In the news: stories relevant to international environmental law

We are now moving on to International Environmental Law in our IL course. Here are some recent stories to get us thinking:

First, you may want to look at this projection of “what Earth will look like if we melt all the ice”. Florida is gone, amongst other changes.

Second, it is worth looking at the issue of fragmentation (and incoherence) in international environmental law. This is an important theme is this issue-area. Marc Benitah notes over at the International Economic Law and Policy Blog that the Faroe Islands are issuing simultaneous complaints under the UN Convention on the Law of the Sea and at the WTO. The WTO overlaps with a lot of other fora, so this is not entirely surprising. But the ramifications are important. One question I have is how small countries such as this can expect to have the resources to pursue such cases in multiple fora.

Finally, the West Coast is trying to do its own thing on the environment (again). This time California, Oregon and Washington are “joining” British Columbia to coordinate environmental policy. The Pacific Coast Action Plan on Climate and Energy is an attempt to deal with climate change at the sub-national level. While individual states in the US cannot pursue trade-related deals on their own, there is little in the constitution that prevents them from making these sorts of pacts. So it raises all sorts of interesting issues regarding sub-national attempts to create foreign policy (and international law) in the US.

In the news: chemical weapons, treaties, and privacy

Before my International Law class moves on to International Environmental Law, it is worth noting news from the last week that is relevant to topics we recently covered.

Bond v. United States
First, the Supreme Court heard arguments in Bond v. United States. This case should interest us for a number of reasons. One is that it deals with the ability of Congress to implement treaties using statutes that could potentially intrude on the sovereignty of individual states. This is being viewed as a contemporary version of Missouri v. Holland.

The other, very intriguing, issue is whether the Chemical Weapons Convention can apply to a conventional poisoning case. Essentially one woman poisoned another woman in Pennsylvania (for sleeping with her husband and getting impregnated). The case, which normally would be handled by local and state authorities, ended up becoming a federal case as violation of the Chemical Weapons Convention. Which on the face of it is a very odd interpretation of that treaty.

For more information, see:
        SCOTUSblog’s page on the case
        Articles in Opinio Juris by Peter Spiro and Marty Lederman
        Articles at Volokh Conspiracy

Privacy and Spying
Spying is all over the news. The US is, apparently, spying on just about everyone. Or, at least, that is what one must think after reading all of these stories. Over at Lawfare, Orin Kerr has a piece discussing whether U.S. law should protect the privacy of foreigners abroad. This is an interesting spin on the themes we have discussed in our class about the extraterritorial application of US law.

As for all of that spying on heads of states stuff, I must say I am shocked anyone is shocked. Hasn’t that always been the case? Isn’t that what we expect?

ATS Update: Daimler v. Bauman

This should be of interest to my International Law students. The Alien Tort Statute (ATS) has been used as a way to bring foreign human rights claims into US courts.

Adam Steinman has a post on Opinio Juris about the oral arguments in this case, which resembles Kiobel. The Ninth Circuit in California found that Daimler (an otherwise foreign defendant) is subject to California jurisdiction given its American subsidiary, Mercedes Benz USA.

The key issue for SCOTUS:

the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

The likely outcome? As Steinman notes:

While it appears unlikely that the Court will endorse the Ninth Circuit’s conclusion that general personal jurisdiction existed over Daimler, it is possible that the Court’s opinion will be a narrow one.

That is, it is unlikely but still possible they will rule that the specific circumstances here allow for jurisdiction to be asserted.

By the way, the substance of the case is that a different subsidiary of Daimler in Argentina was alleged to have committed human rights violations in Argentina. SCOTUS isn’t concerned with that issue, only the issue of whether we can establish jurisdiction in the US under the ATS.

“Behavioral International Law”

Opinio Juris is hosting a discussion of the “behavioral” approach to international law, beginning with a post by Tomer Broude. As he begins to describe it,

the behavioral research agenda aims to explore the characteristics of real decision-making processes of different types of actors, under different circumstances.

This approach might be useful for some of my International Law students who are currently working on drafts of their research papers (hopefully!).

Kiobel v. Royal Dutch Petroleum : SCOTUSblog

Kiobel has been decided. The scope for using the Alien Tort Statute to bring human rights claims is now more limited.

The opinion: http://www.supremecourt.gov/opinions/12pdf/10-1491_8n59.pdf

Commentary:

 

The ICC’s impacts

There is an interesting discussion at the Monkey Cage on the impacts of the ICC. This should interest some of my International Law and Africa in World Politics students.

“How is the ICC supposed to work?” (James Fearon)

To me it looks like a well-intentioned but not fully thought out institutional experiment that will tend to be used primarily as a way to make rich countries feel better about cases whether they aren’t willing to intervene, while the institution itself sometimes has consequences that contradict its avowed purpose.

“The ICC, Deterrence, and Amnesty” (Erik Voeten)

My own tentative view is that the ICC likely has little meaningful effect on deterring or encouraging the worst forms of human rights abuses but may have a marginally positive effect at reducing abuses in countries where “mid-level” human rights abuses occur; not unlike the international human rights regime more generally.

Global Elections: the race to be the next leader of the WTO

After 8 years in office, Pascal Lamy, the long-standing, cool-headed leader of the World Trade Organization will step down. Lamy (France, and former EC Commissioner for Trade) was the fifth Director-General of the WTO. Past leaders included Supachai Panitchpakdi (2002-2005, Thailand), Mike Moore (1999-2002, New Zealand), Renato Ruggiero (1995-1999, Italy) and Peter Sutherland (1993-1995, Ireland, also the last leader of the GATT). (WTO)

Lamy has presided over the WTO during some difficult times. Most notably, he has repeatedly tried–and failed–to revive the Doha round of trade talks. This has not been his fault, the D-G has limited power to impact members’ behaviors. And one could say that he has succeeded in fending off the complete death of the negotiations. However, one can wonder whether a fresh face might help revive talks.

Who is running for office?

According to Reuters, we only have two names at the moment (Reuters). Formal nominations will be made in December

The African Candidate
It is common for regional blocks to put forward their own candidates and the African Union may have the clearers mechanisms for doing this. Several potential African candidates have been mentioned. Nigeria’s Finance Minister, Ngozi Okonjo-Iweala, who also was an important candidate for the World Bank’s top job earlier this year, has reportedly expressed no interest in running for the WTO position (PeaceFMOnline). Nigeria’s current trade minister, Olusegun Aganga, has also been mentioned. Another possibility that has been mentioned is South Africa Trade Minister Rob Davies (Reuters). But apparently the AU has decided it will be none of the above. There are a number of reports stating that the African Union has decided that Ghana’s former trade minister, Alan Kyremanten, should hold the post (Ghana Joy Online; AfricaNews.com). Kyerematen currently is the trade advisor at the UN Economic Commission for Africa and head of the African Trade Policy Centre. (thisafrica.com). As Reuters reports, this was a contentious decision. However, if he can get all of Africa’s WTO members to back him, then that would be (a) the first time all of them supported the same candidate and (b) a significant portion of the WTO’s membership, which could go a long way towards getting him elected to the job.

New Zealand Again?
Another likely candidate is New Zealand’s trade minister Tim Groser. However, it has barely been a decade since someone from New Zealand held the post, making his chances unlikely (The New Zealand Herald).

Other possibilities
Reuters mentions a number of possible candidate from Mexico and Costa Rica, with some broader speculation about Brazil’s Ambassador to the WTO, Roberto Azevedo, as a possible Latin American choice.

Bottom Line
It is still way too early to tell what will happen in this competition for the WTO’s top job. But it is clear that the game is afoot.

Africa Notes: Charles Taylor, Guilty!

The Special Court of Sierra Leone found Charles Taylor Guilty. Here is the summary of the judgment. As it states, he was found guilty of aiding and abetting the commission of 11 crimes, including terrorism, slavery, rape, and the use of child soldiers.

As a number of observers have noted, the guilty verdict falls short of the prosecution’s goals (The Economist). Mr. Taylor was not held directly responsible for any of these crimes. As Kevin Heller reports:

the judges have rejected the prosecution’s allegations that he participated in a JCE to commit the crimes alleged in the indictment or that he had effective control over the RUF soldiers who committed the crimes (i.e, no ordering or command responsibility).  The verdict represents a colossal victory for Taylor, even if it means that he will still receive a substantial sentence. (Opinio Juris)

However, as Heller also notes, Taylor is the second head of state to be found guilty by an international tribunal. (Before being tried at Nuremberg Karl Doenitz was President of Germany for 23 days after Hitler’s suicide. Milosevic could have been the second but he died before a verdict was reached.) (Opinio Juris).

Despite the weaker verdict, some victims apparently felt that some justice had been done here. Said the sister of one victim:

It’s good, this one is good, it’s a signal to other people that they should not completely use their money on war, ammunition, to destroy lives (Reuters)

Besides Opinio Juris, another good place to look for further reporting on this is IntlLawGrrls.

Africa Notes: WTO Roundup

The WTO and Sustainable Development
Lesotho Ambassador Mothae Maruping is the current chair of the WTO’s Committee on Trade and Development. ICTSD has a nice report of their recent meeting and its focus on sustainable development. One thought is how to integrate the WTO’s Aid for Trade program with the goal of developing a green economy. Nevertheless, it is clear that some developing countries may also see the WTO as a shield from any radical green agenda that might try to restrict their ability to trade. The delegate from Benin:

Benin said that the WTO should facilitate the elimination of distorting trade practices related to environment that are “incompatible with sustainable development”. “It is important to avoid creating new trade barriers, imposing new conditions to aid, and deepening the technological gap between developed countries and developing countries

The WTO and Regional Integration within Africa
Peter Draper has a nice discussion of the relevance of WTO rules for regional integration efforts in Africa (ICTSD). He anchors his discussion with consideration of the proposed tripartite preferential trade agreement (T-PTA) between SADC, COMESA, and the EAC (basically uniting southern and eastern Africa). He points to a WTO report which singles some of the issues in maintaining coherence between WTO rules and the rules of these new trade arrangements. His overall conclusion seems to be that the negotiating parties strive to maintain coherence with WTO rules and perhaps even allow the WTO’s help with a “mulilateralizing regionalism” component.

Doha Round
Trying to Move Forward
The BRICS would like to remind us that Doha is not yet dead (MN). Both at their own summit last month and at a G-20 meeting in Mexico, they made this point. The WTO’s Director-General Pascal Lamy continues to try to breathe new life into the round. His most recent innovation is the creation of a 12-person panel of stakeholders which include corporate leaders, former heads of state, and leaders of various international institutions. Former President of Botswana, Festus Mogae is the sole African representative to the panel.

Positive DevelopmentsAgriculture
One of the major sticking points has been agriculture, especially for many African countries. The Doha Round began with a major campaign criticizing European and American farm subsidies and support for undermining agriculture in developing countries. Many of these subsidies continue, but there are some signs of change in Europe, at least. ICTSD reported this week that total EU farm support has dropped a bit and overall trade-distorting support has dropped even further:

Overall trade-distorting support – a category including amber, blue, and de minimis support – reportedly fell to €18.3 billion, a figure that is below the €22 billion cap that would be established under the draft Doha agriculture accord. (ICTSD)

Is Doha Dead?
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Monty Python: Not Dead Yet