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.

Toxic Pollution Verdict in Ivory Coast

Four years ago, Trafigura illegally dumped toxic wastesin various locations around the city of Abjidjan in Cote d' Ivoire. (See prior post.) More than 100,000 people were sickened and 15 died from exposure to the wastes.
Today, a Dutch court found Trafigura criminally liable for offenses associated with this incident. This guilty verdict is the first time anyone has been held criminally accountable for one of the most egregious environmental crimes in recent memory. The prosecutor had requested fines in excess of 2 million euros but the court ultimately imposed a fine of 1 million euros. Trafigura continues to deny that it did anything wrong in connection with the incident.
In July 2006, the tanker Probo Koala, which had been hired by Trafigura arrived in Amsterdam with a load of purported cleaning slops for treatment and disposal. Amsterdam Port Services, a waste processing company, agreed to process and dispose of the waste for about $15,000. But as workers unloaded the waste, they found problems: there was much more waste than the contract specified (around 400 tons) and it was far more toxic than expected and its fumes were making workers sick. Luut, Planting, a spokesman for Amsterdam Port Services described the waste as "pitch black and had a heavy stench. . . . .No one had ever seen similar waste.”
The company stopped unloading the sludge, ordered analyses and then informed the Amsterdam city authorities of the presence of hazardous waste. After confirming that the waste, composed of caustic soda and petroleum residues, was vastly more toxic than expected, Amsterdam Port Services raised its price for processing the waste to $300,000. Balking at the increased price, Trafigura decided to have the ship take back the waste. So, the hundreds of tons of waste were pumped back into the Probo Koala, a Greek-owned vessel flying a Panamanian flag, and leased by the London branch of a Swiss trading corporation. For reasons that have never been fully explained, the Dutch officials let the ship leave port with its toxic cargo. The ship stopped in Estonia and Lagos Nigeria, but could not find anyone to agree to take the waste. The Probo Koala eventually wound up in Abidjan, Cote d'Ivoire, one of Africa's largest seaports. Here, the waste was delivered to a local dumping company, Compagnie Tommy, which proceeded to illegally dumped the waste at 18 sites around the city rather than process it.Contemporaneous descriptions of the situation were stark:

“In 30 years of doing this kind of work I have never seen anything like this,” said Jean-Loup Quéru, an engineer with a French cleanup company brought in by the Ivorian government to remove the waste. “This kind of industrial waste, dumped in this urban setting, in the middle of the city, never.”

Amid an international firestorm of criticism, Trafigura was forced to pay $200 million to the Ivory Coast government to fund a clean-up of the contaminated sites. A lawsuit brought by Leigh Day on behalf of nearly 30,000 victims of the toxic waste dumping was settled in September 2009 when the High Court of England and Wales approved a $45 million settlement.
The Dutch case focused on the company's criminal activities associated with concealing the true nature of the hazardous waste in Amsterdam. The court found Trafigura guilty of violating European waste export laws aimed at preventing, "the export of waste to the third world and harming the environment." Trafigura was also found guilty of concealing the "harmful nature" of the waste on board the Probo Koala ship that arrived at the port of Amsterdam in July 2006, but was redirected to the Ivory Coast.
The court sentenced the captain of the Probo Koala ship, 46-year-old Sergiy Chertov, to a five-year suspended jail term, and fined 43-year-old Trafigura employee Naeem Ahmed, who coordinated the operation in the port of Amsterdam, 25,000 euros. The court did not consider the clearly criminal actions that occurred in Cote d'Ivoire, for which no one has ever been held accountable.

When hoping for the best is official policy

Today's New York Times update on the Deepwater Horizon disaster opens with BP’s failed efforts to control the remaining two leaks via concrete, or remote control robots. Strangely, the article makes no mention of the missing remote shut-off valve called an acoustic switch. This $500,000 device might well have prevented this whole catastrophe. But, the United States does not require that deepwater oil rigs install an acoustic switch, and BP and Transocean decided to forego it. The United States considered requiring these switches in 2000, but Bush administration nixed the idea after industry pushback. My guess is that Vice President Cheney's secretive Energy Task Force had a hand in that, but since the Task Force operated entirely behind closed doors, we may never know the truth of how the United States made this ill-considered choice

Apparently, the Times does not consider the fact that this device, which is required in other major off-shore drilling countries, like Norway and Brazil, didn't make the company's cost-benefit cut, to be part of “all the news fit to print”.

With that critical piece of information missing, the Times tells us a tale of plucky engineers trying innovative solutions that, by gosh, just might work. The article is full of solemn quotes like "as so many other response efforts so far have shown, engineering problems that can be solved on the ground can prove perilously stubborn 5,000 feet underwater." The coverage has a "Gee, who could have guessed" quality that is extremely disturbing.
It is no surprise that things are different 5000 feet down. The concern that those differences would make it virtually impossible to respond to an oil spill is what has driven environmental opposition to this kind of drilling in the first place.

What is glaringly obvious is that BP, federal regulators and the rest of the oil industry should have thought this through before--there should already be a plan for what to do when there is a blow out that is pumping 210,000 gallons a day of oil is contaminating some the nation's most valuable and fragile ecosystems. It is really very simple. A worst-case scenario analysis, and a plan to deal with it, should be part of every regulatory approval process. That way, we get drilling only when (and if) it can be done safely--with plans in place to deal with obvious possiblities like blow outs and leaks. The Clean Air Act already requires this kind of analysis as part of the regulatory approval process. EPA used to routinely require a worst-case scenario analysis, but the Reagan Administration "got government off our backs" by eliminating the worst-case scenario analysis. And the Supreme Court let them.

We might have had sober analysis and careful planning. Instead, BP's response to its catastrophic oil spill is taking on the quality of a Judy Garland/ Mickey Rooney movie: "hey my dad has some new technology, lets try to stop an oil spill."

On October 4

On this day in ...

... 1991, the Protocol on Environmental Protection to the Antarctic Treaty was opened for signature. This followup to the 1principal treaty of 1961 (prior post) would enter into force 7 years later, and now has 28 member states. Its mandatory provisions include commitment to the "comprehensive protection of the Antarctic environment"; designation of Antarctica (right) (photo credit) as a "natural reserve, devoted to peace and science"; articulation of environmental protection principles; prohibition of commercial mineral resource activity; and requirement of environmental impact assessment of any proposed activity.

(Prior October 4 posts are here and here.)

On September 27

On this day in ...

... 1962, the publishing house of Houghtom Mifflin issued Silent Spring, a book that a Time cover story credited with "Breaking the Silence on DDT." Preceding publication of the work by biologist Rachel Carson had been excerpts in the New Yorker; her allegations that DDT and other pesticides were being overused to the point that they had become "Elixirs of Death" had so disturbed chemical manufacturers that they threatened to sue to block publication of the book. In Time's words:

When the book appeared, industry critics assailed 'the hysterical woman,' but it became an instant best seller with lasting impact. It spurred the banning of DDT
in the U.S., the passage of major environmental laws and eventually a global treaty to phase out 12 pesticides known as 'the dirty dozen.'

Carson died from breast cancer 2 years after publication and well before adoption of the treaty mentioned above, the 2001 Stockholm Convention on Persistent Organic Pollutants. A 2007 National Public Radio broadcast, marking the centenary of her birth, detailed how, decades after Silent Spring appeared, Carson's "work continues to stir up controversy on Capitol Hill." (credit for Book-of-the-Month Club edition, including approving "report" on the book by U.S. Supreme Court Justice William O. Douglas)

(Prior September 27 posts are here and here.)

Patent law & climate change

Many thanks to IntLawGrrls for this giving me this opportunity to appear as a guest blogger especially on a topic that is close to my heart – finding solutions to global warming.
I am an intellectual property lawyer, and in the course of my research I wondered whether intellectual property law can do something to alleviate the global warming problem. It has now almost become trite to say that this is one of the most pressing problems we are facing. Very few would also now deny that humans are the cause of this greenhouse effect and the correlated climate change. What has not been much noted so far is that this extraordinary release of greenhouse gases in the earth's atmosphere may be due in major part to our patent laws.
Indeed, the main goal of patent laws is to incentivise industrial and technological development. This, in turn, creates pollution, including the release of greenhouse gases. (photo credit) The question underlying my scholarship, therefore, is whether patent law should play a role in the protection of the environment and, more specifically, in the cooling of the planet.
The question itself raises questions:
► 1st, Do patent justifications accommodate this goal? This is the subject of an article of mine, “Patent's role in the protection of the environment: re-assessing patent law and its justifications in the 21st century,” that recently appeared at 40 International Review of Intellectual Property and Competition Law 249 (2009), a publication of the Max Planck Institute for Intellectual Property, Competition and Tax Law, based in Munich, Germany.
My article reveals that despite outwardly neutrality, patent laws in fact already cater to some extent for the protection of the environment, through Article 53(a) of the European Patent Convention and corresponding national provisions. That provision in the 1973 regional treaty states as follows:

Exceptions to patentability
European patents shall not be granted in respect of:
(a) inventions the publication or exploitation of which would be contrary to "ordre public" or morality, provided that the exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation in some or all of the Contracting States; ....

My research further shows that current justifications do not prevent taking environmental concerns, and more particularly climate change, into account. Some seem even amenable to such concerns. In this light, I submit that patent justifications and laws should be re-thought to include environmental goals.
► 2d, Notwithstanding this conclusion, should patent law be fulfilling this role, in addition to environmental law? If so, what role -- modest or more pronounced -- should patent law play in the prevention of pollution, and the reduction of greenhouse gases in particular? How should this role be implemented in practice? Seeking answers to this set of questions is another article of mine, “Should patent law help cool the planet? An inquiry from the point of view of environmental law,” published in 2 installments, Part 1 in issue 4 of volume 31 European Intellectual Property Review (2009) beginning at page 168, and Part 2 in issue 5 beginning at page 227.
This article shows that whatever the position of positive patent law and its philosophical justifications may be, in the European Union, patent laws must take account of environmental laws, because the European Community Treaty forces them to. Part 1 reviews general environmental principles as they apply to the issue of climate change, as well as specific rules relating to global warming, in order to discover the impact of environmental laws on patent laws. Part 2 analyses how patent law can help reduce greenhouse gas emissions in the atmosphere over and above the standard now set by environmental laws. It reviews the different possible systems that can be put in place and recommends a method to ascertain the eco-friendliness of an invention and who should bear this burden of proof. Concluding that patent laws urgently need to address environmental concerns and, more particularly, the problem of climate change, the article advocates the adoption of a mixed system.
To date my research focuses on European and national patent and environmental laws, with respect to a specific problem, global warming. Many of the conclusions might also apply to environmental protection in general, but more research would need to be carried out to make such general extrapolation.

Wiwa v. Shell Settles

In a dramatic victory for environmental justice, Shell Oil just settled the case Wiwa v. Shell Oil on the eve of trial (mentioned in this post).
Brought under the Alien Tort Claims Act by Ken Saro-Wiwa, Jr., son of the murdered Nigerian poet and Ogoni activist Ken Saro-Wiwa (prior post), the lawsuit alleged that Royal Dutch Shell Company, its Nigerian subsidiary, Shell Petroleum Development Company, and the former head of Nigerian operations, Brian Anderson were all complicit in murder, torture, crimes against humanity and other crimes.
My CUNY colleague Jennie Green was one of the attorneys representing the Nigerian plaintiffs, along with lawyers from EarthRights International, the Center for Constitutional Rights (where Jennie is also a Senior Staff attorney) and the private law firms Schonbrun, DeSimone, Seplow, Harris and Hoffman, and Cohen, Milstein, Sellers and Toll. (and probably many others of whom I am unaware.) Not only did the attorneys recover more than $15 million for the families of the murder victims, but their victory sends a message that multinational corporations can no longer act with impunity. I have previously written about the need to hold corporate entities criminally liable when they violate of human rights. As Ken Saro-Wiwa said before he was executed, he was indeed a man of ideas and his ideas still live! This is indeed a victory for human rights and for environmental justice everywhere!

'Nuff said

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

[V]oluntary measures tend not to hold nations’ attention the way enforceable commitments might do.

-- our colleague Holly Doremus, in Irresponsible fisheries, in which she discusses a new critique by the World Wildlife Fund of (non)compliance with the U.N. Food and Agriculture Organization’s voluntary 1995 Code of Conduct for Responsible Fishing. Holly's post may be found at Environment & Law, a new blog, just added to our "connections" roll at right, that's written by members of the Berkeley and UCLA faculties. Among the other contributors is our colleague Cymie Payne, about whom we posted a while back.

On December 28

On this day in ...

... 1973 (35 years ago today), U.S. President Richard M. Nixon signed into law the Endangered Species Act. It lists 2 categories of protected species, "threatened" and "endangered," and empowered 2 agencies, the Fish and Wildlife Service (logo at right) and the National Oceanic and Atmospheric Administration Fisheries Service (NOAA), to implement protections. "In July of 2008, there were a total of 1,238 threatened or endangered animals protected under the act; and a total of 747 threatened or endangered plants protected under the act."

... 1522, a daughter, Margaret, was born out of wedlock to Charles V, then the Holy Roman Emperor, and Johanna Maria von der Gheest, a servant of a Flemish nobleman. Raised by aunts who were governors of the Netherlands, Margaret (left) -- known as Margaret of Austria, Duchess of Parma, Regent of the Netherlands -- governed the Netherlands in the name of her brother until her resignation in 1567. The Roman Catholic regent's rule was marked by erratic treatment of heretics.

Groundwater law courses U.N. currents

We've posted in the past on issues related to water -- its scarcity, the inescapable need for it, claims of right to it, and increasing attention to same. Well worth noting, then, is the initiative featured in a new ASIL Insight by Kerstin Mechlem (left), Lecturer at the Transitional Justice Institute, University of Ulster, in Northern Ireland.
Mechlem underscores the adoption last month by the United Nations' 60-year-old legal research arm, the International Law Commission, of draft articles for an international framework convention on transboundary aquifers; that is, on groundwater sources that cross national frontiers. (The draft articles are expected soon to be available here.)
After outlining the scope of the problem and events leading to adoption, Mechlem points to key aspects of the draft articles:
► the principle of equitable and reasonable utilization of water resources;
► the imposition of an obligation not to cause significant harm; and
► the imposition of an obligation to cooperate, by sharing information about water and entering agreements to protect water resources.
One novelty in the draft articles is the recognition of "the need to protect aquifers against harm, resulting, for example, from fertilizers or pesticide use or industry discharge," she writes.
The articles stop short of embracing the precautionary principle. The Rio Declaration on Environment and Development stated:

Principle 15
In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. 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.

The Rio Declaration was proclaimed in 1992, and Principle 15 has gained currency since then. Nonetheless, in the view of the ILC, precaution has not yet become a principle of customary international law. Mechlem writes: "Thus, the draft articles refer in Article 12 to a 'precautionary approach' rather than to the 'precautionary principle.'"
Mechlem, who served from 2002 to 2006 as a Legal Officer for the U.N. Food and Agriculture Organization, concludes her ASIL Insight by stating:
"Despite their shortcomings the draft articles are a significant step in the protection of transboundary aquifers." She looks forward one day to entry in force of "binding framework convention." (groundwater image credit)

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.