International Law

The BBC has been following the talks called by President Bush on climate change, and has reported that Condoleezza Rice has said climate change is a real problem, and world leaders should forge a new global consensus on tackling it.

One might of course be skeptical of Bush’s motives (whether this is purely a political play) and one awaits the probably inevitable focus on voluntary and/or cosmetic cuts or market-based measures. But perhaps this at least shows that some in the US are starting to realize that at least being a part of the negotiation, or perhaps starting a separate set of negotiations in which one frames the debate, may be a more viable way of interacting with areas of burgeoning international law (and increasing domestic pressure), such as climate change. One thing for IL scholars who might not like some of the US or any other major power’s positions but constantly call for more international legal engagement by those same powers, is to be careful what you wish for. Simply having “more” engagement by governments does not mean they will take the positions one hopes for or even use the same forums (as Bush’s sidestepping clearly shows) and in some ways perhaps international regimes (such as the ICC, Kyoto, etc.) were actually “helped” by being largely dismissed by the US. Other regimes in which major countries opt out may also have been helped. While IL scholars or especially advocates for various causes (human rights, environment, indigenous rights, etc.) often call for immediate worldwide adoption of various principles, sometimes having smaller venues helps to develop more organized and internally consistent regimes, some supporting cases, some domestic legislation, etc. to the stage in which major powers are forced to get involved or “miss the boat”.  But of course without such public and worldwide calls, perhaps the regimes would remain permanently marginal. 

In any event, the interplay between “involvement” by major powers in IL and whether this is “good” or “bad” for one’s cause is not as simple as it first appears.

There is a lot of news today with implications for IL, from the US Supreme Court deciding to review whether Guantanamo detainees can use the civilian courts to challenge their confinement (SCOTUSblog has an excellent initial discussion) to the bombs in London and (depending on who planted them, of course) what they might mean for security issues in Europe and the United States.

Almost to ease the mind, and to think about how the world might be interconnected still despite so many problems, it is interesting to note that yesterday UNESCO named additional World Heritage sites during the still-continuing 31st session of the World Heritage Committee.  This is not simply a marketing issue but also one involving a great deal of politics (see, for example, Poland’s successful application to change the name from “Auschwitz Concentration Camp” to “Auschwitz Birkenau” with the subtitle of “German Nazi Concentration and Extermination Camp (1940-1945)”) and it has its own international law mini-regime since UNESCO’s 1972 Convention concerning the Protection of the World Cultural and Natural Heritage entered into force.   It has implications for domestic laws, environmental laws, property rights/usage, etc. and it reminds one of the power of labelling in the legal sphere, especially in the IL sphere where other, more traditional, forms of law are not always as strong. 

It is also interesting to note that for the first time a site was removed from the list — the Arabian Oryx Sanctuary in Oman — due to Oman’s decision to reduce the size of the protected area by 90%.

The complete list of sites (just updated) is here.

To follow up an earlier post on thinking outside the box of possible effects of climate change/environmental issues, it is worth noting this NYTimes op-ed on the possible security risk of global climate change, brought up by the British government at the UN Security Council.  The concern has been raised in the US as well, as the article notes (the full report issued by retired generals and admirals is here (PDF)).  According to London’s Observer and bandied about the internet, the Pentagon commissioned its own report (this site cannot vouch for its authenticity in any way) a number of years ago on the possibly dire security risks of climate change.

As the previous post here noted, it is worth considering what might happen if there are substantial environmental changes, how these could be addressed in IL, and from a risk/etc. perspective, what the impact might be on IL and on clients from such possible consequences as increased migration/immigration out of hard-hit places, increased attempts at legal and extra-legal cross-border actions and reactions for environmental issues, changes/conflicts over the law of the sea, more resource-based conflict, etc., etc.  The scope of any environmental changes aside, as the issue gets more and more high-profile coverage, surely the “law”, either formally or informally, will follow.

 P.S. It looks like, in honor of Earth Day, the ASIL has compiled a small list of resources on international environmental law.  Obviously it seems to be just a start — I am sure the resources available (and the resources needed) will increase over time.

According to the NOAA, though the US temperatures this winter were near average overall (with colder temperatures in certain regions and warmer ones elsewhere, such as here in New York, where winter never really “happened” with the exception of a few days here and there), worldwide the global average temperature for December 2006 – February 2007 was the warmest ever recorded for the December-Feb period.

Of course there are lots of factors, such as El Nino, as the article mentions, and one can slice the cake (any any stat, really) to make it look different.  But putting aside the causes/etc. debate (if one can), and even putting aside potential or actual disasters (again, if one can), duties/moral imperatives/environmental appreciation/free-market v. externalities, etc. and even putting aside rather frightening other risks (if such risks are even possible, it might behoove some caution), if temperatutes keep rising, ”simple” problems like crop growth and cycles (like the maple syrup problem here), losing certain animals to environmental conditions, even tourism issues in places where weather is a factor (from ski resorts to hotter climates that might become too hot for comfort) come into play.  In some ways the debate over the “meta”-narrative of global warming might miss some of the direct impact, which will have often un-touted but real implications, and legal implications from everything to insurance risks to security risks if there are food and water issues, especially in already conflict-ridden areas (doomsday-sounding scenarios aside, “simple” droughts can cause havoc in a number of places, particularly in Africa), international environmental law, etc.  For an even more pedestrian approach, just think of declining winter coat sales – a real impact to certain retailers.  A Scotsman article also notes the impact (positive and negative) of rising temperatures and of wildly varying temperatures on all sorts of businesses and products, from Guinness to garden-store products.  The commentary to the article is a mixed bag of those arguing there is/is not/someone-else-is-to-blame-for global warming, and it is true that from a commercial perspective, temperatures might not be the key factor.  But from a simple risk perspective, one might be wise to take a look at one’s field and consider if rising temperatutes might have an impact one way or another, perhaps in ways one might not initially think of. 

The Erika case regarding the 1999 oil disaster in Brittany started today in France and promises to provide a lot of insight not only into French and EU law, but also into the modern IL views on the environment and the oil industry.  Here is a preview, along with the Le Monde description of the day. 

This case brings up obvious parallels with the Exxon Valdez disaster of 1989 and the subsequent litigation.  On a personal level, having recently living in Alaska, parts of Alaska are still recovering from the spill and a lot of oil was “left” as clean-up efforts began to cause more damage and interference than good.  Going to the Prince William Sound area and seeing the wildlife is a life-altering experience and there are many good people on all sides, from fishers to oil workers to environmental activists and tourists.  But it is still horrific to imagine the losses and many think it will never get back to how it used to be.

Of course there was also Exxon’s settlement with the State of Alaska, which remains controversial.  And in places like the Alaska Sea Life Center (funded largely by the Valdez payout), one gets an almost impressionistic view of the tension between the interests of Exxon and others as the exhibit does discuss the spill, but only in a mostly tangential way, before going on to more pictures of cute sea otters.  But people in Alaska remember the disaster vividly, and the Pratt Museum in Homer has a particularly moving and disturbing exhibit, complete with contemporaneous news and radio-wave coverage.

Alaska is such an incredible place, and we have to be careful as such places are fewer and fewer every day.  When I read of the “préjudice écologique” being argued in France, while I cannot understand the depths the feeling of harm are for those attached to the region and the sea — one can hardly think of a stronger connection than the fisherman to the sea– even a glimpse of it in Alaska shows there is a lot more than just economic damage or even “just” limited losses of animal and human life in these disasters.  The identity of many places rests with the sea, and disasters like these alter that identity forever.

On the private litigation side, the 9th Circuit, in Baker v. Exxon Mobile Corp., recently reduced the damages in private litigation (mostly by seafood processors but also tour groups, etc.) surrounding the spill, relying primarily on Cooper Indus. v. Leatherman Tool, 121 S.Ct. 1683 (2001), but remanding for the D. Court to put in $2.5 billion of damages.  This raises a whole host of issues about the role of punitive damages — great fodder for law and economics debates on who should bear the cost of such an accident.
Of course oil and energy are important and there is a balance somewhere, but one should remember the costs as well – not only in terms of major disasters but also everyday costs that are by and large absorbed by the public (and Alaska is a good canary in the coal mine for rising temperatures, with melting glaciers, dwindling animal populations, etc.) and especially by those who live off the see, as acknowledged at least somewhat in Baken v. Exxon.  Should the public absorb that cost?  How much of it, and at what price?

I am curious to see the defense strategy for allocation of blame in the Erika trial and if the parties go after each other.  Maybe that is France’s hope and concern at the same time.  There are plenty of potentially responsible parties, from Total to the boat owner to the captain (who is apparently not at the trial) and crew to the rescue/recovery crews. 

Some of the initial arguments by Total, that there is an abuse of law and essentially an attempt to get legislation from the bench, smell of classic US-arguments against “judicial activism”, which, borrowed from the US, is increasingly (and in my view unfortunately), being argued around the world.  I wonder if there was a big outcry against “judicial activism” when the 9th Circuit proclaimed its own determination of damages in Baker v. Exxon (of course that was in the private context, but still…). 

This trial, though in a domestic jurisdiction, also brings up a great swell of international issues — international parties, the international oil industry, domestic companies within that system, etc.  It is really at the often blurry divide between international and domestic law, especially if (as I suspect) in civil law France they will look around to see what people/scholars/etc. think, including IL/environmental scholars.  This should be interesting for anyone even remotely interested in environmental law, no matter the outcome.

With the recent finding in Britain of turkeys infected with the bird flu, Russia and Japan have put in place bans on British poultry.

This raises an interesting issue at the intersection of international health law and international trade.  When do countries violate international trade regimes by banning products from other countries?  Should it matter if there are potential trade violations, if there is even the slightest risk of the spreading of disease?  If trade wins out, especially through powerful international trade regimes, who is protecting the health concerns of the people?  It is interesting to note that this also comes up in a more general way because Russia declared US beef to unhealthy, and is now apparently loosening its stance somewhat. 

The US saw it as trade protectionism, but some have argued that there actually are reasons to be concerned.  A similar situation came up with US poultry in Russia.

A fascinating case is Europe’s attempts to ban genetically modified foods, which the WTO struck down.  Is this a case of international trade elites overruling domestic political concerns, or is the WTO right that there was insufficient scientific evidence to show the dangers of genetically modified food?

Food production and distribution is increasingly international and this raises all kinds of concerns not usually at the forefront of international law thinking, but potentially of vital importance.  Another interesting side point is just how long international cooperation has been going with respect to international animal health concerns.  According to the World Organisation for Animal Health (OIE) website, it predates the United Nations. 

The interaction of experts in international trade and international health, coming to decisions that often supersede those of domestic groups, seems fascinating and complicated.  “Private” and corporate regulation, which is supported by an international legal regime with an enforcement mechanism, has more force than the WHO, which lacks any implementation system.  Is there an imbalance, or are domestic counterweights sufficient?  I am no expert in the international trade of food products, and any comments/etc. would be welcome.