Responsibility to protect, Libya to Japan

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

On September 16, 2005, the General Assembly of the United Nations adopted by consensus a resolution recognizing the responsibility to protect. The core of the responsibility to protect (R2P) as adopted by the both the General Assembly and Security Council was first embodied in Paragraph 138 of the 2005 World Summit Outcome declaration:

'Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it.'

Paragraph 139 continues:

'The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.'

The original, and broader, formulation of the responsibility to protect was included in the December 2001 report, The Responsibility to Protect, from the International Commission on Intervention and State Sovereignty (ICISS). As a basic principle, this report concludes that

'where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.'

For military intervention to be justified for human protection purposes, there must be:

'serious and irreparable harm occurring to human beings, or imminently likely to occur, of the following kind:
'A. Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or
'B. Large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.'

In dealing with what should occur if the Security Council fails to fulfill its responsibility or to do so “in a reasonable time,” “alternative options” are:
► Consideration of the matter by the General Assembly in Emergency Special Session under the “Uniting for Peace” procedure; and
► Action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.
The ICISS report cautions:

'The Security Council should take into account in all its deliberations that, if it fails to discharge its responsibility to protect in conscience-shocking situations crying out for action, concerned states may not rule out other means to meet the gravity and urgency of that situation –and that the stature and credibility of the United Nations may suffer thereby.'

Speaking from the perspective of September, 2001, the Commission concludes that it is impossible to find a legal consensus regarding humanitarian intervention without UN authorization but does not rule out the possibility of such intervention. It is for this reason that the Commission remarks that when a state or states intervene because the UN has failed to do so, and the states or state do so successfully, there may be “enduringly serious consequences for the stature and credibility of the UN itself.”
This R2P framework illuminates current events in Libya and Japan.

Libya
There are four basic sanctions against Libya in Security Council Resolution 1973 (prior IntLawGrrls post); specifically, the:
► Assets freeze;
► No-fly zone;
► Arms embargo; and
► Protection of civilians.
The assets freeze is left to individual states and does not involve force, so can be set aside for purposes of this discussion. (credit for March 2011 Goran Tomasevic/Reuters photo of airstrike in Libya)
The resolution authorizes states to “take all necessary means” to protect civilians. On March 24, 2011, NATO announced that it would be assuming responsibility for the arms embargo and the no-fly zone, and a few days later for protection of civilians as well.
Resort to the responsibility to protect, although cited by some commentators in reference to the resolution, is unnecessary to the legal authority of the resolution. The three-prong authorization of force falls easily within prior precedents predicated on a finding of a threat to peace or breach of peace under Chapter VII and authorization of collectively authorized humanitarian intervention within the term threat to peace.
Indeed, the crimes precedent to triggering the responsibility to protect may or may not have been sufficiently established to give rise to the responsibility. This responsibility is triggered only when a state has “manifestly” failed to protect its population from acts constituting genocide, war crimes, ethnic cleansing, or crimes against humanity.
The resolution refers to Libya’s responsibility to protect the Libyan population, the “widespread and systematic attacks in the Libyan Arab Jamahariya” which “may amount to crimes against humanity,” and the referral to the International Criminal Court of these possible crimes. It does not declare that Libya has committed any of these crimes. More importantly, a state’s failure to protect its own population from these crimes triggers a collective responsibility to protect using peaceful measures. With respect to force, the formulation says only that the international community is “prepared” to use force in such circumstances, not that it has an affirmative responsibility to do so. In short, resort to force remains as discretionary in terms of Security Council authorization as it was when predicated on a threat to peace.

Japan
Earthquakes, tsunamis, and climate disruption have focused international attention on environmental disasters, natural and anthropocentric, and the ability of the global community to respond adequately and immediately. Whatever the magnitude of the humanitarian violations in Libya, they are eclipsed by the sheer magnitude of the earthquake, tsunami, and nuclear disaster in Japan. (credit for NOAA animated model)



UN officials, including Secretary-General Ban Ki-moon, have been quick to deny that the responsibility to protect applies to environmental crises, including specifically climate change and its consequences. Nevertheless, the four specified crimes can encompass situations of abusive governments or non-state actors inflicting environmental damage.
In Iraq, for example, Saddam Hussein's destruction of the natural resources essential to living conditions of the Marsh Arabs could have been considered “deliberately inflicting conditions of life calculated” to bring about the physical destruction of the group in whole or in part.
The ICISS formulation calls for intervention even by force whenever there is large-scale loss of life, coupled with a state’s unwillingness or inability to act.
The reality of a deteriorating planet and multiple environmental disasters, which even the most well-prepared and well-intentioned state may find itself unable to address, highlights the shortsightedness in the UN position that the responsibility to protect should not be formulated to address environmental disasters.
Is there a humanitarian disaster which calls for global responsibility to respond and protect, with or without a state’s consent, more than a convergence of environmental disasters?
There is a pressing need for reconsideration of the responsibility in an environmental context, before the next disaster occurs in a state that is unable, and unwilling, to act.

Guest Blogger: Elizabeth Burleson

It's IntLawGrrls' great pleasure to welcome Elizabeth Burleson (left) as today's guest blogger.
An expert on emerging issues related to international environmental and human rights law, is currently a visiting professor at the University of Oregon School of Law. She will join the law faculty at Pace University, White Plains, New York, later this year, and also has taught law at Florida State University, the University of South Dakota, and the University of Connecticut. Additionally, as a Fulbright Senior Specialist, she taught International Trade and the Environment in Montevideo, Uruguay.
Elizabeth earned her J.D. from the University of Connecticut, and also holds an LL.M degree in International Law from the London School of Economics.
Her professional service includes advising UNICEF's Senior Advisor for the Environment as well as the New York Director of the U.N. Environment Programme; and helping intergovernmental and nongovernmental organizations in planning events at a variety of international conferences, including Cancun, Copenhagen and Bali climate conferences.
She's published on these issues as well. Her recent ASIL Insight, coauthored with our colleague Cesare Romano, law professor at Loyola-Los Angeles, is here. In her guest post below, Elizabeth discusses prospects for international cooperation on the issue of climate change.
Elizabeth has taken part in the negotiation of treaties since the 1991 sessions of the U.N. Conference on the Environment and Development. Among the legal instruments she's had a hand in drafting are the U.N. Framework Convention on Climate Change, Agenda 21, and the Rio Declaration on Environment and Development, all developed under U.N. auspices in 1992.
Those experiences inspired Elizabeth to dedicate her post to Bella Abzug (1920-1998), the attorney and cofounder of the National Women's Political Caucus. A New York Democrat, Abzug (below right) served in the U.S. House of Representatives for most of the 1970s. Abzug also worked at the international level, cofounding the Women's Environment and Development Organization, taking part in conferences like that at Rio and pushing states to live up to commitments they made at those gatherings. Elizabeth writes:

Working with Bella Abzug and the Woman's Caucus in the pre-Rio climate negotiations was instrumental in my learning the breadth of international diplomacy. Bella's larger-than-life charisma and intellect provided a great model upon which to build friendships across civil society and the United Nations.

Today Abzug joins other IntLawGrrls foremothers in the list just below our "visiting from..." map at right.
Heartfelt welcome!

Climate consensus-building

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Sustained cooperation on climate change is within political reach, this I believe.
International treaties are seldom accomplished inside a day. At its core, the Cancun Agreements adopted during the recent 2-week conference in that Mexican city (prior IntLawGrrls post) set forth these objectives:
► Greenhouse gas mitigation by all countries;
► An Adaptation Framework;
► A Technology Transfer Mechanism to facilitate environmentally sound technology- and capacity-building;
► A new U.N. Green Climate Fund;
► Measurable, reportable, and verifiable inspections for the United States, China, and other major emitting countries;
► Scientific review after five years; and
► Forestry consensus to fund countries to avert deforestation.
There could not have been a greater contrast between Cancun and Copenhagen, the 2009 conference on which IntLawGrrls posted here, here, here, here, here, here, here, and here.
In the frozen northern city creativity abounded -- gaining the spotlight. Civil society spelled out "350" holding blazing torches in the snow.
In the southern city, demonstrations were displaced by armed forces, keeping the most recent U.N. climate change conference – known by its acronym COP 16 – a high-end diplomatic affair. Surreal resorts along Cancun's Maya Riviera hosted subdued forums patching back together trust in multilateral climate cooperation. Countries are "now walking in the right direction, but they need to start running," Tim Gore of Oxfam International noted.
U.N. Secretary General Ban Ki-moon called upon the international community to "think big, connecting the dots between poverty, energy, food, water, environmental pressure and climate change."
The floods in Pakistan and fires in Russia are the latest bells tolling an alarming wake-up call. It brings to mind these famous words, written by the poet John Donne in 1624:

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bell tolls; it tolls for thee.

The spoken and unspoken calls of children, women, and men – of terrestrial and marine life are coalescing. Time will not gain patience – we must channel the urgency into collective action to address climate change. "You have been negotiating all my life. You cannot tell us that you need more time," Christina Ora of the Solomon Islands, challenged a collection of 193 countries. (credit for photo of Ora speaking during COP 15)
I have participated in these negotiations since 1991, helping to draft the U.N. Framework Convention on Climate Change to stabilize atmospheric concentrations of greenhouse gases. The goal is still elusive, but this 1992 Convention has 194 parties, who meet annually.
All eyes are on Durban, South Africa, where COP 17 will be held from November 28 to December 9, 2011. (image credit) There we may yet weave together international consensus for a post-2012 framework to mitigate, adapt, innovate, and fund a meaningful transnational climate response.

As Gandhi noted, we must be the change that we wish to see in the world.

Blogging the Scott Expedition

Antarctica (right) is one of the most fascinating places on earth--both in terms of its legal regime and in terms of the place itself. Although it has recently become something of a prestige tourist destination, the harsh climate had until recently kept the human footprint relatively light. Yet, the Antarctic is one of the places where climate change is becoming extremely visible. And, illegal overfishing has decimated the Patagonian Toothfish, popularized as Chilean Sea Bass (left), which is on Greenpeace's Red List.

This year is the 100th anniversary of the doomed Scott expedition. For those of you who may not remember, Robert Falcon Scott led a British expedition (right) to the South Pole. His team reached the pole about one month behind the team of Norwegian explorer Roald Amundsen. None of Scott's team made it back to their base on the Coast (while all of Amundsen's team survived.)
To commemorate the 100th anniversary, my dear friend and former colleague Russ Miller (Washington & Lee School of Law) has created a fascinating blog. Each day, he is blogging based on Scott's journal entry for that day. Check it out!

Imagine if 2010 hadn't been the Year of Biodiversity

"Biodiversity is life. Biodiversity is Our Life" That is the slogan of the United Nations International Year of Biodiversity, which draws to a close in just over a week. When Secretary-General Ban Ki-moon announced the opening of the Year of Biodiversity, he cautioned:

A failure to protect the world's natural resources is a wake-up call for people everywhere.

The U.N. General Assembly certainly ushered the International Year .of Biodiversity out with a bang-- voting on December 21 to establish the Intergovernmental Platform on Biodiversity and Ecosystem Services.
This new Intergovernmental Platform will be modeled on the Intergovernmental Panel on Climate Change, and is intended to be a mechanism for integrating scientific knowledge about biodiversity into policy-making.
The Intergovernmental Platform on Biodiversity and Ecosystem Services was established just in time for the International Year of Forests which begins in January 2011, and the International Decade of Biodiversity, also beginning in January 2011. Let us hope it has more success in galvanizing global action targeted at stemming our losses of biodiversity than the Intergovernmental Panel on Climate Change has had in getting global agreement on actions to stem carbon emissions.
Establishment of the Intergovernmental Platform was a bright spots in a year otherwise riddled with bad news for biodiversity.
Biodiversity loss is rapid and ongoing. Over the last 50 years, humans have changed ecosystems faster and more extensively than in any comparable period of time in human history. We are losing tropical forests, wetlands, coral reefs and grasslands at a rapid clip. Species extinctions are orders of magnitude over expected rates. The causes are clear:
►over-exploitation
►habitat loss
►invasive species
►climate change
Unfortunately, these drivers of biodiversity loss show no signs of abating. As a result, we are losing species at rates three orders of magnitude greater than would otherwise be expected.
The IUCN Red List (prior IntLawGrrls posts here, here, and here) reported that 1/5 of vertebrate species, ranging from 13% of birds to 41% of amphibians, are threatened with extinction. A similar report by the Kew Royal Botanical Gardens suggests that one-fifth of plants are similarly threatened. This is terrifying! As the Millennium Ecosystem Assessment documented, biodiversity is the foundation on which human life depends.

In 2002, the Convention of the Parties to the Convention on Biological Diversity adopted the Strategic Plan for the Convention on Biological Diversity. The Strategic Plan set what's come to be known as the 2010 Biodiversity Target -- a commitment by the 191 parties to the Convention to

achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on Earth.

This biodiversity target was subsequently endorsed by the World Summit on Sustainable Development, the United Nations General Assembly at the 2005 World Summit Meeting, and was incorporated into the Millennium Development Goals. These developments marked an official international recognition that biodiversity loss is closely associated with environmental degradation, poverty and ill-health. This prompted the General Assembly to declare 2010 the International Year of Biodiversity.
Unfortunately, the Convention of the Parties acknowledged earlier this year that it had failed to meet the 2010 Target for halting the losses of biodiversity. The European Union similarly missed its targets. The Global Biodiversity Outlook reports deforestation continues at an alarming rate, coral reefs show major declines, and abundance has plummeted for many species. This is not to say there have been no successes.
At the Cancun meeting earlier this month, delegates were cheered that Brazil announced it had reduced tropical rainforest destruction and CO2 emissions to record low levels, and that some species, mostly charismatic macrofauna, have shown signs of recovery. As the IUCN Red List reminds us, the news is not all grim. For the first time, scientists have documented that conservation can really make a difference in stemming biodiversity loss. There is still hope. But, the time for action is now!

Winning & losing (mostly losing) in Cancun

There is good news and bad news from the UN Climate Change Conference that just ended in Cancun, Mexico.
First the good news.
The conference produced some important steps forward:
► With one lone dissent, by Bolivia, the other 193 participants overwhelmingly endorsed the final agreement, which formalized the status of the Copenhagen Accord. That accord, about which IntLawGrrls posted here and here, thus has been officially integrated into the United Nations process.
► There was an agreement on preserving tropical forests (REDD+) that provides for compensation payments to tropical countries that reduce deforestation.
► There was also an agreement setting up a Green Climate Fund to provide financial assistance to help developing countries restrain their emissions and cope with the impacts of climate change.
These are important steps.
Given last year's failed Copenhagen meeting, expectations were very low for the Cancun meeting. So, the conference’s modest success was encouraging in that it restored faith in the possibilities of the multilateral United Nations process as a forum where climate progress can be made. Mexican Foreign Minister Patricia Espinosa (right) earned wide praise for her transparent and deft handling of the negotiations.
Now for the bad news. . . .
The talks failed to produce any agreement ensuring reduced carbon emissions. Without drastic cuts in carbon emissions, the world will soon run out of time to avert catastrophic climate change.
The scientific evidence is clear — human activities linked to burning fossil fuel are increasing carbon dioxide levels in the atmosphere. The resultant buildup of carbon dioxide is likely to warm the planet by several degrees Centigrade in the next half-century. International efforts have identified keeping that warming below 2 degrees Celsius (about 3.6 degrees Fahrenheit) as the goal.
The effects of global warming are already clearly visible in the Arctic, where drastically reduced summer sea ice threatens the continued existence of ice-dependent animals like Pacific walrus and polar bears, while melting permafrost jeopardizes the safety and livelihoods of Arctic residents. Coral reefs are bleaching and dying at an alarming rate.
Extreme weather events around the world, including floods and droughts are a harbinger of things to come. As the planet warms and the climate changes, we can expect disease, species extinction, water shortages, rising sea levels, and the disappearance of small island states.
In short, climate change is likely to cause conflict and dislocations around the globe.
In the face of this looming catastrophe, we need bold action. What we got is at most a modest step forward.
The Cancun Agreement calls on countries to take “urgent action” to keep global temperatures from increasing more than 2 degrees Centigrade above pre-industrial levels. It does not, however, specify what those actions should be. States have made no binding commitments to do anything. The Agreement does nothing to about the gaping chasm between the current voluntary emissions-reduction commitments that states have set for themselves under the Copenhagen Accord, and the kinds of reductions needed to meet this goal.
Alden Meyer of the Union of Concerned Scientists said it best:

World leaders must significantly raise their game if we're to meet the challenge of climate change. Time is running out, and the atmosphere doesn't negotiate with politicians.

Treaties no treat?

What to make of Jamie Rubin's blithe Farewell to the Age of the Treaty?
In an op-ed yesterday Rubin, a State Department spokesperson back when Madeleine Albright was Secretary of State, posited that treaties aren't "even worth the trouble anymore."
The "trouble," it appears, is not with international agreements themselves. Troublesome, rather, is securing 2/3 consent of the Senate, a constitutional sine qua non for U.S. ratification of a treaty. The requirement's now bedeviling President Barack Obama's bid for ratification, detailed here, of the U.S.-Russia New Start disarmament treaty. (prior posts) (credit for White House photo of April 2010 signing)
"'Fortunately, there is an alternative,'" Rubin breezed. He argued that statutes, which pass upon simple majorities of both houses of Congress, usually "will work just fine."
Even putting aside the glib assertion that "the international system has most of the rules it needs," Rubin's argument falters on a number of points:
► History: The op-ed's ahistorical in its implication that this is a new problem. Presidential struggles to clear the 2/3 Senate hurdle are "nothing new," as our Opinio Juris colleague Duncan Hollis pointed out. Failure to secure approval dates at least to President Woodrow Wilson, and the Senate's rejections of the Versailles Treaty (right) and the League of Nations Covenant, in 1919 and again in 1920 -- years surely within the putative "Age of Treaties." Rubin himself no doubt recalls President Bill Clinton's CTBT debacle back in 1999.
► Politics: Also implicit is an assumption that congressional majorities easily may be obtained. Rubin points to legislative efforts on climate change as an example of his position "already being used." He pretermits, however, that these efforts have yet to bear statutory fruit. Given that the New Year will inaugurate a House of Representatives with a heavy GOP lean, getting Congress to okay internationally aimed reforms would seem far from simple.
► International Relations: Rubin's solution seems unlikely to give U.S. status abroad the hefty boost he suggests. Statutes and treaties are quite different legal animals. A statute may be altered, even repealed, at any time. Preferring the legislative path thus adds instability to the United States' foreign relations. What's more, a statute is the unilateral enactment of a single sovereign. In contrast, a treaty embodies that sovereign's consent not just to act, but to do so out of an international obligation. Treaties represent a deeper level of commitment, a promise to pursue global cooperation even if domestic political winds shift. Opting always for the U.S. statutory fix, at a time when other countries are urged to join treaty regimes, seems unlikely to ease what Rubin rightly calls "international frustration with American leadership."
Hard to see the op-ed's effort -- in essence, to put a brave face on an inferior option -- as much more than advance spin should New Start founder in the Senate.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Diplomacy has long been the backbone of U.S. foreign policy. It remains so today. The vast majority of my work at the State Department consists of engaging in diplomacy to address major global and regional challenges, such as confronting Iran's nuclear ambitions, facilitating negotatiations between the Israelis and the Palestinians, enhancing stability on the Korean Peninsula, and working with other governments to bring emergency relief to Haiti, And President Barack Obama and I certainly relied on old-fashioned diplomatic elbow grease to hammer out a last-minute accord at the Copenhagen conference on climate change last December.

-- U.S. Secretary of State Hillary Clinton, in "Leading Through Civilian Power: Redefining American Diplomacy and Development." (credit for October 2010 photo) Clinton develops her wide-ranging exposition of the global work at State and myriad other agencies around the theme of her own initiative, "the first Quadrennial Diplomacy and Development Review (QDDR), a wholesale review of the State Department and USAID." The article appears in the November/December 2010 Foreign Affairs, a "special issue" on the topic of "The World Ahead." Some of the other articles are of interest, but the lineup as a whole discomfits: if it weren't for Secretaries of State (Clinton and her predecessor, Madeleine Albright), there'd be virtually no women authors in the entire issue. We, too, think deeply about the world to come.

Climate Change: A View from South Carolina

I just spent the last couple of days participating in a very interesting conference at the University of South Carolina organized by Prof. Cinnamon Carlarne (pictured left), who also has recently published a thoughtful book with Oxford University Press that compares U.S. and European climate change law. She brought together a geographically diverse group which included people from multiple disciplines in academia and from practice to analyze how to make progress on climate change in the current climate. The conference was organized by legal scale (international, national, regional), but each panel was also designed to analyze the issues at its level of governance in interaction with other levels. The conversation additionally included very interesting informal break-out sessions that brought together the speakers and participants to discuss cross-cutting issues of interest.
The conference modeled the kind of dialogue that is needed to move things forward on climate change. It grappled with the deeply intersectional nature of the problem and law’s interaction with it. And to have this dialogue in South Carolina--a state that faces complex issues around both mitigation and adaption in a region that grapples with both at-risk coastlines and strong anti-regulatory sentiments—was particularly compelling. Congratulations Cinnamon!

Coral Reefs Dying From Climate Change

Last week, the Wildlife Conservation Society (WCS) reported that coral reefs off the coast of Indonesia are being devastated by unusually warm sea waters. In what is being called "one of the most rapid and destructive coral bleaching events on record" large swaths of coral off the coast of Sumatra have died.Climate change poses a serious threat to coral reefs. Indeed, the Intergovernmental Panel on Climate Change (IPCC) devoted much of the marine ecosystems chapter of its 2007 Report to coral reefs. The International Union for the Conservation of Nature (IUCN) lists many species of coral on its "red list" of threatened species.
Corals reefs are some of the most diverse ecosystems on earth. They occupy only one percent of the world's ocean surface but provide a home for 25 percent of all sea life - including fish that millions of people rely on for food.
Ordinarily coral reefs are brightly colored because coral lives in a symbiotic relationship with algae. Coral bleaching occurs when environmental stresses like excessive heat cause coral to expel the algae with which they normally coexist. When this occurs, the coral reefs turn a dull and lifeless grey. If the bleaching is severe enough, the coral die from a lack of the energy and oxygen that the algae provide.
Not only does the increased water temperature associated with global warming jeopardize coral survival, so does the increased ocean acidification caused by excess atmospheric carbon dioxide being absorbed by the world’s oceans. Reefs protect the coastlines of many countries, especially islands, from storm surges. Thus, coral reef losses put small island states, already threatened by rising sea levels associated with climate change , in further jeopardy.
Aside from their coast-protecting and biodiversity promoting utility, coral reefs are also breathtakingly beautiful. The loss of that beauty compounds the biological and ecological losses. If the current rate of loss continues, we may lose 70% of the world's coral reefs in the near future.
This past May, Indian Ocean water temperatures were significantly warmer than usual (about 7 degrees Fahrenheit above average.) The stress associated with warmer water is killing what had been some of the most biodiverse coral reefs in the world. Indeed, the WCS reports that reefs are up to 80 percent bleached, with more colonies expected to die off in the coming months
The loss of these coral reefs (which incidentally were either unaffected or recovering well from the 2004 Indian Ocean tsunami) is a devastating blow to the region, and the world. Not only is the loss of biodiversity a tragedy in itself, but it comes as a tremendous loss to the regions inhabitants, many of whom are impoverished and dependent on the reef for their food and livelihood.
And, unfortunately, rather than a one-off occurrence, this is a harbinger of things to come. As climate change unfolds, the rate and nature of environmental changes will exceed the ability of coral to adapt. The steady warming and acidification of the world’s oceans will pose a threat to reefs around the world, and to the communities that depend on them.
Dr. Caleb McClennen, WCS-Marine Program Director, described the coral die-off as “another unfortunate reminder that international efforts to curb the causes and effects of climate change must be made if these sensitive ecosystems and the vulnerable human communities around the world that depend on them are to adapt and endure.”

Climates, Crops, and Migration

We've blogged before about the phenomenon of climate-induced displacement; in this week's Proceedings of the National Academy of Sciences, three Princeton researchers take a first stab at quantitatively estimating how the impact of climate change on agricultural productivity will effect migration levels. Specifically, they explore past responses to climate-driven crop failures in Mexico, and rely on statistical modeling to estimate that a 10% reduction in crop yields will lead an additional 2% of the population to emigrate. The authors predict that, depending on the warming scenarios and adaptation levels one assumes, anywhere from 1.4 million to 6.7 million adult Mexicans are likely to emigrate as a result of declines in agricultural productivity alone over the next 70 years.

Though I don't take issue with the methodology, statistical models are inherently limited in their ability to fully capture the complexity of real world decisions -- here, choices concerning migration. Given the number of factors involved in migration choices, similar crop failures in the future might not have the same impact as past failures. Despite these limitations, the study offers compelling evidence that international migration due to climate-driven crop failure is likely to be significant over the coming years. How should we respond?
As IntLawGrrl guest/alumna Jane McAdam has explained, the international law of migration offers no solutions for those displaced due to climate change. As greater and greater numbers of migrants are forced to move due to crop failure and other consequences of climate change, developed nations will need to develop a coherent response or risk being overwhelmed by irregular migration flows. In migrant-producing states, the study suggests that governments could assist subsistence farmers to become more effective -- and of course migrant-receiving states and international organizations could assist in this task. In both of these approaches, the particular needs of and risks faced by women migrants must be taken into account. Particularly with respect to displacement driven by crop failure, which will impact the very poorest women, legal solutions should ensure the physical and financial security of female migrants, and development strategies should focus on empowering rural women.

A Grim World Oceans Day

Today is the Second Annual Commemoration of the United Nations' World Oceans Day, first proclaimed by the General Assembly in ¶ 171 of Resolution 63/111 (2008). (Prior IntLawGrrls posts.)
The theme for this year’s celebration is “Our oceans: opportunities and challenges."
Unfortunately, right now the challenges are pretty overwhelming.
In last year's World Oceans Day speech, U.N. Secretary-General Ban Ki-Moon acknowledged that

human activities are taking a terrible toll on the world’s oceans and seas.

And, that was before Deepwater Horizon pumped hundreds of thousands of gallons of oil into the Gulf, killing an unknown number of fish, marine mammals, sea turtles and birds. (Prior IntLawGrrls posts available here.) The toxic dispersants being sprayed by the ton are taking an additional heavy toll. All told, the Gulf ecosystem has been devastated in ways that were unimaginable a few short months ago.
As we struggle to respond to the acute crisis of oil in the Gulf of Mexico, it is easy to lose sight of the profound impact that Global Warming is having on the world's oceans. Polar ice caps are melting, coral is dying, fish stocks have collapsed, and ocean acidification may be eroding the base of the ocean food chain.
Secretary-General Ban's 2010 World Oceans Day message is as timely as it is troubling:

The diversity of life in the oceans is under ever-increasing strain. Over-exploitation of marine living resources, climate change, and pollution from hazardous materials and activities all pose a grave threat to the marine environment.

UPDATE: A few hours ago, Jane Lubchenco, Administratof of the National Oceanic and Atmospheric Administration confirmed that deep sea plumes of oil are spreading across the Gulf. A very bad World Oceans Day just got much worse.

On May 23

On this day in ...
... 2002, Iceland ratified the Kyoto Protocol, thus satisfying a key prerequisite to entry into force of that 1998 pact; that is, ratification by at least 55 states party to the 1992 U.N. Framework Convention on Climate Change. A 2d step would be met with Russia's ratification 2 years later, so that the Protocol would enter into force on February 16, 2005. As detailed in posts available here, Kyoto's since ceded ground to the Copenhagen process.

(Prior May 23 posts are here, here, and here.)

Rule of Law, Environmental Clinics, Justice, and Academic Freedom

At Washington and Lee University School of Law’s commencement ceremony last weekend, ABA President Carolyn Lamm made a call for the critical role of lawyers in forwarding justice. Talking about the rule of law, in particular, she said: “it is not just the rule of law that we are called upon to strengthen but the rule of just law.”
Her remarks made me reflect upon the current attacks on U.S. clinical legal education, and especially environmental clinics, by state legislatures in light of my experiences helping to develop clinical legal education in China almost ten years ago. As a Yale-China Legal Education Fellow at Sun Yat-Sen University’s law school, I taught civil rights law and helped the school launch its first legal clinic, which focused on labor law. The Ford Foundation has played a critical role in launching clinical legal education programs around the world, including in both the United States and China.
During my time working with clinical legal education in China, I often heard this Ford Foundation clinical initative described as playing a critical role in developing the rule of law there. Because they provided students with an active learning experience and practical understanding of the law, these clinical experiences helped them to bridge the gap between school and practice. They also provided students with the chance to reflect upon professional responsibility under the guidance of their professors. Whenever I have encountered people who scoff at the notion that I was teaching law in China out of a sense that there is not meaningful law there, I describe a day I spent observing students provide legal advice to injured workers in a manner very much like what takes place in clinics in this country.
From my own experiences of clinical legal education in both countries and the stories of my students and colleagues, I am quite certain that clinics play a critical role in helping our students strengthen the “rule of just law.” As the Society of American Law Teachers (SALT), which I serve on the board of governors of, has articulated in its responses (here and here) to these clinic attacks, clinics play a crucial role in preparing our students to be ethical lawyers and in serving populations (like those injured farm workers in China) who would not otherwise be able to have needed legal assistance. When state legislatures threaten to impede the operation of these clinics, they put at risk our student’s education and law schools’ provision of a needed service to those who are disadvantaged in our society.
Moreover, these attacks are part of a broader, troubling pattern exemplified by the Virginia Attorney General’s recent request that UVA provide information on climate scientist Michael Mann. Law schools and the universities in which they are located need academic freedom in order to provide important knowledge to society and educate the next generation effectively. These attacks are wrong not simply because they are politically motivated—supported by powerful corporations facing suit by clinics or by those who disagree with climate science—but because they make it harder for universities to be places in which people learn through the free flow of ideas. If we create a climate of fear around research already being scrutinized through a peer-review system or around teaching people to provide needed representation to a broad range of clients, we undermine the ability of universities and their law schools to serve society. As our country and the world faces a broad range of vexing problems, such service is more needed than ever.

Selden v. Grotius, a sequel

There's something about the law of the sea.
Teaching Public International Law has taught that although the law of the sea is among those furthest from the experience of the average student, the average student nonetheless finds in the law of the sea a kind of romance. Perhaps we all still long for our own turn on Treasure Island, our own Two Years Before the Mast.
Especially gripping is the battle of words between John Selden and Hugo Grotius (prior IntLawGrrls posts). Theirs was a prime politicolegal-philosophical struggle of the middle of the last millennium -- a battle over whether the sea/mare was clausum/closed, as England's Selden maintained, or liberum/free, as Holland's Grotius posited. It is, moreover, a struggle that many an intlaw casebook renders epic. (Caveat: Our colleague Edward Gordon has published a must-read study that adds considerable complexity to this binary account of the debate respecting law and oceans.)
That struggle undergirds the newest ASIL Insight, entitled "Climate Change and Guidelines for Argo Profiling Float." The authors -- oceans experts Aurora Mateos (below left) and Dr. Montserrat Gorina-Ysern -- thus open with the reminder that

the law of the sea remains affected by an ago-old controversy among scientists and diplomats over the dichotomy between 'freedom and regulation.'

The authors proceed to detail, 1st, how the Argo float, which promises to provide data on inter alia climate change is among the "oceanic research activities with new technologies, instruments, and equipment" that engenders "a fierce resistance to legal regulation of the high seas," and 2d, how that resistance "coexists in an uneasy compromise with a fierce protection of coastal States' sovereign rights to explore and exploit the natural resources of the continental shelf and the Exclusive Economic Zone (EEC)." (image credits here and here)
Bottom line:
► In Grotian fashion, coastal states near whose waters such research might be conducted by other states -- the Insight mentions Peru and Argentina -- maintain that the Argo float and similar research activities fall within the United Nations' regulatory structure established by the 1982 U.N. Convention on the Law of the Sea.
► But research-resource-rich countries like the United States (a nonparty to the 1982 Convention, as we've posted) lean toward considering such research activities the unregulable beneficiaries of Seldenian freedom of the high seas.
The Insight authors thus expose a politicolegal-philosophical struggle that offers intlaw profs -- at least those able to navigate the viral soup of acronyms epidemic in environmental law -- a contemporary application of the old Selden-Grotius standoff.

Invitation: Second Annual W&L School of Law Energy, Climate, and Environment Symposium This Friday

Please join us for the second annual symposium of the Washington and Lee University School of Law’s Journal of Energy, Climate, and Environment (JECE) and the Environmental Law Society (ELS) entitled: The Intersection of Renewable Energy Development and Geoengineering. The symposium will take place on Friday, March 19, 2010, from 9 am to 5 pm in Classroom D at Washington and Lee University School of Law. The symposium will model low-carbon conferencing through having over half of the panelists participate remotely, and will be streamed live at http://law.wlu.edu/geoengineering. The event features four panels of leading scholars and policymakers, and a keynote Johnson lunchtime lecture by Professor Jonathan Cannon entitled: Acting in Uncertainty's Shadow: The Challenge of Climate Change Policy. If you plan to attend the lunchtime talk in person, please RSVP to Hari Osofsky, osofskyh@wlu.edu, so that we can reserve a box lunch for you.
In this symposium, leading scholars will grapple with the complexities of attempts to use technological innovation and transfer to address climate change. Renewable energy sources reduce our nation's dependence on foreign oil and nonrenewable energy sources, and in the process, our greenhouse gas emissions, but must be readily available and practical to provide the country with the energy it needs to continue to grow and prosper. Geoengineering is increasingly part of the policy discussion as concerns grow that our efforts at mitigation will be inadequate. However, this emerging field must contend with the potential for unexpected environmental impacts, as well as important legal and moral questions.
The first JECE/ELS symposium addressed climate change and greenhouse gas regulations facing the incoming Obama administration in 2009. We are in the process of finalizing the resulting publication from that symposium, which included a number of leading legal and social science thinkers, and served as the first meeting of a regional group of scholars working on climate change. The 2010 symposium expands on the work of the 2009 interdisciplinary project by exploring the legal, political, and social controversies surrounding the many policy initiatives focusing on the development of alternative energy sources while exploring other ways that science and technology may help in repairing our already-damaged climate. This intersection of law with science and technology poses critical ethical, environmental, national security perspectives.

Agenda

8:00-9:00 am
Symposium Registration

9:00 am-9:10 am
Welcome and Opening Remarks
Hari Osofsky, Associate Professor, Washington and Lee University School of Law

9:05-10:20 am
Panel One: Property, Economics and Clean Energy
Joel Eisen, Professor, University of Richmond School of Law
Alexandra Klass, Associate Professor, University of Minnesota Law School
Michael Vandenbergh, Tarkington Professor of Law, Vanderbilt University Law School, Co-Director, Regulatory Program, and Director, Climate Change Research Network, Vanderbilt University Law School
Moderator: Adam Scales, Associate Professor

10:30-11:45 am
Panel Two: Federalism, Energy, and Technology
Ann Carlson, Shirley Shapiro Professor of Environmental Law and Inaugural Faculty Director of the Emmett Center on Climate Change and the Environment, UCLA School of Law
Hari Osofsky, Associate Professor, Washington and Lee University School of Law
Erin Ryan, Associate Professor, William & Mary Law School
Moderator: Christopher Bruner, Associate Professor, Washington and Lee University School of Law

12:00–1:00 pm
Lunchtime Keynote Address and Johnson Lecture
Acting in Uncertainty's Shadow: The Challenge of Climate Change Policy
Jonathan Cannon, Blaine T. Phillips Distinguished Professor of Environmental Law, Class of 1941 Research Professor of Law, and Director of Environmental and Land Use Law Program

1:30-2:45 pm
Panel Three: Challenges of Clean Technology Implementation
Marcilynn Burke, Deputy Director, Programs and Policy, Bureau of Land Management, U.S. Department of the Interior
Richard Hildreth, Professor, Dean's Distinguished Faculty Fellow, and Director of the Ocean and Coastal Law Center, University of Oregon School of Law
Ashira Ostrow, Associate Professor, Hofstra University School of Law
Moderator: Laura Henry-Stone, Post-Doctoral Fellow in Environmental Studies, Washington and Lee University

3:00-4:30 pm
Panel Four: Geoengineering and Ethical Challenges of Technology
Deepa Badrinarayana, Assistant Professor, Chapman University School of Law
William C.G. Burns, Senior Fellow, Center for Global Law & Policy, Santa Clara University School of Law
Cinnamon Piñon Carlarne, Assistant Professor, University of South Carolina School of Law
Maria Savasta-Kennedy, Clinical Professor of Law and Director of the Externship Program, UNC School of Law
Moderator: Matt Tuchler, Associate Professor of Chemistry, Washington and Lee University

4:30 pm – 5:00 pm
Concluding Reflections
Robert Danforth, Associate Dean, Washington and Lee University School of Law
Hari Osofsky, Associate Professor, Washington and Lee University School of Law

Post-Copenhagen

To the disappointment of many, but the surprise of few, the Fifteenth Conference of the Parties (COP-15) of the United Nations Framework Convention on Climate Change, held in December 2009 in Copenhagen, failed to produce an agreement with binding carbon emissions reductions targets.
The original plan had been to complete negotiations for a new international legal agreement on climate change that would cover the post-Kyoto period. (The Kyoto Protocol’s commitment period comes to an end in 2012.) As the meeting approached, it became clear that this was unlikely to occur. But nobody expected what did happen . . . .
From all reports, the Copenhagen negotiations were completely deadlocked until December 18th, when U.S. President Barak Obama arrived for the last scheduled day of the conference. Through his meetings with Chinese Premier Wen Jiabao, Indian Prime Minister Manmohan Singh, Brazilian President Luiz Inacio Lula da Silva, and South African President Jacob Zuma, a political agreement for the Copenhagen Accord emerged. After world leaders drew on their inner college student and pulled a raucous all-nighter of negotiations, COP-15 agreed to "take note" of this Accord.
This Copenhagen Accord is clearly a political rather than legal agreement. It many flaws (they are well catalogued here and here.) But the agreement did set a January 31 deadline for developed states to declare their own emissions reductions targets and developing countries to declare "nationally appropriate" voluntary mitigation measures. That deadline is fast approaching.
The Copenhagen Accord got something of a boost yesterday when China, Brazil and India announced that they would submit their voluntary mitigation measures by the deadline. No amount of voluntary measures, or self-declared emissions reductions can ensure that we actually reduce our global carbon footprint to a sustainable level, but at least this movement may bode well for the Mexico City meeting this December.
At the same time, countries most threatened by climate change are not waiting around for an international agreement. For example, the Federated State of Micronesia requested that the Czech Environment Ministry to conduct a transboundary Environmental Impact Assessment (EIA)before authorizing modifications to the Czech Republic's biggest industrial carbon emitter. Micronesia asserted that it:

has reasonable grounds to believe that its territory will be affected by the significant environmental impacts [from the facility.]

As low-lying nations become increasingly desperate, we can probably expect more of them to take this tack.

Where and when transnational law develops

(Part 3 of a 3-part series of guest posts by Mireille Delmas-Marty)

Having traced the development in France and the United States of transnational law processes such as cross-referencing, harmonization, and hybridisation, we now examine the questions of where and when transnational law develops.

Location of transnational Law
In the United States, much of the development of transnational law seems to be found at the national level, given the significance of the roles played recently by the Supreme Court regarding cross-referencing and, to a lesser extent, harmonisation.
In France, the national level also remains important. But the international regional level also is very much in play. National judges are becoming international judges, in the sense that they may, and must, exclude national law when it is contrary to European law. European statutes and case law increasingly are incorporated into domestic law. Just as Americans say,

"International law is part of our law,"

recalling the statement in Paquete Habana (1900), we in France say,

"European law is part of our law."

The global level, finally, is the right answer in some areas. This may be seen in, for example:
► Criminal law, in which international conventions have initiated global movements toward change. There may be no European prosecutor -- an innovation that I advocated in my work on Europe’s Corpus Juris project -- but there is already a global prosecutor, in office at the International Criminal Court.
► Environmental law, in which the 1997 adoption at the global level of the Kyoto Protocol, which set targets for regulating greenhouse gases has spurred legal reforms in France and other states and at the European regional level.

Timing of transnational law
The proliferation of international conventions designed to bring about change in the transnational legal world provokes scrutiny of the final question of when -- at what pace -- transnational law develops.
It seems unrealistic to demand implementation of international conventions at the same time in every place. It is thus not surprising to discover the emergence of legal practices allowing states to incorporate various norms of international law at their own pace. This multiple-speed mechanism of implementation -- which I have labeled "polychrony" in my book Ordering Pluralism (trans. Naomi Norberg 2009) -- may contribute to the ordering of legal pluralism. That is because it enables the integration process to continue without the slowest wagon dictating the speed of the convoy, as former German Chancellor Helmut Kohl once put it.
Examples of polychrony:
► At the European level, some states welcome passport-free circulation within the multinational borders of what’s known as the Schengen area, while other states lag behind, maintaining strict controls at their own national borders.
► At the global level, Article 3(1) of the 1992 U.N. Framework Convention on Climate Change articulates a principle of "common but differentiated responsibilities" that establishes different time tracks for reduction of greenhouse gases. The same method was suggested as a way for the World Trade Organisation to allow developing countries to make commitments according to their means and abilities, rather than to exclude them from multinational discussion for the reason that they cannot integrate at the most rapid speed.
In effect, embrace of polychrony transforms a strategy of accepting derogation from multistate legal norms into one of anticipating conformity to those norms. Risks remain, however: integration by the mechanisms of transnational law may result in the disintegration of national and international laws.

Conclusion
Scrutiny of legal pluralism in the transnational legal world reveals not a well established global legal order, but rather interactions between national and international systems that play out in apparently contradictory, nonlinear, disorderly movements. It is a world in which new processes, extremely complex, continue to evolve. Legal systems seem to change form almost as soon as they take shape, long before we have had the time to determine their outlines.
This contemporary reality departs from the hierarchical pyramid-of-law metaphor advanced decades ago by the jurist Hans Kelsen. I suggest that we replace the image of the static pyramid for that of dynamic clouds. The cloud metaphor aptly represents the continuity of formation and deformation ongoing in Europe. It applies too at the global level, where individual experience and interests represent fragments of an ever-changing sky.
Let us dream of the day when a common core of values might in a single breath order our marvelous clouds without forcing them to stay in a single space.

(Part 1 of this 3-part guest post, which introduced comparison of the French and U.S. approaches to the transnational legal world, is here; Part 2, on how transnational law develops, is here.)