On March 21

On this day in ...
... 2011 (today), is celebrated the 11th annual World Poetry Day, the date having been set aside in November 1999 by UNESCO, the United Nations Educational, Scientific, and Cultural Organization. The day is set aside to mark "the important role of poetry in the arts and in cultures throughout the world and over time," "to promote the efforts of small publishers with regard to publishing poetry," and to foster "a return to the oral tradition of poetry recitals, as well as strengthening the association between poetry and other forms of expression, such as dance, music, and painting." It's a good day to read aloud a work by Eavan Boland, the Dublin-born daughter of a diplomat. (credit for above right photo of Boland; credit for below left photo (c) Graham Horn) A day to ponder, perhaps, the feminist message in Boland's The Dolls Museum in Dublin. Or to hear human rights questions of memory and forgetting evoked in her poem That the Science of Cartography is Limited, whose words include these:

Look down you said: this was once a famine road.
I looked down at ivy and the scutch grass
rough-cast stone had
disappeared into as you told me

(Prior March 21 posts are here, here, and here, and here.)

Chamber advises caution in seabed mining

(Thank you, IntLawGrrls, for the opportunity to contribute this guest post)

A new Advisory Opinion on Responsibility and Liability for International Seabed Mining from the Seabed Disputes Chamber of the Hamburg-based International Tribunal for the Law of the Sea advises countries interested in sponsoring commercial mining in international waters that they can limit their liability for accidents, but that they will have to consider the precautionary approach, global commons interests, and the evolution of international law in light of new scientific information.
Small island states interested in sponsorship requested this advisory opinion before they undertook to sponsor mining companies based in Canada and Australia.
This February decision was the first to be issued by the Seabed Disputes Chamber, which was established by the UN Convention on the Law of the Sea. The opinion clarifies a number of issues specific to a state’s obligations and liability for harm that might result when it sponsors commercial deep seabed mining in a zone of international waters designated “the Area.” It also offers much of more general interest, particularly in its application of the ILC Draft Articles on state responsibility.

The Chamber’s thoughtful decision should encourage states to have confidence in the Tribunal and its Chamber.

The increasing value of metals that are found on the deep seabed has given rise to greater commercial interest in mining in international waters, more than 200 miles offshore and at as much as 6,000 meters (18,000 feet) below the sea surface. (credit for above right photo of seabed diamond-mining vessel) Access to these resources is implemented through a regime managed by the Jamaica-based International Seabed Authority, which, the Chamber observed, “acts on behalf of mankind.” Under this system, a government can sponsor a company to explore and mine some international waters. The United States, not having ratified the law of the sea convention, is not part of the regime.
If a state adopts appropriate measures, Article 139 of the convention exempts that state from liability for catastrophic harm to the ocean or seabed caused by a company that it sponsors. However, the Chamber advised that to obtain this protection the sponsoring state must satisfy its “due diligence” obligation to make best possible efforts to secure compliance by the sponsored contractors. What is required of due diligence varies according to the state of scientific and technological knowledge and the risks of the activity. It includes the adoption of laws, regulations, and administrative measures in the state’s domestic legal system that are both:
► As stringent as those established by the International Seabed Authority; and
► As effective as international standards.
States must apply a precautionary approach as an integral part of their due diligence obligations

in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks.

Disregarding such risks would constitute a failure of due diligence. The Chamber observed that a growing number of treaties have “initiated a trend” to make the precautionary approach part of customary international law. (This advisory opinion adds one more example of opinio juris to that development.)

In addition, the mining regulations governing prospecting and exploration for polymetallic nodules and sulphides explicitly require states and the International Seabed Authority to apply Rio Declaration Principle 15. That formulation requires that

where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

In a variation on the principle of “common but differentiated responsibilities,” Nauru, a small Pacific island state, had proposed that UNCLOS provisions intended to encourage developing state participation require it to observe a lesser standard of obligation than required of developed countries. Nauru argued that it could not risk the potential cost of a disaster, and so would be unable to gain the benefits from deep seabed mining promised to developing states in the convention. In this Advisory Opinion, the Seabed Disputes Chamber stated that sponsoring state obligations apply to both developed and developing countries, although “rules setting out” direct obligations could differentiate. The Chamber also noted that Rio Principle 15 may suggest a different standard, as that principle includes the proviso that the precautionary approach is to be applied according to the capabilities of the state.
While obligations and liability rules are established by the convention and related instruments, the consequences are governed by customary international law. Citing the ILC’s codification of customary law, its Articles on State Responsibility, Article 48, the Chamber indicated that obligations to preserve the environment of the high seas and in the Area may be erga omnes; that is, owed to the international community as a whole or “to a group of States [if the obligation] is established for the protection of a collective interest of the group.” The Seabed Authority might be able to claim compensation on behalf of the international community, along with parties to UNCLOS, “entities engaged in deep seabed mining, other users of the sea, and coastal States.” Though the Chamber does not mention it, other forms of enforcement may also be open to the international community.
Some failures of state oversight that contributed to the Deepwater Horizon disaster in the Gulf of Mexico (prior IntLawGrrls posts available here) are addressed by the Chamber. They include:
► The obligation of Environmental Impact Assessment;
► Raising of the performance standard from “best technology” to “best environmental practices”; and, in the aftermath,
► Ensuring access to compensation.
Referring to the 2010 judgment of the International Court of Justice in Pulp Mills (discussed here), the Chamber stated that Environmental Impact Assessment is both

a direct obligation under the Convention and a general obligation under under customary international law.

The rejection of the argument that states that sponsor mining operations bear residual liability for any damages not compensated by the mining company leaves an important gap in liability.
Other international liability regimes are structured in a similar way, which made sense in an “empty world”. In today’s “full world”, if the cost of environmental damage is not paid by those who expected to profit from the harmful activities, it will be paid by the international community.
The Chamber suggested that a possible solution could be the establishment of a trust fund.
Such funds have at times been successful, as in the case of the International Oil Pollution Compensation Funds. But the slow progress on climate change funds is an example of the problems.
The Chamber’s invocation of Article 304 of the law of the sea convention, which refers to the development of further rules governing responsibility and liability for damage, and its linkage of rising environmental standards to increased scientific knowledge leave the door open to a more protective stance in future contentious cases and provides important guidance to the International Seabed Authority.
The Chamber provided a degree of access to nonstate participants.
Under the rules applicable to the Chamber’s advisory jurisdiction, “intergovernmental organizations which are likely to be able to furnish information on the question” may be invited to participate.
On that basis, the Chamber invited all observers to the International Seabed Authority Assembly to submit written and oral statements. The participation of the International Union for Conservation of Nature, on behalf of which I appeared in these proceedings, along with members of the UN family: UNESCO’s Intergovernmental Oceanographic Commission and the UN Environmental Programme, occurred on this basis.
Two nongovernmental organizations, Greenpeace International and the World Wildlife Fund, jointly submitted a statement and a request to participate in the proceedings as amici curiae. The Chamber considered the request and decided to post the statement on its website, but as the Rules of the Tribunal do not provide for amicus participation, did not include their statement in the case file. The NGOs were not allowed to participate in the oral proceedings.
The Advisory Opinion, written statements, verbatim record of oral statements, and webcast of oral statements are all available here.

On January 4

On this day in ...
... 2011 (today), in Colombia, revelers will take part in a parade, el Desfile de la Familia Castañeda, part of the almost weeklong Carnaval de Negros y Blancos, the year's most important festival in the southern part of the country. Colorful floats, costumes, and customs mark the event, which was designated a part of the national heritage in 2001. (photo credit) In 2009, this Carnaval earned a place on UNESCO's Representative List of the Intangible Cultural Heritage of Humanity.

(Prior January 4 posts are here, here, and here.)

On December 5

On this day in ...
... 1985 (25 years ago today), Britain confirmed that it was withdrawing from UNESCO, the U.N. Education, Scientific, and Cultural Organization, founded in 1946, of which Britain was a charter state. The decision took effect at year's end. British charges that the organization was "'politicized'" and "anti-Western" echoed complaints that had led the United States to quit in 1984. On July 1, 1997, Britain rejoined UNESCO; the United States followed suit a few years later. Today the Paris-based organization has 193 member states.

(Prior December 5 posts are here, here, and here.)

On December 3

On this day in...
... 1985 (25 years ago today), Le Vieux Québec was declared a UNESCO World Heritage Site at the 9th session of the World Heritage Committee in Paris, France. According to this website,

Old Quebec is the only North American city with its old ramparts, bastions, gates and defensive walls still intact. The city was founded by French explorer Champlain in the early 17th century. By 1750, it has become the largest town in the then French colony of Nouvelle-France ("New France"). Today it is one of the best preserved fortified colonial cities in Canada.

This old part of the city (above) was the 1st place in North America to win UNESCO recognition.

(Prior December 3 posts are here, here, and here.)

On July 12

On this day in ...
... 1952, Irina Bokova (right) was born in Sofia, Bulgaria. She held a number of elected and diplomatic many positions in her home country, including Deputy Minister of Foreign Affairs, Ambassador to France and Monaco, and Permanent Delegate to UNESCO. Then, on October 15, 2009, she was elected Director-General of UNESCO, the 1st woman, 1st Eastern European, and 10th person to hold that position.

(Prior July 12 posts are here, here, and here.)

On May 16

On this day in ...
... 1882 (or, perhaps, 1880), a daughter, Elizabeth Anne, was born in England to American parents. Educated in Ohio, she married an engineer/importer, whom she accompanied on many overseas trips. Eventually she "timidly" asked a New York Times editor whether she might send dispatches during a 1921 trip; her consequent reports got Anne O'Hare McCormick a job:

She ... impressed him, particularly with her judgment of Mussolini, when she wrote: 'Italy is hearing the master's voice.' Other correspondents were then giving him the brush-off as a posturing lout. She was hired.

(A 1921 dispatch on Italy by her is here.) Thus was launched a journalism career in which O'Hare McCormick (above right) (credit) wrote about leading world events and became, in 1936, the 1st woman on The Times' editorial board. She was a Chevalier of the French Legion of Honor, and a U.S. delegate to the 1946 and 1948 UNESCO conferences. O'Hare McCormick died in New York in 1954, at age 72.

(Prior May 16 posts are here, here, and here)

On November 16

On this day in ...
... 1989 (20 years ago today), at the 25th session of its General Conference, UNESCO adopted the Seville Statement on Violence. (credit for image from 2003 UNESCO conference discussing Statement)Produced by a global consortium of scientists meeting in 1986 in Spain, the Statement refuted "a number of alleged biological findings that have been used, even by some in our disciplines, to justify violence and war." After declaration 5 such so-called findings "scientifically incorrect," the Statement concluded "that biology does not condemn humanity to war, and that humanity can be freed from the bondage of biological pessimism," and ended with these words:

Just as 'wars begin in the minds of men', peace also begins in our minds. The same species who invented war is capable of inventing peace. The responsibility lies with each of us.

(Prior November 16 posts are here and here.)

Feeling Germany's pain

'Every time we fail to preserve a site, we share the pain of the state party.'

So said Dr. María Jesús San Segundo (left), Spain's Ambassador to the U.N. Educational, Scientific and Cultural Organization (and an economics professor at Madrid's Universidad Carlos III), respecting UNESCO's decision to remove Dresden from its list of World Heritage Sites.
¿Por qué?
Because the city has decided to go ahead with building the Waldschlösschenbrücke, a 4-lane bridge that opponents maintain "would be a blot on the unique Elbe valley and is sited in a particularly sensitive spot, near the old city, from where it could be seen." The decision makes the state party in question -- Germany -- the 1st country in Europe and only the 2d in the world to be removed from the list.

On June 8

On this day in ...

... 1949 (60 years ago today), George Orwell's novel 1984 was published in England; it appeared in the United States 5 days later. A recent article in London's Guardian provided the backstory and legacy of this antitotalitarian masterwork, to which we owe concepts like "Orwellian" and "Big Brother." 1984 began with appropriate portent:

It was a bright cold day in April, and the clocks were striking thirteen.

... 1998, Maria Reiche died of ovarian cancer in Lima, Peru. Born in Dresden, Germany, in 1903, Reiche (top right) (credit) 1st came to that South American country in 1932 to work as a governess for a German diplomat. Eventually she began to collaborate with a U.S. archeologist, researching a series of geoglyphs (bottom right) (credit) that had been scratched into desert and pampas soil sometime between 500 B.C. and 500 A.D. In The Mystery on the Desert (1949), Reiche set forth her astronomy-related theories on why the geoglyphs had been made. In 1994 these Lines and Geoglyphs of Nasca and Pampas de Jumana were inscribed as a UNESCO World Heritage Site.

(Prior June 8 posts are here and here.)

Trade & Culture: Paths to (Re)conciliation

My warm thanks to IntLawGrrls for inviting me to contribute a guest post. It is a splendid initiative to report on relevant international law topics from a female perspective (and I do love the pink background).
Having the IntLawGrrls’ floor, I would like to share some ideas stemming from my current research, which focuses on the relationship between trade and cultural norms at the international level, taking into particular account the impact of digital media. As a sort of a broader research agenda on the theme, I published an article in the Journal of International Economic Law. But lately, I have also been trying, in my paper entitled "Trade and Culture: Keep the Border Fuzzy, Please," to go a step further and discuss the fuzzy borders between trade and culture, and whether and how we could manage them in the contemporary media environment.
The pair “trade and culture” can be singled out and deservedly labelled as unique in the “trade and …” discourse. The reasons for this exceptional quality lie in three points:
► The first is the intensity of the relationship, which is indeed most often framed as “trade versus culture,” and has been a significant stumbling block, especially as regards audiovisual services during the Uruguay Round of negotiations of the World Trade Organization (logo above left) and subsequently.
► The second specificity of the relationship is that the international community has organised its efforts in a rather effective manner to offset the lack of satisfying solutions within the WTO framework. The 2001 Universal Declaration on Cultural Diversity, adopted under the auspices of UNESCO, the United Nations Educational, Scientific and Cultural Organization (logo below right), and the legally binding UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, came into force two years ago this month, are clear signs of the potency of the international endeavour, on the one hand, and of the (almost desperate) desire to contest the existing WTO norms in the field of trade and culture, on the other.
►A third distinctive characteristic of the relationship between trade and culture -- one that is rarely mentioned and blissfully ignored in any Geneva or Paris talks -- is that while the pro-trade and pro-culture opponents have been digging deeper into their respective trenches, the environment in which trade and cultural issues are to be regulated has radically changed. The emergence and wide spread of digital technologies have modified profoundly the conditions for cultural content creation, distribution and access, and have rendered some of the associated market failures obsolete, thus mitigating to a substantial degree the “clashing” nature of trade and culture. Under the conditions of the digital media space, any trade restriction may in fact be counterproductive to a thriving cultural environment, and the focus on “trade versus culture,” especially in the classical context of audiovisual services, may be too narrow and thus fail to recognise the augmented significance of other regulatory domains (such as intellectual property).
In this sense, there is a pressing need to re-evaluate the existing tools of media regulation, including those targeted at the protection and promotion of cultural diversity. Such regulatory experiments would certainly unfold first at the domestic level; however, paradoxical as it may sound, it could be that the WTO offers better solutions than UNESCO when these matters are to be taken up at the international level.

On February 21

On this day in ...
... 2009 (today), by declaration of UNESCO, the United Nations marks the 10th annual International Mother Language Day to "promote linguistic and cultural diversity and multilingualism." The chosen date coincides with the day in 1952 when, in Dhaka, in what was then Pakistan but now is Bangladesh, police opened fire on university students who were demonstrating for the right to speak their native Bengali language. That event is commemorated in this pamphlet from Bangladesh's Dutch embassy. (credit for 2009 poster)
... 1971, in conclusion of a 6-week, 71-country U.N. conference in Vienna, Austria, diplomats adopted the Convention on Psychotropic Substances, a treaty aimed at a global law enforcement response to drug trafficking. The convention would enter into force on August 16, 1976. Monitored by the International Narcotics Control Board, it now has 175 states parties.

(Prior February 21 posts are here and here.)

On January 18

On this day in ...
... 1930, Maria de Lourdes Pintasilgo (left), a "pioneer feminist," was born in Abrantes, in Portugal's Tagus Valley. Having "she opted for a 'man's subject' so as to demonstrate the abilities of women," in 1953 she earned an engineering degree in industrial chemistry. She was active in Catholic women's political groups beginning in her university days, and served as the 1st woman on an advisory group to the country's long-in-power dictatorship. But after that dictatorship ended in 1974, Pintasilgo served in the new government, 1st as Minister for Social Affairs, then as UNESCO minister, and, in 1979, as the 1st woman Prime Minister of Portugal -- and the 2d woman to hold such a post anywhere in Europe. Her later bid for the presidency having failed, she served as a Member of the European Parliament for 2 years in the late 1980s. Pintasilgo, who died in Lisbon in 2004, once said of her male colleagues:

'You know, they never forgive me for having dared to enter their world.'

... 1689 (320 years ago today), Charles-Louis de Secondat, Baron de Montesquieu, known through history simply as "Montesquieu," was born at his family's chateau near Bordeaux, France. Following education and marriage he launched a career as "one of the great political philosophers of the Enlightenment." An enduring work is his 1751 treatise De L'Esprit des Lois (Spirit of the Laws) (right). In it Montesquieu articulated a theory of separation of powers that -- in an early instance of comparative constitutionalism -- inspired the framers of the U.S. Constitution and bedevils commentators on the powers of the U.S. President in this new millennium.

On October 1

On this day in ...
... 1978 (30 years ago today), a Pacific Ocean island group located about halfway between Hawaii and Australia, which the British had called Ellice Islands, became independent and took the name Tuvalu. Today the 26-square-mile country has a population of approximately 10,000.
... 1975, the 1st annual International Music Day was celebrated. UNESCO proclaimed the day in order to "promot[e] our musical art among all sections of society," and thus to further "ideals of peace and friendship between peoples, of the evolution of their cultures, of the exchange of experience and of the mutual appreciation of their aesthetic values." One way to mark the day: consider the past and future of the world's women composers.

On September 9

On this day in ...
... 1920, in Finland, the Lotta Svärd organization was formally established as a women's voluntary auxiliary paramilitary group. Named after the heroine of a Finnish poem, who continues to fight after her husband dies in battle, the organization continued a tradition begun during the Finnish Civil War and World War I, in which women helped in combat. In World War II the "Lottas," as they were known, helped at hospitals, at air-raid posts (as depicted at right), and elsewhere. "By 1944 it included 242 000 volunteers, the largest voluntary auxiliary organisation in the world, while the total population of Finland was less than four million." (photo credit)
... 1888 (120 years ago today), Chile annexed Easter Island, located 3,700 kilometers west of the mainland. Though several thousand of the indigenous Rapa Nui people once had occupied the island, by then fewer than 200 remained, "since all the rest had been taken to the guano deposits in Peru." The aftermath of annexation and its effects on the remaining indigenous inhabitants, is described here. The island is renowned for giant moai statutes like that at left, today a UNESCO World Heritage site. (credit for 1916 photo)

On August 23

On this day in ...
... 1998 (10 years ago today), Haiti became 1 of the world's 1st countries to commemorate what is now known, by UNESCO resolution, the International Day for the Remembrance of the Slave Trade and its Abolition. According to that U.N. body, commemoration "is intended to inscribe the tragedy of the transatlantic slave trade in the memory of all peoples." This date was chosen in recognition of a 1791 slave insurrection on the island of Saint-Domingue -- today, Haiti.
... 1944, Antonia Coello was born in Fajardo, Puerto Rico. Her own illness and her father's early death made hers a difficult childhood. Nonetheless, she earned a medical degree in 1970, married, and, as Dr. Antonia C. Novello (left), made a career in public health that culminated with her appointment in 1990 as U.S. Surgeon-General. She was the 1st woman and 1st Hispanic in that post; after she left it in 1993, Novello worked several years at UNICEF.

On April 29

On this day in ...
... 1951, at a meeting in Beijing, China presented a 5-member delegation of the Tibetan government with a draft agreement. According to the Tibetan Government in Exile, the delegation "rejected the Chinese proposal in toto," and in any event did not have power to enter a pact with China; nonetheless, after undergoing "harsh and insulting terms" and being both "threatened with physical violence" and isolated from its Government, on May 23 the delegation signed the "Agreement on Measures for the Peaceful Liberation of Tibet" to avoid "an immediate military advance on Lhasa," Tibet's capital. China's official news service, Xinhua, has an extremely different view of events. As we've posted, China's half-century presence in -- and the Dalai Lama's exile from -- Tibet sparked riots there last month. This month, there've been disturbances nearly everywhere the Olympic torch has been displayed.
.... 2008 (today), is celebrated the 6th annual International Dance Day. At this year's celebration at UNESCO headquarters in Paris will feature performances by South African and French dancers as well as delivery of the annual "Message" by dancer and choreographer Gladys Faith Agulhas, shown at right with Makhotso Sompane (photo credit) of Agulhas Theatre Works, Johannesburg. The date was set aside in order, as UNESCO put it,

to bring all dance together on this day, to celebrate this art form and revel in its universality, to cross all political, cultural and ethnic barriers and bring people together in peace and friendship with a common language : Dance.

Go On! Common Grounds, Common Waters: Toward a Water Ethic

(Go On! is an occasional item on symposia of interest.) This Friday (March 14th), my institution (Santa Clara University School of Law) will be hosting a symposium on the Ethics of Water. According to the conference organizers:

The purpose of the symposium is to seek common ground in identifying a water ethic that are fundamental to [the multiple competing] interests and that might lay the foundation for compromise, cooperation, and sound management of fresh water resources. Fundamental to this goal is the ideal that common water ethics should be at the base of all agreements, legislation, and management efforts related to fresh water resources.

The conference will feature panels such as "Ethics and Commodification" and "Water in a Globalized World" and speakers from UNESCO, the U.S. Department of the Interior, and Coca-Cola as well as leading environmental law scholars. The conference will conclude with a roundtable focusing on the question of whether

a consensus can be achieved on a core set of water ethics that society should pursue. They will also be tasked with negotiating disparate or conflicting ethical bases that may arise, as well as developing the processes and mechanisms for implementing the agreed-upon water ethics.

Details and registration materials may be found here.

On November 2, ..

... 2007 (today), is marked the end of the holidays known among persons of Mexican heritage as Día de los Muertos, or Day of the Dead, yet celebrated under other names in numerous other cultures. As with Halloween and its ancestor, Samhain, this festival recalls those who are dead; in this case, a cause for celebrations, at cemeteries and at in-home altars inhabited by La Catrina, the Lady of the Dead (left), and other skeleton figures. Tastiest treat: the sugar skull. (photo credit of sculpture by Carlos Soteno, Mexico (2004))
... 2001, the Convention on the Protection of the Underwater Cultural Heritage was adopted at a meeting in Paris of the General Conference of the United Nations Educational, Scientific and Cultural Organization. It's designed to strengthen protection of, as stated in Art. 1,

all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years,

including buildings, prehistoric objects, and sunken subs like that at right. The UNESCO treaty will not enter into force until 5 more countries join the 15 states parties so far: Bulgaria, Croatia, Ecuador, Lebanon, Libya, Lithuania, Mexico, Nigeria, Panama, Paraguay, Portugal, Romania, St. Lucia, Spain, and Ukraine.

Cartographic Quiz Answered

Answer to Cartographic Quiz above:

Hué, situated in Thua Thien province at the midpoint of Vietnam. The Hué, or Perfume, River bisects the city, which is home to numerous UNESCO World Heritage sites, among them the Hué Monuments pictured at right.