Invited Article

Transnationalism, Unilateralism and International Law

Gregory Shaffer^a1 and Daniel Bodansky^a2

^a1 University of Minnesota Law School, Minneapolis, MN, United States. Email: shaffer@umn.edu. We thank Lynn Parins for his research assistance. All errors are our own.

^a2 Arizona State University, Sandra Day O’Connor College of Law, Tempe, AZ, United States. Email: Daniel.Bodansky@asu.edu.

Abstract

When we speak of transnational environmental law and legal process, we are concerned with the migration and impact of legal norms, rules and models across borders. Such migration can occur through the mediation of international law and institutions, or through the impact of unilateral legal developments in one jurisdiction that affect behaviour in others. The paper discusses the importance of assessing transnational environmental law in light of the constraints facing consent-based international environmental law, examines the trade-offs between transnational and international environmental law from the perspective of legitimacy, and concludes by discussing the important but delicate relation of international law to transnational environmental law as both a check and a consolidator. International law should guard against the self-serving unilateral use of transnational environmental law, but it should do so in a way that preserves (and does not shut off) the dynamic, responsive character of the transnational environmental law process. Otherwise international law itself will be delegitimized.

(Online publication December 21 2011)

Keywords

• Transnational law;
• Transnational legal process;
• International environmental law;
• Unilateralism;
• Climate change