advocates for an expansive approach to executive power that significantly curtails rights protections, recently posted a piece on the Social Science Research Network that makes a normative argument against

3 These dynamics were reflected in the debate over Jack Goldsmith and Eric Posner’s recent book, see JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005), which relies on game theory and rational choice theory to argue for the limites of international law. See, e.g., Paul Schiff Berman, Book Review Essay, Seeing Beyond the Limits of International Law, 84 TEX. L. REV. 1265 (2006) (critiquing the book based on its assumptions); Oona A. Hathaway & Ariel N. Lavinbuk, Book Review, Rationalism and Revisionism in International Law, 199 HARV. L. REV. 1404 (2006) (noting its methodological contribution but critiquing its particular approach to rationalist analysis); Edward T. Swaine, Review Essay, Restoring (and Risking) Interest in International Law, 100 AM J. INT’L L. 259 (2006) (providing a largely positive analysis of the book); Anne Van Aaken, To Do Away With International Law? Some Limits to the ‘Limits of International Law’, 17 EUR. J. INT’L L. 289 (2006) (providing a critique of the book from a rationalist perspective); Symposium: The Limits of International Law, GA. J. INT’L & COMP. L. 253 (symposium issue that included multiple perspectives).4 See supra note Error: Reference source not found.5 All of the symposia held at a variety of law schools during the 2005–06 academic year on climate change regulation embody this focus on climate regulation without much connection to the broader debates over the future of international law. See, e.g., Cap and Trade as a Tool for Climate Change, http://www.law.berkeley.edu/centers/envirolaw/capandtrade/index.html (Feb. 22–23, University of California Berkeley Boalt Hall School of Law); Environmental Law Symposium, Partnerships & Legislation: California’s Approach to Climate Change, http://students.law.ucdavis.edu/ELS/symposium.shtml (UC Davis School of Law, Feb. 23, 2007); Pennsylvania Law Review, Responses to Global Warming: The Law, Economics, and Science of Climate Change, http://www.pennumbra.com/symposia/ (Nov. 16-17, 2006); Stanford Environmental Law Journal and Stanford Journal of International Law, Spring 2007 Symposium: Climate Change Liability and the Allocation of Risk, http://sjil.stanford.edu/climatechange.shtml (Feb. 24, 2007); University of San Francisco School of Law—Law Review, The Domestic Response to Global Climate Change: Federal, State, and Litigation Initiatives, http://www.usfca.edu/lawreview/symposium.html (Mar. 31, 2007).

bringing human rights claims under the Alien Tort Claims Act based on climate change.6 At a 2007 Yale Journal of International Law symposium exploring whether a “new” New Haven School is emerging, Dean Harold Hongju Koh, one of the leading defenders of the importance of international legal obligations, led off his questions on the panel he moderated by engaging the significance of Massachusetts v. EPA, the first U.S. Supreme Court case to address climate change.7

As climate change litigation begins to more clearly form part of the fight for the future of international law, a systematic examination of how it fits into that discourse is critical. This article attempts to begin that conversation by examining the ways in which geographic assumptions8 about the nation-state influence the narratives about how this type of litigation fits into an understanding of international law. It argues that interrogating those assumptions and their implications allows for clarification of the significance of climate change litigation crucial to making progress on how to regulate anthropogenic greenhouse emissions and their effects.

In the process of this analysis, the article treats climate change litigation as a case example of how to engage more creatively broader international legal dilemmas. This litigation raises core conceptual issues about the boundaries of domestic and international, and of public and private. It embodies an emerging transnational regulatory process which could be viewed quite differently depending on one’s base assumptions about what international law is and how it works. Moreover, as I explored in The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, the problem of greenhouse gas emissions is deeply intertwined with energy production and consumption, and the complex state-corporate regulatory dynamics which govern that transnational industry.9 As examples from Iran’s nuclear defiance10 to the 6 Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal (draft manuscript on file with author).7 For a summary of that panel, which focused broadly on international legal theory, see Jessica Karbowski, YCS Applications of the New Haven School: Professional Scholarship, http://www.opiniojuris.org/. 8 A law and geography approach considers both the spaces of law (Geography in Law) and the way in which “law shapes physical conditions and legitimates spatiality” (Law in Geography). Jane Holder and Carolyn Harrison, Connecting Law and Geography, in LAW AND GEOGRAPHY, 3, 3–5 (Jane Holder & Carolyn Harrison eds., 2003). This dynamic relationship has been described in the following manner: “Our legal lives are constituted by shifting intersections of different and not necessarily coherently articulating legal orders associated with different scalar spaces. The relations between these different legal spaces is a dynamic and complex one, but it is a pressing and important subject of inquiry given the ways in which codes operative at various scales intermingle.” David Delaney, Richard T. Ford & Nicholas Blomley, Preface: Where is Law at xxi, in THE LEGAL GEOGRAPHIES READER (Nicholas Blomley, David Delaney & Richard T. Ford eds., 2001). 9 See Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1795–1800 (2005).10 See Michael Donovan, Iran’s Bomb: Crisis Deferred?, 29 FLETCHER F. WORLD. AFF 27, 36 (2005); Anthony Faiola & Dafna Linzer, WASH. POST A14, June 13, 2006; Richard Spencer, Tension Rises as China Scours Globe for Energy, THE DAILY TELEGRAPH

threatened production stoppage in Alaska11 amply reveal, how law does and should engage the energy industry is intimately intertwined with critical national security concerns. This article’s engagement of theoretical and normative questions thus aims to situate climate change litigation amid a complex of knotty legal and policy problems vexing the international legal community today.

This piece is the second in a trilogy of articles I am writing on the geography of climate change litigation. The first piece in this series, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, WASH. U. L.Q. (2005), explores the geography of these actions and the implications of its spaces12 for transnational regulatory governance. That article argues that mapping the ties to place of actors and claims in these actions reveals a three-dimensional geography of overlapping spaces that are simultaneously multiscalar, multibranch, and multiactor.13

This article builds upon that analysis by engaging the conceptual implications of that descriptive account. Drawing from Richard Ford’s conception of governmental spaces in the local government context,14 the piece develops a taxonomy of theoretical approaches to international law based on how they view the role of the nation-state: (1) traditional Westphalian, (2) modified Westphalian, (3) pluralist, and (4) critical.15 It analyzes how each group might narrate climate change litigation, and the presumptions about space that underlie such a framing.16 Then, using Edward Soja’s theory of thirdspace, it engages the possibilities for progress on both climate change regulation and the debate over international law.

(LONDON) 18, Nov. 19, 2004; Robin Wright, Iran’s New Alliance With China Could Cost U.S. Leverage, WASH. POST A21, Nov. 17, 2004.11 See David Prosser, BP Battles to Keep Alaska Flowing as Oil Price Heads for Record, 8/14/06 INDEPENDENT (United Kingdom) 36; Pam Radtke Russell, BPs Corrosion Problems in Alaska Have Drawn Attention to Oil Spills, But Officials Say Pipeline Regulations Are Tighter in Louisiana, 8/20/06 TIMES PICAYUNNE 1.12 The term “space” is central to the geography literature, and has been used in a variety contexts. See, e.g., DAVID HARVEY, SPACES OF CAPITAL: TOWARDS A CRITICAL GEOGRAPHY 369 (2001) (spaces of capital); DOREEN MASSEY, FOR SPACE (2005) (a broad analysis of the concept of space in a globalizing world); Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical and Contemporary Considerations, in STATE SOVEREIGNTY AS SOCIAL CONTRACT, 81, 107 (Thomas J. Biersteker & Cynthia Weber eds., 1996) (space in an international economic context). This article uses “space” inclusively to encompass socio-political, socio-cultural, and legal structures. “Place” references ties to specific locations, and “scale” describes the relevant level of governance.13 Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1813–18 (2005).14 See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1857–60, 1887–1892 (1994).15 See infra Part III.16 See id.

Part II introduces the law and geography approach that underlies this piece’s analysis. Part III explores four views of the nation-state as an international lawmaker and what their narratives of climate change litigation might be. Part IV considers the implications of this taxonomy for climate change and international law. The Article concludes with reflections on the questions raised by this law and geography approach.

II. Geographic Assumptions about the Nation-StateGeography studies the way in which of place, space, and scale interact over time. The scholarly literature in geography, particularly since the early 1970s, analyzes the complexities of each of those core terms.17 Geography often is described as the spatial analog to history; they both unify a set of disparate topics by focusing on a particular aspect of them, geography on space and history on time. Geography’s spatial focus causes it to cross the often-entrenched distinctions among the hard sciences, social sciences, and humanities. This quality adds to its capacity to address multifaceted problems, but also has contributed to its difficulties establishing itself securely in U.S. universities.18

As I’ve analyzed in depth elsewhere,19 many current U.S. law professors have had limited exposure to university-level geography as a result of its mid-to-late twentieth century purge from many elite institutions; currently 93% of liberal arts institutions lack a geography department and Dartmouth College remains the only Ivy League school with one.20 Although signs of geography’s institutional resurgence abound, most notably in Harvard’s 2006 establishment of a Center for Geographic Analysis,21 law professors’ dearth of geography education tends to make scholarly analysis of geographic concepts thinner. Law and geography has also been slower to emerge than many other law and social science intersections.22

17 See supra Section II.A.18 Alexander Murphy, Geography’s Place in Higher Education in the United States, 31 J. OF GEOGRAPHER IN HIGHER ED. 121, 122–23 (January 2007); Hari M. Osofsky, A Law and Geography Perspective on the New Haven School, __ YALE J. INT’L L. __ (forthcoming 2007).19 See Osofsky, supra note Error: Reference source not found, at __.20 See Mark D. Bjelland, A Place for Geography in the Liberal Arts College?, 56 PROFESSIONAL GEOGRAPHER 326, 326 (2004); Department of Geography Dartmouth College, About the Department: An Introduction, http://www.dartmouth.edu/~geog/aboutdept/dept.html (the department currently only grants a Bachelor of Arts degree); Center for Geographical Analysis, http://www.gis.harvard.edu/icb/icb.do; Murphy, supra note Error: Reference source not found, at 130–34.21 See Elizabeth Gerhman, Geography Center Launched, HARV. UNIV. GAZETTE, May 11, 2006, http://www.news.harvard.edu/gazette/2006/05.11/05-geography.html.22 See Osofsky, supra note Error: Reference source not found, at __. For examples of international law and geography scholarship that draws from the discipline of geography, see Keith Aoki, Space Invaders: Critical Geography, the “Third World” in International Law and Critical Race Theory, 45 VILL. L. REV. 913 (2000); Matthew R. Auer, Geography, Domestic Politics and Environmental Diplomacy: A Case from the Baltic Sea Region, 11 GEO. INT’L ENVTL. L. REV. 77 (1998); Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311 (2002); Richard T. Ford, Law’s Territory (A History of Jurisdiction), 97 MICH. L. REV. 843 (1999); Osofsky, supra note

This Part provides background on the relevant geography—as well law and geography—literature, to frame the more specific discussion of the rest of the paper. It begins by introducing the way in which geography interrogates concepts of place, space, and scale. It next summarizes Richard Ford’s use of the geography literature on space to analyze the way in which legal conceptions of local government contribute to racial segregation. Finally, it demonstrates how Ford’s approach might be applied in the context of international legal theory.

A. Place, Space, and ScaleFor the reasons discussed above, analyses of legal problems often engage concepts of “place,” “space,” and “scale,” but generally with little acknowledgement of the rich literature in geography exploring what these ideas mean.23 This section provides a brief introduction to that literature as a background for understanding the insights that a law and geography approach can bring.

In his foundational book, Space and Place: The Perspective of Experience, Yi-fu Tuan explains that that“[s]pace and place are basic components of the lived world; we take them for granted. When we think about them, however, they may assume unexpected meanings and raise questions we have not thought to ask.”24 He further explains:

In experience, the meaning of space often merges with that of place. “Space” is more abstract than “place.” What begins as undifferentiated space becomes place as we get to know it better and endow it with value. Architects talk about the spatial qualities of place; they can equally well speak of the locational (place) qualities of space. The ideas “space” and “place” require each other for definition. From the security and stability of place we are aware of the openness, freedom, and threat of space, and vice versa. Furthermore, if we think of space as that which allows movement, then place is pause; each pause in movement makes it possible for location to be transformed into place.25

Error: Reference source not found; Robert R.M. Verchick, Critical Space Theory: Keeping Local Geography in American and European Environmental Law, 73 TUL. L. REV. 739 (1999). 23 I have analyzed this phenomenon in the context of the New Haven School of international law in Osofsky, supra note Error: Reference source not found, at __.24 YI-FU TUAN, SPACE AND PLACE: THE PERSPECTIVE OF LIVED EXPERIENCE 3 (1977). 25 See YI-FU TUAN, supra note Error: Reference source not found, at 6; see also John A. Agnew & James S. Duncan, Introduction, in THE POWER OF PLACE: BRINGING TOGETHER GEOGRAPHICAL AND SOCIOLOGICAL IMAGINATIONS 1, 1 (John A. Agnew & James S. Duncan, eds., 1989); Helen Couclelis, Location, Place, Region, and Space, in GEOGRAPHY’S INNER WORLDS: PERVASIVE THEMES IN CONTEMPORARY AMERICAN GEOGRAPHY 215, 215 (Ronald F. Abler, Melvin G. Marcus & Judy M. Olson, eds., 1992). Accord Michael R. Curry, On Space and Spatial Practice in Contemporary Geography, in CONCEPTS IN HUMAN GEOGRAPHY 3, 3 (Earle Carville, ed., 1995) (“When first confronted with the literature on the nature of space, the new student finds a bewildering set of apparent alternatives. There is real space and perceived space, there is phenomenal space and behavioral space, there is ideal space and material space. Within the confines of this group of broader and contrasting conceptions, there appear to be another set of

More recent scholarly literature has explored numerous aspects of the concept of “space” in a globalizing world.26

“Scale” has received similar interrogation. Neil Brenner’s has summarized the various definitions provided for scale in recent geography scholarship: (1) “a nested hierarchy of bounded spaces of differing size;” (2) “the level of geographical resolution at which a given phenomenon is thought of, acted on or studied;” (3) “the geographical organizer and expression of collective social action”; and (4) “the geographical resolution of contradictory processes of competition and cooperation.”27 He then provides his own detailed definition after explaining that his analysis is “broadly compatible” with these definitions “but emphasizes, above all, the hierarchization of spaces in relation to one another.”28 Moreover, geographers have begun to engage the way in which their analyses of scale might interact with discussions in other disciplines. Nathan Sayre, for example, has compared the approaches of geographers with those of ecologists.29

By using these geographic ideas more precisely and recognizing the assumptions imbedded in usages of them, scholars can gain new insights into legal constructs. Such an approach is particularly important in the context of climate change and international law because, as discussed in more depth in Parts III, both have many imbedded geographic assumptions.

B. Narrating Local Governmental SpacesRichard Ford of Stanford Law School has played a critical role in establishing law and geography as an important interdisciplinary interchange. The 1996 Stanford Law Review symposium on Surveying Law and Borders, which he organized, represented the first time a major law review focused on law and geography work.30 Moreover, his co-edited book, The Legal Geographies Reader, provides a much-needed introduction to the wide range of ways in which law and geography analysis can contribute to legal scholarship.31

related contrasts, of place, region, site, location, locale, and situation….”).26 See, e.g., EDWARD W. SOJA, POSTMODERN GEOGRAPHIES: THE REASSERTION OF SPACE IN CRITICAL SOCIAL THEORY [add pincite] (1989); EDWARD W. SOJA, THIRDSPACE: JOURNEYS TO LOS ANGELES AND OTHER REAL-AND-IMAGINED PLACES (1996); DOREEN MASSEY, FOR SPACE (2005).27 NEIL BRENNER, NEW STATE SPACES: URBAN GOVERNANCE AND THE RESCALING OF STATEHOOD 9 (2004) (internal quotations omitted).28 Id.; see also Sallie A. Marston, The Social Construction of Scale, 24 PROGRESS IN HUMAN GEOGRAPHY 219 (2000); Neil Brenner, The Limits to Scale? Methodological Reflections on Scalar Structuration, 25 PROGRESS IN HUMAN GEOGRAPHY 591 (2001); Sallie A. Marston & Neil Smith, States, Scales and Households: Limits to Scale Thinking? A Response to Brenner, 25 PROGRESS IN HUMAN GEOGRAPHY 615 (2001).29 Nathan F. Sayre, Ecological and Geographical Scale: Parallels and Potential for Integration, 29 PROGRESS IN HUMAN GEOGRAPHY 276 (2005).30 See 48 STAN. L. REV. 1037–1429 (1996).31 THE LEGAL GEOGRAPHIES READER (Nicholas Blomley, David Delaney & Richard T. Ford eds., 2001). This represented the first such compilation. Since then, there has been one other. LAW AND GEOGRAPHY (Jane Holder & Carolyn Harrison eds., 2003). Nicholas Blomley, one of Ford’s co-editors, wrote the first monograph broadly exploring the ways in which critical geography could aid legal analysis. See NICHOLAS K. BLOMLEY,

In one of his earliest law and geography pieces, The Boundaries of Race: Political Geography in Legal Analysis, Ford explores the way in which legal conceptions of cities serve to reify the status quo in ways that reinforce racial segregation. He describes these legal spaces as simultaneously opaque and transparent in ways that reify the status quo.32 Ford uses the term “opaque” to mean that the law does not explore the internal decisionmaking of cities. He explains that cities are viewed as organically developing and then being discovered by law. As such, they are treated as autonomous political entities: “We cannot ‘see inside’ the political space to perceive the social institutions that define and comprise it.”33

Ford further argues that the law simultaneously treats cities as “transparent,” by which he means that the legitimacy of their authority is not questioned. He notes that the law views localities “as mere subdivisions, the inconsequential and administratively necessary agents of centralized power.”34 The applicable legal doctrines assume that this supposedly transparent power structure should be treated as irrelevant, and thus fails to explore its consequences.35

In Ford’s conception, the law continuously oscillates between these views of the city in a manner that avoids fundamental engagement with the impact that they have on racial segregation. By failing to examine the social institutions inside localities and by treating them as mere agents, the law does not see the ways in which communities make decisions that separate racial groups. Together, these views of the spaces for local government maintain and reinforce racially identified spaces.36

C. Narrating Nation-State Spaces

This analysis that Ford provides regarding cities translates readily into the international law context. Theories of international and transnational law vary in the extent to which they view the political geography of nation-state as opaque and/or transparent, as defined by Ford. These spatial conceptions roughly track these theories’ assumptions about the centrality of the nation-state. Grouping international legal theory based on these assumptions changes the lens through which these theories are being viewed from the

LAW, SPACE AND THE GEOGRAPHIES OF POWER (1994).32 See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1857–60, 1887–1892 (1994).33 Id. at 1858.34 Id. at 1877.35 Id.36 Id. at 1886–1918.

predominant norm-based/interest-based one,37 and in so doing, provides an opportunity for insights into the spaces that underlie them. 38

At one end of the spectrum, a traditional Westphalian approach treats the nation-state similarly to Ford’s model of the legal treatment of the city. Namely, the nation-state’s power is treated as transparent—whether from divine authority embodied in the king or through popular sovereignty into an elected leader—and therefore irrelevant; this model does not question the extent to which the nation-state structure actually comports with those values, and therefore should be the basis for an international legal order. This legitimation of the nation-state as the central axiom of the international legal system is reinforced by the simultaneously opaque way in which the Westphalian model views the state; the nation-state is an impenetrable unit upon whose consent international law rests.39

At the other end of the spectrum, critical conceptions of nation-state spaces treat them as neither opaque nor transparent. These accounts—which draw from critical race theory, LatCrit theory, third world approaches to international law, new approaches to international law, feminist theory, etc.—argue against the legitimacy of the nation-state (altogether for some, as currently constructed for others). They decry as illegitimate the colonialism and conquest that shaped the modern map, and examine the subordination that underlies the international legal system.40

37 In Foundations of International Law and Politics, for example, Oona Hathaway and Harold Koh argued that the intersection of international relations and international law can be sub-divided into interest-based and norm-based approaches. FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS (Oona A. Hathway & Harold Hongju Koh, eds., 2005).38 The aim of this grouping is to portray a theoretical landscape. Although this Part attempts to group leading theories as accurately as possible, these groupings are my choices, rather than those of the authors of those theories. I am open to the notion that those authors might choose to recategorize themselves, or that a particular theory could arguably have some characteristics of more than one group. 39 For an exposition of the Westphalian vision, see IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 287–88 (6th ed. 2003); see also Michael J. Kelly, Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver,” Revolutionary International Legal Theory or Return to Rule by the Great Powers, __ UCLA J. INT’L L. __ (forthcoming) (draft on file with author).40 See, e.g., BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT, SOCIAL MOVEMENTS AND THIRD WORLD RESISTANCE (2003) (exploring the relationship between the Third World and international law in the Twentieth Century); Symposium, Critical Race Theory and International Law: Convergence and Divergence, 45 VILL. L. REV. 827 (2000) (exploring how Critical Race Theory might interact with international law); David Kennedy, When Renewal Repeats: Thinking Against the Box, 32 N.Y.U. J. INT’L L. & POL. 335, 476–500 (2000) (describing the evolution of New Approaches to International Law (NAIL)); Obiora Chinedu Okafor, Newness, Imperialism, and International Legal Reform in Our Time: A Twail Perspective, 43 OSGOODE HALL LAW JOURNAL 171 (2005) (exploring post-9-11 claims of a new international order from a Third World Approaches to International Law (TWAIL) perspective).

Between those two poles lies much of contemporary international legal theory. Most of the scholars engaged in the debate over international law described in the introduction range from what I call a modified Westphalian approach to a pluralist one. In a modified Westphalian visions, the centrality of the nation-state is not fundamentally challenged, but the processes by which nation-states consent and obey are interrogated. Power is still relatively transparent because of that presumption of centrality, but the state is far less opaque.

A growing number of scholars provide a more pluralist vision of international lawmaking that questions the centrality of the nation-state. They argue for recognition of the significance of the other types of decision-making that occur, and the multiplicity of interconnections that individuals have.41 Their work often builds on the scholarship of the New Haven School, which described law as “a process of authoritative decision by which members of a community clarify and secure their common interests“ and “noted the importance of locating any particular process of authoritative decision in its larger context of community and effective power processes, and observed that humankind today lives in a whole hierarchy of interpenetrating communities, from the local to the global.”42 These pluralist perspectives do not abandon the nation-state, but through viewing it as less central, penetrate the opaque and transparent spaces of the Westphalian vision.

Of course, most theories do not fit neatly into one of these four boxes. Anne-Marie Slaughter’s conception of “a new world order,” for instance, involves a three-dimensional model of transgovernmental relationships that form the infrastructure of global governance.43 Her first premise, however, makes clear that the model has not entirely abandoned the state centrality of the modified Westphalians: “The state is not the only actor in the international system, but it is still the most important actor.”44 Similarly, Balakrishnan Rajagopal’s article, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, takes an approach that is arguably both pluralist and critical.45

41 See Paul Schiff Berman, Conflict of Laws and the Challenge of Legal Pluralism (draft on file with author); Janet Koven Levit, A Bottom-Up Approach to International Law Making: The Tale of Three Trade Finance Instruments, 30 YALE J. INT’L L. 125 (2005).42 HAROLD D. LASSWELL & MYRES S. MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY: STUDIES IN LAW, SCIENCE AND POLICY, at xxi (1992). Accord Richard A. Falk, Casting the Spell: The New Haven School of International Law, 104 YALE L.J. 1991 (1995); Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INT’L L. 1 (1959); Myres S. McDougal, et al., The World Constitutive Process of Authoritative Decisions, 19 J. LEGAL EDUC. 253 (1967); W. Michael Reisman, International Lawmaking: A Process of Communication, The Harold D. Lasswell Memorial Lecture, (April 24, 1981), in 75 AM. SOC’Y INT’L L. PROC. 101 (1981).43 ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 18-23 (2004).44 Id. at 18.45 Balakrishnan Rajagopal, The Role of Law in Counter-hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India, 18 LEIDEN J. INT’L L. 18 (2005).

Although individual theories may have more than one category in which they belong, the taxonomy still provides a helpful mechanism for exploring the implications of how we narrate climate change litigation. Through their different conceptions of state spaces, each of these four approaches to international legal theory would explore the significance of climate change litigation differently. An engagement of these stories illuminates how a law and geography perspective might help map existing streams of international legal theory and, in the process, enhance our understanding of them and their perspective on phenomenon that we use them to explain.

III. A Law and Geography Taxonomy of International Legal TheoryThe sections that follow—organized around these four main views of the nation-state—focus on two primary questions: (1) How might a narrative from each theoretical perspective explain the way in which climate change litigation fits into international law, and (2) How does this interaction clarify the presumptions about space that underlie these approaches? Exploring potential answers to these questions helps to lay the groundwork for addressing underlying normative dilemmas about the appropriate role for climate change litigation in transnational regulatory governance, and how this role should navigate the multiplicity of scales and actors that climate change litigation entails.46

A. Traditional Westphalian Spaces

In a traditional Westphalian approach, nation-states are the primary subjects and objects of international law and their consent undergirds the international legal order. The two primary building blocks of public international law, treaties and customary international law, are constructed by nation-states and derive their binding force from the decisions of those states.47 These sovereign equals cede specific authority to the international community through their consent, and the general legal principles they recognize in their domestic legal systems help to fill the gaps in that formal legal structure.48

As noted above, traditional Westphalian spaces closely replicate the dialectical relationship of opaqueness and transparency that Ford describes in the local government context. The Westphalian nation-state is impenetrable; the only relevant question is whether or not it, as a unit, has consented. The internal processes through which it derives consent, and the formal and informal—often private—actors participating in those processes, are only relevant to the extent that they help to answer the question of consent.49

46 For an interesting historical analysis of the public/private divide in the context of cities, see Gerald E. Frug, The City as a Legal Concept, 93 HARV. L. REV. 1059 (1980). For an analysis of the blurring of public and private in the nation-state context, see Laura A. Dickinson, Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability Under International Law, 47 WM. & MARY L. REV. 135 (2005).47 See BROWNLIE, supra note Error: Reference source not found, at 3–29, 287–88.48 See id.49 See id.

At the same time, the international legal community treats states as transparent. If they meet the criteria for statehood—which do not delve into legitimacy of a state’s current legal order but only its stability and effectiveness—they have formal rights to participate in international lawmaking as sovereign equals.50 Moreover, although states at times choose not to recognize each others’ governments for political reasons, such nonrecognition is rare and does not go to the underlying question of statehood.51

A narrative of climate change litigation from this perspective would look quite different from the modified Westphalian one I provided in The Geography of Climate Change Litigation. First, the only cases that would be viewed as having international legal relevance are those that involve supranational obligations. The cases which invoke subnational or national law—which includes all of the subnational-level cases and of the national-level ones brought within the United States—occur within the black box of the nation-state. The involvement of transnational actors in the litigation and the factual focus on a supranational problem would not change their status. The Minnesota Court of Appeals’ analysis—discussed in depth in The Geography of Climate Change Litigation—of whether the Minnesota Public Utilities Commission included carbon dioxide in its environmental cost valuation scheme on the basis of substantial evidence, for instance, invokes only Minnesota law; it does not purport to be an international law case.52 Similarly, Massachusetts v. EPA, as a formal matter, focuses entirely on federal law.53

Second, the cases invoking supranational law have international legal relevance in a much thinner way than suggested in that law and geography analysis of them. The relevant issue for the traditional Westphalian is not how these cases play into broader transnational regulatory dynamics, but how they interact with state consent. The supranational tribunals might clarify, for example, what a state’s obligations are under treaties it has consented to, and whether or not it is meeting those obligations appropriately.54 The national courts’ consideration of regional treaties in the German and Nigerian cases, discussed in detail in The Geography of Climate Change Litigation,

50 See id. at 69–83.51 See id. at 85–101.52 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998); see also See Osofsky, supra note Error: Reference source not found, at 1818–1822.53 Massachusetts v. EPA, 433 F.3d 66 (D.C. Cir. 2005), cert. granted 2006 WL 1725113 (U.S. Dist. Col. June 26, 2006) (No. 05-1120); I have discussed this view of that litigation as problematic in Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, __STAN. ENV. L.J. & STAN. J. INT’L L. (forthcoming 2007).54 For example, the Inter-American Commission on Human Rights has been asked to play this role in the Inuit Petition. See Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted Dec. 7, 2005), available at http://www.earthjustice.org/library/reports/ICC_Human_ Rights_Petition.pdf.; see also Statute of the Inter-American Commission on Human Rights arts. 18–20, Oct. 31, 1979, O.A.S. G.A. Res. 447 (IX-0/79), available at http://www.iachr.org/Basicos/basic15.htm; Inter-American Commission on Human Rights, What Is the IACHR?, http://www.iachr.org/what.htm (last visited Aug. 22, 2006).

similarly helped to establish how the nation-state views its obligations under those treaties.55

Moreover, in the truly Westphalian approach, the petition processes in the supranational cases likely would be viewed as problematic, since they give status to individuals vis-à-vis sovereign states.56 Only the “public” nation-states belong in the international legal discourse, and not the “private” individuals and organizations that have brought petitions to the Inter-American Commission on Human Rights and the World Heritage Commission.57

The traditional Westphalian narrative thus would consider ties to place only as they relate to the obligations of nation-states. Place matters as territory, and falls inside or outside of the boundaries of a particular state.58 The spaces that matter are state spaces, and climate change litigation forms part of an international law dialogue through its interaction with those spaces. The subnational spaces, branches of government, and multiple participating public and private actors represented in three-dimensional geographic model are relevant

55 See, e.g., See Gbemre v. Shell Petroleum Dev. Co. Nigeria Ltd. et al., [2005]—F.H.C.N.L.R.—(Nigeria), available at www.climatelaw.org/media/gas.flaring.suit.nov2005/ni.shell.nov05.decision.pdf; Climate Justice, Climate Impacts of German Export Credits to Be Disclosed, http://www.climatelaw.org/media/Germany (last visited Mar. 1, 2006).56 Beth Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DEPAUL L. REV. 433 (2002). These issues also have arisen in the question of individual responsibility in the international criminal law context. See André Nollkaemper, Concurrence Between Individual Responsibility and State Responsibility in International Law, 52 INT’L & COMP. L.Q. 615 (2003).57 Petition to the World Heritage Committee Requesting Inclusion of Belize Barrier Reef Reserve System in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (Nov. 15, 2004), available at http://www.climatelaw.org/media/ UNESCO.petitions.release/belize.barrier.reef.doc [hereinafter Belize Petition]; Petition to the World Heritage Committee Requesting Inclusion of the Huascaran National Park in the List of World Heritage in Danger as a Result of Climate Change (Nov. 17, 2004), available at http://www. climatelaw.org/media/UNESCO.petitions.release/peru.huascaran.national.park.doc [hereinafter Peru Petition]; Petition to the World Heritage Committee Requesting Inclusion of Sagarmatha National Park in the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures & Actions (Nov. 15, 2004), available at http://www.climatelaw.org/media/UNESCO. petitions.release/nepal.sagarmatha.national.park.doc; DONALD R. ROTHWELL, SYDNEY CTR. FOR INT’L AND GLOBAL LAW, GLOBAL CLIMATE CHANGE AND THE GREAT BARRIER REEF: AUSTRALIA’S OBLIGATIONS UNDER THE WORLD HERITAGE CONVENTION (Sept. 21, 2004), available at http://www.law.usyd.edu.au/scigl/SCIGLFinalReport21_ 09_04.pdf; Petition to the World Heritage Committee Requesting Inclusion of Waterton-Glacier International Peace Park on the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions (Feb. 16, 2006), available at http://law.lclark.edu/org/ielp/ objects/Waterton-GlacierPetition2.15.06.pdf; see also Frug, supra note Error: Reference source not found. I have explored this problem in Osofsky, supra note Error: Reference source not found.58 See Richard T. Ford, Law’s Territory (A History of Jurisdiction), 97 MICH. L. REV. 843 (1999).

only in so far as they are instrumental in influencing state spaces; they do not form part of the formal map.

B. Modified Westphalian Spaces

Contemporary international legal theory almost never hews to the strictures of the traditional Westphalian vision. In fact, many of the leading theoretical approaches—even ones that vigorously disagree with one another—would be characterized most accurately as presenting modified Westphalian models. For example, Jack Goldsmith and Eric Posner present a perspective on international law that contrasts greatly with that of Harold Koh, but both approaches agree upon the central formal role of the nation-state (the Westphalian move) while looking inside nation-state decisionmaking (the modification).59

Despite the conceptual and political diversity within this category, modified Westphalian approaches share foundational commonalities in how they view the spaces of international law. The nation-state’s internal spaces are far less opaque than in a traditional Westphalian construction. Harold Koh’s theory of transnational legal process, for example, explains states’ compliance with rules of international law from an obedience born of norm internalization; that internalization process happens through state and nonstate actors interacting in a variety of domestic and international fora.60 Although the nation-state’s consent—to the norm itself and to compliance with it—ultimately grounds international law, the space in which that consent happens is no longer impenetrable. Additional public and private actors form part of the Westphalian lawmaking process, and that changes how the states themselves should be viewed.

The transparency of the traditional Westphalian vision largely remains in the modified Westphalian theories, however. These theories still presume the centrality of the nation-state for international law, and do not dismantle fundamentally the consent-based architecture of the international legal system. They argue about the extent to which international law matters and its appropriate boundaries, but they assume that this type of law—whatever its import and however disaggregated the process by which it is made—is constituted, at least formally, through consensual agreements between equal sovereigns. 61

59 Compare GOLDSMITH & POSNER, supra note Error: Reference source not found, with SLAUGHTER, supra note Error: Reference source not found & Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, 22 BERKELEY J. INT’L L. 337, 339 (2004). 60 See Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, supra note Error: Reference source not found.61 See, e.g., GOLDSMITH & POSNER, supra note Error: Reference source not found, at 4–5; SLAUGHTER, supra note Error: Reference source not found, at 1–35; Koh, Jefferson Memorial Lecture: Transnational Legal Process After September 11th, supra note Error: Reference source not found, at 338–39.

The Geography of Climate Change Litigation provides an example of a modified Westphalian narrative of climate change litigation. Through analyzing the ties to place in cases at multiple levels of governance, the article portrays a disaggregated vision of international decision-making that intertwines a multiplicity of decisionmakers at different scales;62 the state is thus far less opaque than in the traditional Westphalian view. However, it views the nation-state, particularly in its regulatory relationship with multinational corporations, at the core of this transnational dialogue. While the account does not treat state authority as presumptively justified, it acknowledges its centrality and does not focus on legitimacy questions. In so doing, it provides a relatively transparent vision of the nation-state’s role in the international legal system.

Although the details of why these cases matter would vary greatly across the range of modified Westphalian theories, the accounts likely all would share two basic characteristics with the above narrative. First, they would acknowledge these cases as relevant to the international legal process of regulating climate change. Whether operating from the perspective that states make decisions normatively or based out of self-interest, these theories recognize the relevance of looking inside why states do what they do. Their narrative of these cases—from subnational to supranational—would view them as intertwined with more formal international lawmaking. Although the Minnesota Court of Appeals does not mention international law,63 a transnational judicial process scholar likely would view it as helping to internalize norms around regulation of greenhouse gas emissions.

Second, they would not engage these cases as fundamental challenges to the Westphalian order. Certainly, Goldsmith and Posner embrace a far more limited conception of the boundaries and roles of international law than does Koh.64 But even Goldsmith and Posner embrace international law as a “real phenomenon”65 and justify state centrality on the basis that “international law addresses itself to states, and for the most part, not to individuals or other entities such as governments.”66 These cases might be part of a narrative of climate change in which the nation-state is less opaque, but they would be fit within the transparent power of the nation-state. For instance, the modified Westphalian would view the Supreme Court’s upcoming decision about whether the EPA is acting within its discretion in not regulating greenhouse gas emissions from motor vehicles under the Clean Air Act67 as relevant to transnational governance beyond its direct impact

62 See Osofsky, supra note Error: Reference source not found, at 1813–1818. As noted in my initial article, this disaggregated model has structural similarities to, but conceptual differences from, the one presented by Anne-Marie Slaughter in A New World Order (2004). See Osofsky, supra note Error: Reference source not found, at n.85.63 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998).64 See supra note Error: Reference source not found and accompanying text.65 GOLDSMITH & POSNER, supra note Error: Reference source not found, at 225.66 Id. at 5.67 Massachusetts v. EPA, 433 F.3d 66 (D.C. Cir. 2005), cert. granted 2006 WL 1725113 (U.S. Dist. Col. June 26, 2006) (No. 05-1120).

on U.S. treaty and customary international obligations, but would still view those obligations as international law itself.

Ties to place would enter the modified Westphalian analysis, therefore, primarily as a way to explain the process by which the nation-states engage in regulation. An explicit engagement with place would thicken many of the leading accounts’ efforts to open the black box of the nation-state. For an interest-based approach,68 a focus on place would help to explain the spaces for states’ interests more clearly. Similarly, theories that believe states make decisions based on internalized norms69 would benefit from considering how these ties influence the spaces for norm development. The multiplicity of ties does not necessarily undermine the Westphalian presumption, but does help to penetrate the opaque nation-state and reveal public and private spaces within it relevant to the international legal discourse.

C. Pluralist SpacesPluralist approaches part ways with these modified Westphalian ones primarily by decentering the nation-state. They argue for a theory of international law in which the formalized acts between sovereign consenting states are no longer the primary behavior that constitutes international law-making. Since McDougal and Lasswell’s initial portrayal of a pluralist vision of international law, both New Haven School scholars70 and others—such as Elena Baylis,71 Paul Berman,72 William Burke-White,73 Janet Koven Levit,74 Sally Engle Merry,75 Ralf Michaels,76 Balakrishnan Rajagopal,77 and me78—have further explored the contours of what is typically termed “global legal pluralism.”79

68 For a selection of interest-based approaches, see FOUNDATIONS OF INTERNATIONAL LAW AND POLITICS, supra note Error: Reference source not found, at 26–110.69 For a selection of norm-based approaches, see id. at 111–204.70 See, e.g., Myres S. McDougal & Harold D. Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AM. J. INT’L L. 1 (1959); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, The World Constitutive Process of Authoritative Decision, 19 J. LEGAL EDUC. 253 (1966–67); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 VA. J. INT’L L. 188 (1967–68).71 Elena Baylis, Parallel Courts in Post-Conflict Kosovo, 32 YALE J. INT’L L. 1 (forthcoming 2007).72 Paul Schiff Berman, Global Legal Pluralism (Draft Manuscript) (On File with Author). 73 William W. Burke-White, International Legal Pluralism, 25 MICH. J. INT’L L. 963 (2004).74 Janet Koven Levit, A Bottom-Up Approach to International Law Making: The Tale of Three Trade Finance Instruments, 30 YALE J. INT’L L. 125 (2005).75 Sally Engle Merry, International Law and Sociolegal Scholarship: Towards a Spatial Global Legal Pluralism, __ STUDS. IN L. POLITICS & SOC’Y__ (forthcoming 2007).76 Ralf Michaels, The Re-State-Ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism, 51 WAYNE L. REV. 1209 (2005).77 See Rajagopal, supra note Error: Reference source not found.78 See Osofsky, supra note Error: Reference source not found.79 I have argued, however, that “multiscalar legal pluralism” would be a more appropriate label. See id.

Although a true pluralist approach would view the state as merely one lawmaker among many, those that I include as “pluralist” international legal theorists generally do acknowledge the state as particularly important. This acknowledgement is a demoting of the state from the pedestal it occupies in the various Westphalian approaches, but the line between approaches I am characterizing as modified Westphalian and those I am characterizing as pluralist is often quite fine. Levit’s conceptualization of “bottom-up lawmaking,” for example, notes its commonalities with both transnational legal process and transgovernmentalism, but distinguishes them because of their greater focus on states.80 Similarly, as noted above, it is ambiguous which of the two approaches best captures Anne-Marie Slaughter’s work.81

With respect to nation-state opaqueness, pluralists share much in common with modified Westphalian scholars. Their accounts consider the ways in which actors other than the nation-state create norms and legal rules, and the interactions among all of the relevant actors. In their descriptions and explications, international lawmaking moves beyond the opaque Westphalian notion of state consent to a nuanced dance among multiple normative communities.82

The bigger divergence comes through an examination of transparency. The pluralists questioning of the presumption of nation-state centrality also undermines the transparency underlying the Westphalian model of the international legal system. The normative Westphalian justification of the international legal system rests on the presumption that consent by sovereign equals drives the system. Just as the city is viewed as transparent and irrelevant because it is an administrative unit of the state,83 international law’s legitimacy flows transparently from the centrality of the nation-state. If state authority no longer forms the core through which international norms and law are justified, a thicker, less transparent approach to the international legal system is needed.

A pluralist narrative of climate change litigation would thus resemble the modified Westphalian one in its acceptance of this litigation as relevant to the story of international regulation of greenhouse gas emissions and their impacts. These cases interact with and are part of norm formation, and help to drive what states view as in their interest. Because decisionmaking does not simply rest inside the opaque state, climate change litigation can be analyzed as part of the process.

The pluralist account would differ from the Westphalian one, however, in the status it would give to this litigation as lawmaking. As I have explored in depth in Climate 80 See Levit, supra note Error: Reference source not found81 See SLAUGHTER, supra note Error: Reference source not found.82 See Berman, supra note Error: Reference source not found; see also Levit, supra note Error: Reference source not found, at 175–94. This concept builds on the “interpenetrating communities” described by the New Haven School. LASSWELL & MCDOUGAL, supra note Error: Reference source not found, at xxi.83 See Ford, supra note Error: Reference source not found, at 1877.

Change Litigation as Pluralist Legal Dialogue?, this approach might treat subnational and national cases, as well as the informal import of supranational petitions, as part of a hybrid model of international lawmaking.84 For the pluralist, the litigation is important not only as part of the state decisionmaking process, but also as a lawmaking process in its own right. The tribunals, and the actors engaging with them, are crafting the international legal response to climate change. The Minnesota Court of Appeals,85 for instance, might be viewed by a pluralist as acting as an international lawmaker through viewing carbon dioxide as a pollutant based on its contribution to global climate change; its decision impacts how some of those emissions are being regulated, and therefore the phenomenon that is being regulated at multiple levels of governance.

Ties to place might enter the pluralist narrative through “multiple ports.”86 At the simplest level, looking at how tribunals, litigants, and claims connect to places helps to define the spaces occupied by the normative communities relevant to the lawmaking dialogue. More foundationally, these normative communities intertwine with issues of identity, which has a complex relationship with place. A geographic approach thus provides a critical tool for pluralists to identify and understand the public and private spaces included in their hybrid international lawmaking narrative.

D. Critical SpacesCritical approaches do not simply reject the centering of the state, but rather question the legitimacy of the nation-state structure on which the international legal system rests. They criticize the supposed neutrality of the Westphalian spaces, and explore the ways in which colonialism, racism, sexism, and subordination underlie them. These approaches vary widely in the substance of their particular critique, and what solutions—if any—they propose. But they share in common a strong skepticism of even modified Westphalian visions of the international legal system.87

As noted above, critical approaches attack both the opacity and the transparency of the Westphalian vision. For these scholars, the opaqueness problem goes beyond the multiplicity of relevant actors that dominate the modified Westphalian and pluralist conceptions. Their critiques look inside the spaces formed by these institutions and demonstrate the problematic social dynamics that infuse them. They argue that international law, born from these institutions and dynamics, is fundamentally flawed.88

84 See Osofsky, supra note Error: Reference source not found.85 See Quantification of Envtl. Costs, 578 N.W.2d 794, 796–97 (Minn. Ct. App. 1998).86 Judith Resnik used this conception of multiple ports of entry in her recent article arguing that norms are often absorbed through informal mechanisms, and then incorporated as constitutive parts of domestic identity. See Judith Resnik, Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 YALE L.J. 1564 (2006).87 See supra note Error: Reference source not found and accompanying text.88 See id.

Like the pluralist theories, critical approaches’ dismantling of the Westphalian vision does not end with penetrating the opaque state. But they go much farther in their attack on transparency than the pluralists do. For critical approaches, states are not simply one actor among others. Rather, these theories question the legitimacy of the axiomatic state sovereignty and equality on which the international legal system is supposedly built. They demonstrate inequalities within states and among states, and critique the whole Westphalian enterprise as a legitimization of colonial practices that subordinate indigenous and minority populations. They argue that the dominating spaces for nation-states served to erase unjustly the territorial claims of original inhabitants.89

For these scholars, a narrative of climate change litigation might focus on the problematic power relationships that necessitate these actions and the fundamental structural limitations on what they can achieve. To the extent that this litigation is an effort to force governmental regulatory behavior, it is stuck operating within the current and problematic confines of state sovereignty. Although the adjudication sometimes provides a mechanism for subordinated groups to voice their complaints, its ability to provide meaningful redress is constrained by the foundational flaws in the systems attempting to provide such redress.90

For example, a scholar taking this type of theoretical approach might argue that the Inuit’s petition to the Inter-American Commission on Human Rights claiming that U.S. climate change policy violates their rights demonstrates systematic flaws in avenues for redress. The Inuit are using the language of international human rights—a Western, developed country construct—to attempt to gain redress. 91 The body they are petitioning to was constructed by nation-states that devastated their indigenous populations.92 In any case, the United States has demonstrated in its response to recommendations by the Commission in previous cases that it is highly unlikely to change its behavior based on the outcome of this case.93 The petition thus cannot achieve meaningful redress because it functions in an illegitimate system. The Westphalian concern of the private actor being given an official role in the public nation-state system is supplanted by more foundational difficulties.

89 See id.90 I am exploring these quandaries in a piece for a U.C. Davis symposium on The Evolution of Colonialism in a Global Economy. See Hari M. Osofsky, Climate Change as a Neocolonial Problem?, __ U.C. DAVIS J. INT’L L. & P. __ (forthcoming 2007). 91 See Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted Dec. 7, 2005), available at http://www.earthjustice.org/library/reports/ICC_Human_ Rights_Petition.pdf.92 For a summary of the impact of colonialism on indigenous peoples in North and South America, see S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3–4 (2d. ed., 2004).93 See, e.g., Case No 11.140 , Inter-Am. C.H.R. 113/01 (2001); Response Of The Government Of The United States To October 10, 2002 Report No. 53/02 Case No. 11.140 (Mary And Carrie Dann), available at http://www.cidh.org/Respuestas/USA.11140.htm.

An examination of the relationship among place, space, and time provides a powerful tool for this type of analysis. For instance, Sherene Razack’s anthology, Race, Space, and the Law: Unmapping a White Settler Society uses a law and geography approach to explore “how the constitution of spaces reproduces racial hierarchies [through an examination of] the spatial and legal practices required in the making and maintaining of a white settler society.”94 As part of that exploration, the book describes the way in which the delineation of territory, and corresponding conceptions of empty space, helped to undergird colonial subordination.95 By considering the spaces created by legal conceptions of ties to place over time from a critical perspective, deconstructed scholarly approaches gain additional fuel for their attack on Westphalia and its vision of public international law.

E. Reflections on Theorizing State SpacesThe above narratives and the spaces they reveal lead to further difficulties for fitting climate change litigation within a coherent conception of transnational regulatory governance. Namely, the moves away from the traditional Westphalian model focus more on opacity than transparency. The latter three theoretical approaches all disaggregate state consent to varying degrees, but only the deconstructed approaches foundationally challenge whether international law should be based on the nation-state.96

To some extent this lack of parallelism may reflect a practical impulse. Without nation-state legitimacy, the entire international order threatens to collapse. Although liberal internationalists are troubled by the ongoing legacies of racism and colonialism, the international legal order helps to constrain and punish human beings’ Hobbesian impulses. The modified Westphalian and pluralist spaces that lie in the middle at least to some extent represent a hope that the nation-state can become more legitimate by a thicker account that blurs traditional Westphalia’s boundaries. By recognizing the entwinement of public and private, domestic and international, they perhaps can reconstruct an international system that has more room for justice and fairness.

The challenge thus posed for the resulting climate change narrative is not simply whether divergent perspectives can be interwoven. Rather, the more foundational question is whether a legitimate model of transnational regulatory governance can emerge that looks inside the opaque and transparent presumptions of the Westphalian model. Or more specifically, can climate change litigation represent an evolving world order that acknowledges the concerns of each of these narratives?

IV. Re-Envisioning Transnational Regulatory Governance?

94 Sherene H. Razack, When Place Becomes Race, in RACE, SPACE, AND THE LAW: UNMAPPING A WHITE SETTLER SOCIETY 1 (Sherene H. Razack, ed., 2002).95 See id. at 3.96 See supra Sections III.A–III.D.

This Part attempts to engage those questions. It begins by looking at the ways in which the substantive, structural, and conceptual dialectics of international law limit our approaches to problems like climate change. It then explores the possibilities for a “thirdspace” approach to help move discourse beyond these balkanized categories.

A. Beyond Dialectical Relationships

Our conversations about both international law and climate change are constrained by the available boxes for discourse and the dialectical relationships that we create around them. This difficulty infuses the way in which we write and teach about law, and poses barriers to cross-cutting work. For example, I have often been asked on job interviews whether I am “really” an international or an environmental person, or whether my interest in corporate responsibility is “enough” to make me a private international person. And as I approach tenure, the question of who is in “my area” begins to arise.

This Section highlights three types of dialectics that limit our narratives: (1) substantive ones that invoke disciplinary boundaries and divisions within the law such as environment/human rights, law/science; (2) structural ones that order international legal system, such as public/private, subnational/national/supranational; and (3) conceptual ones that bound our analysis of how law, politics, and power interact in the international legal system such as opaque/transparent.97 The law’s treatment of these dialectics has evolved over time, and the next chapter of “international law” needs to reengage them as an integrating tool.

1. Substantive Dialectics

In which box does climate change litigation belong? This is a question we have been forced to confront this spring at the University of Oregon School of Law as I prepare to teach a seminar on the subject for the first time. At first blush, this seems relatively simple to answer, as most people will readily categorize it as international environmental law. It was not difficult to persuade my colleagues that such a course should count towards both the environmental and international certificates.

However, such a categorization has a fundamental accuracy problem: none of the lawsuits or petitions actually involves international environmental law. The international and regional petitions claim violations of human rights or threats to world heritage. The national-level suits, especially in the United States, mostly involve efforts to force regulatory behavior through a combination of federal administrative and environmental law, or to change corporate behavior through tort law, more specifically public nuisance. The state court disputes follow the same basic pattern of the federal ones, but unsurprisingly, focus on subnational law.98 So, is my class about human rights law? World Heritage law? “Domestic” environmental law? Administrative law? Tort law?97 I have explored some of these dialectics in the specific context of the Inuit petition. See Hari M. Osofsky, The Inuit Petition as a Bridge?: Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights, __ AM. INDIAN L. REV. __ (forthcoming 2007).98 For a detailing of these suits, see Osofsky, supra note Error: Reference source not found.

Moreover, as I have written about previously, anyone of these legal categories only captures a piece of what actually matters about this litigation. One can tell an accurate narrative of human rights violations based on climate change—the Inuit do so quite powerful—but such a characterization is doomed to be partial. Climate change, like so many other problems, fits in more than one box, and no legal category is capable of providing a container that captures it fully.99

As if locating climate change within law was not hard enough, one does not have to be an expert in the subject to realize that it involves many other disciplines. Justice Scalia’s remark in the oral argument in Massachusetts v. EPA was quite telling: “I told you before I’m not a scientist. That’s why I don’t want to deal with global warming, to tell you the truth.”100 Holly Doremus has provided powerful analysis of the scientization of politics in the context of natural resource regulation, arguing that both sides of environmental debates can use science as a tool.101 Her approach is easily applicable to the climate change context, as she herself has noted.102

Climate change does not, however, simply involve law and “science,” which is itself a category that includes many other disciplines. If one applies geographic and ecological analyses of scale, for example, the arguments in Massachusetts v. EPA can be understood as a continuous process of scaling up and scaling down analysis of science and law. The petitioners pushing for greater regulation would scale down—noting specific local impacts and the feasibility of federal regulation—while the respondents continuously scaled up, claiming that its supranational dimensions made EPA’s decision not to regulate appropriate.103 And this analysis does not yet touch upon anthropology, political

99 For a discussion of this problem in the broader environmental rights context, see Hari M. Osofsky, Learning from Environmental Justice: A New Model for International Environmental Rights, 24 STAN. ENVTL. L.J. 71 (2005).100 Transcript, Massachusetts v. EPA, 2006 WL 3431932 (U.S.) (Nov. 29, 2006), at 22–23.101 See Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 ECOLOGY L.Q. 249 (2005); Holly Doremus & A. Dan Tarlock, Science, Judgment, and Controversy in Natural Resource Regulation, 26 PUB. LAND & RESOURCES L. REV. 1 (2005); Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act’s Best Available Science Mandate, 34 ENVTL. L. 397 (2004); Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 WASH. U. L.Q. 1029 (1997).102 She provides a passage from a memorandum by Frank Luntz on climate change as an example of the defensive approach. See Doremus, Science Plays Defense, supra note Error: Reference source not found at 255 (“The most important principle in any discussion of global warming is your commitment to sound science. American unanimously believe all environmental rules and regulations should be based on sound science and common sense. Similarly, our confidence in the ability of science and technology to solve our nation’s ills is second to none. Both perceptions will work in your favor if properly cultivated.”) (quoting The Luntz Research Companies, Straight Talk, The Environment: A Cleaner, Safer, Healthier America, at 138, available at http://www.luntzspeak.com/graphics/LuntzResearch.Memo.pdf). 103 I have analyzed this confluence in detail in Hari M. Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, __ OR. REV. INT’L L. __ (forthcoming

science, psychology, and sociology, just to name a few disciplines that would have helpful and distinct perspectives on climate change litigation’s significance.

An approach in which we have to either put climate change in a substantive box or view it as a dialogue among boxes thus has fundamental limitations. Understanding climate change demands viewing it as a multidisciplinary problem. Furthermore, this discussion of climate change could easily be extended to many of the problems that international law scholars regularly analyze. For example, the raging debates over torture or enemy combatants, 104 as well as private law dilemmas over how Yahoo should handle its ties to multiple places,105 involve many areas of law and other disciplines.

2. Structural Dialects

These difficulties are not simply substantive, however. They go to the very heart of units that we use to structure the international legal system. More binaries abound in unhelpful ways: Is climate change a domestic or international problem? If domestic, is it state or federal? Is it public or private?106

The problem with these questions is not simply that they all demand a “both/and” rather than an “either/or” answer if one were to answer them meaningfully.107 More fundamentally, each of the questions includes assumptions about what international law is and how we structure it.

A brief examination of scale in the above-described four approaches is instructive. If we assume Brenner’s second definition of scale as level of governance,108 how should we envision international law? As illustrated by the following diagrams, multiple possibilities exist:

2007).104 For an example of recent discussion of these issues, see Symposium, War, Terrorism, and Torture: Limits on Presidential Power in the 21st Century, 81 INDIANA L.J. 1139 (2006).105 See Paul Schiff Berman, The Globalization of Jurisdiction, 151 U. PA. L. REV. 311, 516 (2002)106 I have asked these questions in the context of the Massachusetts v. EPA case. See Osofsky, supra note Error: Reference source not found.107 For a discussion of “both/and also logic,” see SOJA, THIRDSPACE, supra note 56, at 5. 108 See BRENNER, supra note Error: Reference source not found, at 9.

Westphalian Models?

International

National

Subnational

International

National

Subnational

National

International/Subnational

National

International/Subnational

A Pluralist Model?

Supranational:Regional

Supranational:International

Subnational:Local

Subnational:State

National

InternationalLawmaking

Supranational:Regional

Supranational:International

Subnational:Local

Subnational:State

National

InternationalLawmaking

Should we view scale hierarchically, as my diagrams of Westphalian models attempt to visually represent? If we do, do we order the hierarchy based on geographic extent (the supranational belongs on top), formal power (the nation-state belongs on top), or effective power (unclear which level might belong on top)? How tall and wide should we make each piece of the hierarchy? Or, if one eschews hierarchy and envisions a hybrid process of international lawmaking, at what point—if ever—does one stop adding circles? Are those circles really containers, as envisioned here, or are they more fluid, flowing into one another? And I have not even included a diagram for the critical approaches because so many possibilities abound for how one might reconstruct after deconstruction, and it is not clear how any of them might be acceptable given the inequalities of power and resources that critical accounts of international law highlight.

These questions are not simply romps through law and geography theory, but actually have real world implications, as the context of climate change reveals. Which version of international law one chooses—assuming one has to pick a theoretical box—

fundamentally restructures the narrative of what matters in ways that might have policy implications. The more one moves away from traditional Westphalia, for example, the less plausible it is to envision solving climate change by a treaty between nation-states, even if such a treaty were politically feasible.109 And an argument emerges that such a treaty regime must somehow engage the range of actors that matter—both nongovernmental and subnational—more directly than through their contribution to the nation-state’s position and regulatory power.110

3. Conceptual Dialectics

These substantive and structural problems frame the conceptual dialectics that constrain current discourse, and also point towards the move beyond dialectical analysis that forms the focus of the next section of this piece. In particular, the opaque/transparent dialectic that Ford unpacks and that serves as the frame of Part II of this paper exemplifies the conceptual problem and the need for both/and solutions.

To do so, especially because I have been pushed—rightly so—to make my analysis less jargony, I want to push deeper into what “opaque” and “transparent” mean. Namely, I want to leave law and geography behind for a moment, and dip more directly into these concepts in the geographic literature and, in particular, introduce Edward Soja, who was also present at that 1996 symposium that Richard Ford organized111 and will figure heavily in the final section of this Part. Soja, in Postmodern Geographies: The Reassertion of Space in Critical Social Theory, provides the following account of opaque and transparent spaces:

The ‘illusion of opaqueness’ reifies space, inducing a myopia that sees only a superficial materiality, concretized forms susceptible to little else but measurement and phenomenal description: fixed, dead, and

109 Beyond the problems of the lack of U.S. and Australia participation in Kyoto and the unlikelihood of many countries who are parties meeting their Kyoto obligations, the treaty—if fully implemented—would only slow the rate of anthropogenic climate change. See RUSSIA AND THE KYOTO PROTOCOL: OPPORTUNITIES AND CHALLENGES (Anna Korppoo, Jacqueline Karas & Michael Grubb, eds. 2006) (exploring the issues facing Russia); Mindy G. Nigoff, The Clean Development Mechanism: Does the Current Structure Facilitate Kyoto Protocol Compliance?, 19 GEO. INT’L L. REV. 249 (2006) (critiquing the current CDM approach). For a technical analysis of the Kyoto Protocol, see LEGAL ASPECTS OF IMPLEMENTING THE KYOTO PROTOCOL MECHANISMS: MAKING KYOTO WORK (David Freestone & Charlotte Streck, eds., 2005). Although innovative, the Asia-Pacific Partnership on Clean Development and Climate is nonbinding. For a description of the meeting establishing the partnership, as well as reactions to it, see Fiona Harvey, FT Report – The World 2006, FT REP. 6, Jan, 25, 2006; Asian Environmentalism: More Hot Air, ECONOMIST 9, Jan, 14, 2006; Nigel Wilson & Andrew Trounson, Critics Rain Scorn on Climate Summit, AUSTRALIAN (Newspaper) 33, Jan. 14, 2006; Asia-Pacific Pact Members Launch Clean Energy Fund, available at http://www.scidev.net/News/index.cfm?fuseaction=readNews&itemid=2591&language=1 (last visited Feb. 10, 2006).110 I have made that argument in Climate Change as Pluralist Legal Dialogue?. See Osofsky, supra note Error: Reference source not found.111 See supra note Error: Reference source not found and accompanying text.

undialectical: the Cartesian cartography of spatial science. Alternatively, the ‘illusion of transparency’ dematerializes space into pure ideation and representation, an intuitive way of thinking that equally prevents us from seeing the social construction of affective geographies, the concretization of social relations embodied in spatiality, an interpretation of space as a ‘concrete abstraction,’ a social hieroglyphic similar to Marx’s conceptualization of the commodity form. Philosophers and geographers have tended to bounce back and forth between these two distorting illusions for centuries, dualistically obscuring from view the power-filled and problematic making of geographies, the enveloping and instrumental spatialization of society.112

This quote captures quite well not only the conceptual problems facing Westphalia, but also the more fundamental issue of the divided boxes that law gives us to work with when we want to solve problems. We divide the world into neat Cartesian units—the nation-states—and then use them as the center-point of our international law model. Moreover, once we create that model, the nation-state becomes an abstraction; we ignore the foundational differences between the United States and Zambia because they are both “sovereign” and “equal.” How much should we look inside those maps, organize them differently, change their scale? 113 How does it affect our international law story?

The fight between the liberal internationalists and the neorealists with which this piece started highlights how much the answers to these questions matter. Posner and Goldsmith ground their rational-choice-based theory on a set of explicit assumptions that other scholars, like Paul Berman in his review of their book, have challenged. In particular, they assume—among other things—that states have definable national-level interests and should act based on those interests.114 These assumptions are both outcome determinative and reflect a particular view of how we should map the nation-state. The national level becomes a hierachically-superior scale and the nation-state serves as merely a container holding interests. With this geographical perspective, a very limited story of international law quite naturally results.

A similar approach undergirds Posner’s more recent claim that allowing human rights claims against corporations based on climate change under the Alien Tort Statute would be normatively problematic. In his draft piece, Posner makes not only the explicit 112 SOJA, POSTMODERN GEOGRAPHIES, supra note Error: Reference source not found, at 7.113 Political geographers have engaged these issues extensively. For a helpful summary of the issues that political geographers explore, see JOHN AGNEW, MAKING POLITICAL GEOGRAPHY (2002). For an analysis of the interactions between political geography and political science, see Alexander B. Murphy, “Living Together Separately”: Thoughts on the Relationship Between Political Science and Political Geography, 18 POLITICAL GEOGRAPHY 887 (1999). For a discussion of some of these issues in the law and globalization literature, see David Held & Andrew McGrew, The Great Globalization Debate: An Introduction, in THE GLOBAL TRANSFORMATIONS READER: AN INTRODUCTION TO THE GLOBALIZATION DEBATE 1 (David Held & Andrew McGrew, eds., 2d ed., 2003); see also Terence C. Halliday & Pavel Osinsky, Globalization of Law 32 ANNUAL REV. SOCIOLOGY 447 (2006)114 See Berman, supra note Error: Reference source not found.

assumptions about how such litigation might focus on corporations, but also implicit assumptions in his analysis of the costs and benefits of such litigation about where this litigation takes place and how law and policy interacts around it. Although the dismantling of these assumptions and the situating his normative arguments in broader context is beyond the scope of this piece,115 a brief note is in order about their geography. In order for Posner’s argument to have cogency, one has to map the world in a way in which one envisions U.S. courts decisions’ as developing “green-house gas policy for Australia, Ecuador, Sweden, and Chad”116 in a range of problematic ways that he describes. The boxes into which Posner places litigation and the nation-state frame a world-view in which one tells a story of human rights claims in U.S. courts about climate change as creating unfair outcomes for “poor people today.”117

Since I disagree with both Posner’s implicit and explicit assumptions and conclusions, it is tempting to argue against his narrative—as I plan to do elsewhere118—as one out of step with the realities of climate change regulation.119 But such a rejection would miss the central point that I am making here about the dangers of our conceptual dialectics. Namely, if we are simply fighting for whose story—of international law more broadly or of regulation of anthropogenic climate change in particular—wins the day, we miss the way in which our dialectical structures and approach constrain us. There is simply not that much room for synthesis between Harold Koh and Jack Goldsmith, who debated each other on March 7, 2007 at Yale Law School.120 Accepting a world in which one encamps and fights for one’s vision of law and policy—quite possibly an important normative move in the current moment—risks silencing discourse and eliminating nuance. This dilemma frames the final question that this article poses: Can and should one create “thirdspaces” for international law and for climate change litigation?

B. “Thirdspace” Approaches to International Law and Climate Change Litigation?

In his book, Thirdspace: Journeys to Los Angeles and Other Real-and-Imagined Places, Edward Soja introduces Thirdspace as:

the space where all places are, capable of being seen from every angle, each standing clear; but also a secret and conjectured object, filled with illusions and allusions, a space that is common to all of us yet never able

115 I plan to write a book review of two books on climate change and environmental justice that responds to his arguments.116 Posner, supra note Error: Reference source not found, at 14.117 Id. at 19.118 See supra note Error: Reference source not found.119 Similarly, the one time in my life I felt strongly enough about an Op-Ed in the New York Times to write the editor was when Posner argued against Bush modifying his detention policy without acknowledging the dangers of Korematsu. It did not make the letters page, but I later posted a variation of it on IntLawGrrls. Mata Hari, Detainees, Internment, and Outsider Voices, http://intlawgrrls.blogspot.com/search/label/Detainees. 120 See http://www.yalefedsoc.org/calendar.html#3-8,

to be completely seen and understood, an ‘unimaginable universe,’ or as Lefebvre would put it, ‘the most general of products.’121

Soja does not simply leave the reader with this space that somehow contains all binaries, however. He goes on to explain that:

Thirding-as-Othering is much more than a dialectical synthesis à la Hegel or Marx, which is too predicated on the completeness and temporal sequencing of thesis/antithesis/synthesis. Thirding introduces a critical “other than” choice that speaks and critiques through its otherness. That is to say, it does not derive simply from an additive combination of its binary antecedents but rather from a disordering, deconstruction, and tentative reconstitution of their presumed totalization producing an open alternative that is both similar and strikingly different.122

In other words, rather than trying to produce something from the fight among opposing views, progress can be made by creating a space that somehow allows for all of the difference.

When I envision thirdspace more concretely, particular moments of surprise and conceptual reconfiguring come to mind. I remember a story from a nonviolence workshop I attended of a woman who reacted to the threatening men coming at her on the dark, isolated street by acting as if she was mentally ill; she began talking to the trash can and the men left her alone. I also think of a moment in my career as a young litigator in which opposing counsel was about to file a motion against me because I had made a technical error. After I responded by acknowledging the mistake and also talking warmly about how I try to be as collegial as possible in the context of litigation, he replied with a little embarrassment that he tries to do the same. That motion was never filed. In a more academic context, I think of those delicious moments in writing where one suddenly breaks form and acknowledges the self and its stories rather than retaining careful third person distance. In each of those moments, there is a feeling of risk with possible consequences, but at the same time, in the choice of marginality, as Soja terms it, there is also an opening of new possibilities.123

This Part explores whether this concept of thirdspace might be useful in the context of international law and climate change litigation. It engages what it would mean to create a thirdspace in the current polarized discourse, which occurs in the broader context of fundamentally divergent constructions of nation-state spaces. From that base, it asks the critical normative question of whether a thirdspace approach might provide new possibilities for constructive progress.

1. Constructing a Thirdspace

121 SOJA, THIRDSPACE, supra note 56.122 Id. at 60–61.123 SOJA, THIRDSPACE, supra note 56, at 97–100.

This project of construction is quite a daunting one, which may be why Thirdspace did not set off an instant policy revolution. In practical terms, what would it mean to simultaneously acknowledge the validity of perspectives in intense conflict with one another? How can one view the nation-state as at the center of power, as one power source among many, and as an invalid product of subordination at the same time? This section renarrates climate change and international law in a way that attempts to answer those questions.

In thirdspace, the four above narratives of climate change litigation—and other possible ones that I did not include—come together, but not in a synthesis. The suits and petitions help to shape nation-state approaches to their traditional lawmaking regarding climate change, serve as forms of lawmaking in their own right, and are constrained by the fundamental problems with the international legal system. The stories of this litigation do not build upon one another, but coexist as versions that each contains its own validity. Rather than choosing one narrative as truth that excludes the others, thirding allows for a recognition of each of their truths.

Such an approach is not simply my striving for a “kumbaya” moment in which people who wildly disagree with one another sit down in a circle, hold hands, and find their common ground. Rather, it represents a recognition that an attempt to solve the problem of climate change through only one of these stories will utterly fail. The traditional and modified Westphalian narratives capture the role that treaty and customary international law must play in solving the problem, but they may understate the significance of other forms of lawmaking.124 Pluralist and critical approaches both acknowledge important, other sources of power, but their analyses of hybridity and attempts to move away from the valorization of the state often choose not to focus on the role that treaties should play.125

The point here is not that these approaches are incapable of telling complete stories or providing nuanced policy solutions, but rather than they tend not to because of where they focus. Transnational legal process tells an incredibly helpful narrative of the norm internalization process, which could help craft more thoughtful approaches to climate change litigation and policy, but the center of gravity of such proposals will simply be different than the hybrid models that might come out of a global legal pluralist account. We lose something if we include only one story.

The value of thirding for international legal discourse more broadly was reinforced for me at a recent conference I attended at Yale Law School on whether a “new” New Haven School was emerging. The discourse throughout the day—which was at times somewhat fraught—moved primarily between three interrelated but conceptually distinct approaches to engaging international legal problems: (1) the law, science, and policy approach often referred to as the New Haven School; (2) transnational legal process; and (3) global legal pluralism.126 At the end of the day, in the final session, we puzzled over

124 See supra Part III.A & II.B.125 See supra Part III.C.126 I provided this description in my comment/question during the final panel of the day.

whether a new school of thought was emerging from some of the unities among an emerging generation of scholars whose work dances among these and other approaches.127 As this discussion took place, the room contained current Yale Law School students and professors, Yale Law School graduates who were professors elsewhere, and many scholars who have no affiliation with Yale, but often work very closely with that second group. In fact, the day before this gathering, the Junior International Law Scholars Roundtable—a group that includes junior, recently tenured, and soon-to-be professors—had met to discuss interdisciplinary in their work and many scholars from that gathering stayed for the Yale Journal of International Law symposium.128

I left this discussion with a number of questions, many of which were asked over the course of the discourse. Most fundamentally—a question with which Dean Harold Hongju Koh began—what does it mean to establish a school of thought?129 As I asked in the final session, how would such a school of thought interact with those three threads and how much conceptual unity is needed to establish such a school? And as we grappled with labels, important questions—from a number of people throughout the day—emerged about how to avoid devaluing the “original” New Haven School and excluding those who have no affiliation with Yale?130

In my view, many of the tensions over the course of the day surrounded either/or choices and the not-infrequent moments of progress occurred when we allowed ourselves to engaged in thirding. So, for instance, if we were choosing between an “original” and “new” New Haven School, the law, science, and policy approach was brought into conflict with whatever was viewed as coming after it.131 When we decide whether or not to use a Yale-affiliated moniker, we face decisions over embracing the power that such a name brings and the problem of inclusion/exclusion.132

The two middle panels of the day, however, simply danced among the three approaches without taking a position on these either/or questions. For instance, Rebecca Bratspies, Janet Levit, Melissa Waters, and I gave presentations that drew from all three threads and did not attempt to answer the question of which one should be chosen as the “new” New Haven School. We played with future directions for international legal thought and built upon each other’s ideas, but did not try to achieve some synthesis that would present a unified school of thought to the group.133 That approach was facilitated by the fact that we share a great deal of common ground in our interests and values.

127 The Opinio Juris website has a summary of the discourse. See Jessica Karbowski, Is There a ‘New’ New Haven School, http://www.opiniojuris.org/international_legal_theory_and_teaching/ (Mar. 11, 2007).128 The events had intentionally been organized in tandem.129 See Harold Hongju Koh, Is There a “New” New Haven School of International Law?, http://www.yale.edu/yjil/Misc/2007%20new%20new%20haven.ppt. 130 For a brief summary of the session that does not include the question period, see Karbowski, supra note Error: Reference source not found.131 W. Michael Reisman made this point in the first session. See Jose Minan, Historical Perspectives on the New Haven School, http://www.opiniojuris.org/posts/1173668170.shtml. 132 See supra note Error: Reference source not found and accompanying text.133 For a summary of this panel, see Jessica Karpowski, YCS Applications of the New Haven School: Professional Scholarship, http://www.opiniojuris.org/posts/1173668896.shtml.

This rather long example leads directly back to the context of climate change litigation. This both/and approach was particularly evident when Dean Koh, who was moderating the panel, asked the first question about how we would apply our theoretical approaches to Massachusetts v. EPA. We each told separate, but interrelated, narratives from our conceptual perspectives about why this case mattered. We referenced each other, but did not attempt to tell one story. Rather, the discussion of the case’s importance through multiple lenses simply included whatever insights we provided.134

The mutual coexistence of the either/or and the both/and at this conference—a dynamic which is replicated in different variations at most academic conferences or policy discussions—only raises further issues. Arguably both framings provide important insights. In law and policymaking, we have to make hard choices; in those choices either/or dichotomies may be unavoidable. At the end of the day, for example, there either is or is not a “new” New Haven School and each key actor will make specific choices about how to approach the problem of climate change. However, despite the existence of those choices and differences, taking time to allow the different and overlapping narratives to coexist may allow for better decisions in that final moment. The openness and play of thirding allows for riffs—not unlike those Keith Aoki has described in the context of the creation of blues music135—in which one can potentially achieve an understanding unavailable from the trenches of conflict.

2. Implications of Thirding

Acknowledging the potential value of thirding does not, of course, resolve when such an approach might be appropriate and how it fits into the broader discourse on climate change litigation and international law. This section explores that terrain. It suggests that an effort to create thirdspace would be particularly helpful in the period before a final either/or decision must be made.

Discussions about climate change regulation often are framed in terms that reflect a particular view of the nation-state and its role in international law without acknowledging other possibilities. So, for instance, a proposal might focus on the future of the international treaty regime with little acknowledgement of how such a regime might interact with nonstate or substate actors. Or, conversely, a dialogue about AB 32,136 California’s new law governing greenhouse gas emissions, might not situate it in the broader context of other “international” regulatory efforts taking place.

This tendency to treat different approaches to climate change regulation as discrete options likely reflects a practical reality: It would be impossible to simultaneously consider all of the efforts taking place on climate change with every regulatory decision. Such an approach would be time-consuming, burdensome, and potentially paralyzing. 134 See id.135 See Keith Aoki, Distributive and Syncretic Motives in Intellectual Property Law (with Special Reference to Coercion, Agency, and Development), 40 U.C. DAVIS. L. REV. 101 (2007).136 California Global Warming Solutions Act of 2006 (AB 32), Cal. Health & Safety Code §§ 38500 et seq.

Moreover, although it would be helpful to approach climate change regulation more holistically and systematically, regulatory redundancy arguably allows for innovation and improves the possibility of getting emissions under control.137

A preference for thirding in the early stages of decisionmaking, however, does not require an impossibly complex process that includes every conceivably relevant factor. Rather, it dictates a more open stance towards what those factors are. It suggests that while people are crafting the next climate change treaty, they should consider how different narratives of that agreement might change how it should be framed. Similarly, in contemplating litigation, substate actors should consider how thinking of it as influencing national policy versus as international lawmaking in its own right should influence their strategy.

By positing that seemingly—and perhaps actually—incompatible worldviews can have simultaneous explanatory value, a thirdspace approach opens up the possibility of escaping the boxes that constrain legal thinking. If we choose to take a stance of radical openness138 and view situations from multiple narrative perspectives simultaneously, we likely end up with more options on the table before our final need to make an either/or decision. And sometimes those options might change what the choices are.

Being open to a range of perspectives, however, is always easier when a high level of congruence exists. The thirding that arguably occurred on my panel at the “new” New Haven School conference was a riff among five people who fundamentally agree with one another. But taking thirdspace seriously means considering how to deal with fundamentally divergent narratives. Or, to put it more concretely, if we return to Eric Posner’s new piece—which arguably represents a convergence of the battles over international law and the discussions about how climate change litigation should fit into a regulatory scheme—what is the value of having it occupy the same space as the rebuttal to it that I plan to write?139

Posner’s piece focuses on a particular type of potential climate change litigation, international human rights claims in U.S. courts against corporations under the Alien Tort Statute. My rebuttal will suggest—among other arguments—that his assumptions and analysis lack context in a variety of ways, such as how the U.S. approach to regulating greenhouse gases compares to other countries, the range of climate change litigation within which such a suit would be occurring, or the broader analyses of climate change and environmental justice.140 If one chooses to view those two very different analyses as

137 For a discussion of the value of regulatory redundancy, see Robert A. Schapiro, Towards a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 288–90 (2005); cf. William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1 (2003) (exploring the way in which regulatory overlaps can lead to under- rather than over-regulation).138 SOJA, THIRDSPACE, supra note 56, at 5.139 See supra notes Error: Reference source not found, Error: Reference source not found–Error: Reference source not found.140 See supra notes Error: Reference source not found–Error: Reference source not found.

part of the same space rather than as simply posing an either/or, better analysis emerges. Someone contemplating a human rights suit over climate change arguably would be well-advised to consider both his concerns and my justifications. Even if the petitioner disagreed with one of us strongly, as seems likely given the divergence in our views, treating both approaches as relevant narratives allows for a fuller discourse about when such a suit would be appropriate and how it could be framed to avoid the issues that he raises. That discourse does not necessarily result in a synthesis of our views, but ensures that the chosen narrative reflects the multiplicity of narratives that exist.

Such an approach, at first blush, may seem deceptively simple. It begins to sound a bit like the motto of the Independent Party of Yale Political Union, which I chaired as an undergraduate, “hear all sides.”141 But such an openness is rare in the current discourse over both climate change litigation and international law. I have had colleagues who view themselves as moderates agonize to me over how they can possibly situate their work in the current climate. Analyses of the Kyoto Protocol and future treaties, of climate change litigation, and of how to structure cap-and-trade regimes tend to occur relatively separately from one another. I encounter mostly non-overlapping groups of people in discussions over climate science, climate law, international legal theory, and race and social justice. Until we make more of a commitment to thirding, we box our discourse in unhelpful ways.

141 The Independent Party of the Yale Political Union, http://www.yale.edu/ip/javaindex.htm.

V. Concluding Reflections

This article opens with a claim that we are at a crucial juncture in the discourse over climate change and international law. It concludes by suggesting that our response to this crisis should not be one of foreclosing possibilities. If we are to make progress on difficult, cross-cutting issues, we must step outside of our camps, labels, and loyalties to engage in serious, creative thinking.

Such an approach does not preclude a hard fight for our values. We face hard either/or choices with respect to both our international legal commitments and our response to global climate change. However, as each version of “us” engages in such a struggle, we must find the moments in which thoughtful dialogue is possible. As I said to that litigator who was contemplating a motion against me, litigation forces us to be in adversarial positions at times, but I try not to be in them whenever possible.

Law and geography approaches serve as a helpful tool in such an effort. By pushing us to interrogate our geographic assumptions, they provide possibilities for re-ordering and re-envisioning. Such analyses do not eliminate core areas of disagreement, but they perhaps create more opportunities for us to dwell in thirdspace.