Compliance & transnational regulatory networks

(Thank you to IntLawGrrls for inviting me to contribute this guest post)

A number of transnational regulatory networks have appeared and/or expanded in power and influence in the last few decades. These networks are characterised by their members being national regulatory agencies rather than nation-states. They also tend to have no international status beyond that conferred by the national law of their host countries.
Transnational regulatory networks seem to be particularly prevalent in relation to financial regulation. Examples include: the Madrid-based International Organization of Securities Commissions, known as IOSCO; the International Association of Insurance Supervisors, based in Basel, Switzerland; and the Basel Committee on Banking Supervision (red oval logo below left).
These networks also exist in other areas: in competition law may found the International Competition Network; in environmental law, there's INECE, the Washington-based International Network for Environmental Compliance and Enforcement; and in criminal law, INTERPOL, the International Criminal Police Organization based in Lyon, France.
One of the reasons why these networks have grown in importance is because of the failure of the treaty process to solve some global problems. The treaty negotiation process is often time consuming and complex and is particularly inappropriate to problems which require a more immediate solution. In contrast transnational regulatory networks linked by technology can work quickly to make policy recommendations to their members. As such governments are increasingly turning to these networks for more timely solutions to global problems.
The importance of these networks in global governance and their growing power and influence has been documented in the literature, particularly in the work of Dr. Anne-Marie Slaughter (right), the Bert G. Kerstetter '66 University Professor of Politics and International Affairs at Princeton University and former Director of Policy Planning for the U.S. Department of State. (credit for photo by Denise Applewhite) Slaughter sees these networks as a solution to what she calls is the global paradox, that is, the need for global government for global problems but people being distrustful of global government. However one of the main difficulties of using these networks as the solution for global problems is that their agreements, guidelines, policy statements, etc generally have no international legal status and impose no binding obligations. As such these networks are usually limited to relying upon ‘soft law’ techniques such as networking, socialization, discussion and persuasion to have members adopt their recommendations. Soft law however creates a ‘compliance challenge’, compliance often being dependent upon coercion, self interest and the legitimacy of the proposed law.
In my article IOSCO’S Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information – A model for international regulatory convergence?, I consider the growth of one of these networks.
In particular, I example IOSCO's Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information. This Multilateral Memorandum standardizes the process by which securities commissions that are members of IOSCO can obtain information from other member securities commissions for enforcement purposes.
It appears that IOSCO envisages that this Multilateral Memorandum will become a key weapon in the arsenal of securities commissions to tackle securities offences which increasingly no longer respect jurisdictional boundaries. However, the impact of this Multilateral Memorandum appears to be more significant than just a mechanism to exchange information. This is because countries are required to have in place certain laws which mirror IOSCO’s recommendations for securities regulation before they may become a signatory to the Multilateral Memorandum. Members who want access to it, and who don’t have such laws in place, must first secure change in their domestic legislation. It therefore appears that IOSCO is using this Multilateral Memorandum as a ‘carrot’ in its efforts for members to adopt the organization’s model for securities regulation.
IOSCO is using the Multilateral Memorandum in its mission to achieve international convergence of securities regulation.
In the article, I also examine whether other transnational regulatory networks could use this model of developing a ‘carrot’ – that is, something members want access to– in their efforts to secure compliance of members to an international agreement.
Put another way, I pose the question as to whether the ‘carrot’ mechanism may offer a solution to the ‘compliance challenge’ of these networks. I conclude that it could. Mechanisms which work towards improving enforcement outcomes of regulators are likely to be the most successful. This is because the elimination of crime, in particular economic crimes, is one area in which the preferences of countries and regulators are most likely to converge.

Capping climate suit

All in all, therefore, the EU emissions trading scheme cannot be regarded as a prohibited excise duty on fuel for the purposes of Article 11(2)(c) of the Open Skies Agreement or Article 24(a) of the Chicago Convention.

Thus concluded Dr. Juliane Kokott (right), an Advocate General at the European Court of Justice, in an opinion issued Thursday.
Kokott's opinion detailed why, in her view, the European Union lawfully may require non-EU airline companies that fly in and out of Europe to buy carbon-offset permits. The requirement's the centerpiece of the EU Emissions Trading Scheme, launched in 2005 as a cap-and-trade mechanism for reducing carbon emissions that contribute to climate change.
U.S. carriers and the U.S. government were among those who have opposed such a determination, "which is not binding, but often influences the final outcome of a case before the court," as stated in this Washington Post article. Among the legal sources invoked were the international agreements cited above, available here and here.
The case, Air Transport Association of America and Others (C-366/10), remains under ECJ advisement.

OT '11

Once again it's the 1st Monday in October -- the day that the U.S. Supreme Court opens its October Term 2011. (photo credit)
Issues in cases to be argued include Medicaid regulations, sex-offender registration, religious freedom, assistance of counsel after conviction, and suspicionless strip searches. A global copyright case set for Tuesday presents a question intriguing to international lawyers:

Does Section 514 of the Uruguay Round Agreements Act violate the First Amendment of the United States Constitution?

That's just this week.
By Term's end, probably the last week of June 2012, we'll have a good idea of each party's nominees to run for President and Vice President in November. By then the Court may have decided a number of cases sure to push buttons among the electorate. Many of these potential judgments would concern issues of rights -- and thus would constitute evidence of state practice of interest to international lawyers no less than to American voters.
Examples (drawn from this report from Robert Barnes of the Washington Post), as well as this SCOTUSblog roundup of pending cert. petitions) of issues that the Court has been or is likely to be asked to review this Term:
► Does the Constitution allow all provisions of the 2010 federal health-care overhaul -- a statute that's the product in part of a "health is a human right" plank in the 2008 Democratic platform?
► Are all provisions constitutional in the tough state immigration law passed by Arizona (prior IntLawGrrls posts available here) -- a law since copied by other states?
► Can a state bar unmarried opposite- or same-sex couples from adopting children or serving as foster parents?
► Can a corporation be sued, in U.S. courts pursuant to the Alien Tort Statute, for torts in violation of the law of nations? (Petitions for certiorari in Bowoto v. Chevron and Kiobel v. Royal Dutch Petroleum Co., cases we've tracked in prior posts available here, were to have been considered by the Court on Friday.)
► May a state extend, beyond a 3-mile territorial-water limit, its environmental requirement that foreign- and U.S.-flagged ships use low-polluting fuels?
► What is the proper way to litigate survivors' claims for Nazi-looted art now in museum collections? (Grosz v. Museum of Modern Art, on which we've posted here and here, also was on Friday's Conference docket.)
OT '11, as insiders will call it, well may prove to be one for the books.

On October 1

On this day in ...
... 2011 (today), is celebrated World Vegetarian Day. Established by the North American Vegetarian Society, the day's celebrated elsewhere, too, as this post from Ireland indicates. (photo credit) The date launches the annual Vegetarian Awareness Month, aimed at, according to the North American group's site,

helping to create a better world because vegetarian diets have proven health benefits, save animals’ lives and help to preserve the Earth.

(Prior October 1 posts are here, here, here, and here.)

Climate Change Versus Clean Energy: How Can We Move Forward?

Working on climate change over the last several years has consistently pushed me to expand my comfort zone and explore new frontiers. Although I first approached it as an international law scholar, I soon became intrigued by the transnational networks of localities, states, and provinces taking action and the nuances of their place-specific strategies. More recently, as clean energy becomes the more politically viable proxy for engaging climate change (for example, in President Obama’s latest State of the Union address), I’ve begun learning the complex fabric of energy law and the uneasy energy/environment intersection (with the help of a really interesting discussion of the intersection by Lincoln Davies). I find myself immersed in new challenges again, as I try to wrap my head around SmartGrid, energy segregation, and the role of small cities and suburbs in addressing climate change even as I also worry about the turn towards geoengineering in the desperate search for ways to address climate change and nascent and fragmented accompanying governance approaches and more generally about the lack of viable international-level approaches for getting emissions down at the pace scientists say are needed.
As part of all of this, I’ve participated in some really exciting discussions these past few weeks of both climate change and clean energy where I’ve learned a great deal and been impressed at how interdisciplinary the conversations are becoming. But I always walk away from climate change and clean energy dialogues feeling very differently: depressed after the climate change ones and buzzing with new possibilities after the clean energy ones.

While there are significant new developments on climate change—I learned so much from being included in the conversation at the conference hosted by the University of Melbourne about Australia’s proposed climate change law and the resulting expert submission—the consensus always seems to be that nothing happening on the mitigation side is close to enough. In fact, in his keynote address following our climate change panel at a recent conference at Case Western on whether there is a crisis in international law, Richard Goldstone said that while there was not generally crisis in international law but rather in its implementation, climate change was one of the areas of real crisis. I agree. Each year, I understand new pieces of climate change law better, and the more I know, the more discouraged I become about the big picture (we are already well above 350 parts per million of carbon dioxide in the atmosphere—around 390 as of August 2011—with no meaningful plan for staying below the revised goal of staying below 450 parts per mission). I don’t know how to inject the nuance I think is needed into the politicized discussion, I don’t know how to garner the requisite political will, and it will be really hard to catalyze the creative governance approaches needed to transform the action going on outside of the international and national levels into a viable transnational strategy.
With clean energy, huge challenges also loom, but they somehow feel more manageable. Working on the marriage between science, technology, engineering, public policy, and law needed to advance these approaches is exciting. People across the political spectrum often are able to embrace the win-wins that energy efficiency paired with new technology can bring. We have a long tradition of governmental involvement in infrastructure in this country, and even if the politics and money aren’t yet there, it seems conceivable that they will get there and that we will invest in our grid. After a recent Smart Grid conference here at the University of Minnesota, I wanted to go read, take classes, and maybe even take on yet another degree.
The problem is that I know that all this excitement doesn’t solve the looming crisis of climate change. Clean energy solutions can’t replace meaningful progress on climate change—they are unlikely to bring mitigation quickly enough and they often don’t help focus energy on adaptation. But they do help because they get more mitigation than would have happened otherwise.
So where to go from here? In this country, we have a presidential election going on (yes, I know it’s not for over a year—but we’ve had a lot of debates and stump speeches already). I hope we can find a way to stop fighting and talk about these challenges in a meaningful way that cuts across what divides us. We need to make progress on both of these issues. Clean energy shouldn’t get buried in our fights because there is broad agreement on the need to move forward as we get increasingly behind other countries. And we need to stop focusing on what we disagree about on climate change science, and focus on what it would mean to be cautious in the face of risk (since almost everyone acknowledges at least some level of risk). On my discouraged days, I have no idea how we can climb this mountain. But on the good days, like this morning, I have hope that we can be thoughtful and move forward if we keep talking, acting, and building bridges (and transmission lines for renewables) that go somewhere.

(Cross-posted on Environmental Law Profs Blog)

On August 10

On this day in ...
... 1866 (145 years ago today), Bolivia and Chile settled on their border line in a treaty reached after years of negotiation. At issue was land in the Atacama Desert, which had been found to contain valuable nitrates. (credit for map showing Atacama Desert in yellow and outlying deserts in orange) The 24th-parallel boundary would be affirmed in another treaty 6 years later, which set up a revenue-sharing agreement respecting guano deposits on either side of the border.

(Prior August 10 posts are here, here, here, and here.)

On August 1

On this day in ...
... 2001 (10 years ago today), the European Environment Agency (logo at left) gained a group of new member states: Bulgaria, Cyprus, Latvia, Malta, Slovenia and Slovakia all joined on this day. The joinder preceded the entry of various of these countries into other regional intergovernmental organizations; specifically, NATO and the European Union.

(Prior August 1 posts are here, here, here, and here.)

Gender & Millennium Goals

(Part 2 of a 2-part series; Part 1 is here)

Having written in yesterday's post on "Making Justice Systems Work for Women," today I will focus on "Gender Justice and the Millennium Development Goals." These subtitles refer to the first and second parts, respectively, of Progress of the World’s Women: In Pursuit of Justice, a report that, as IntLawGrrls posted, was recently released by UN Women.
The second part of the UN Women report brings a gender perspective to evaluation of the progress that has been made with respect to realization of the United Nations' Millennium Development Goals. Agreed to by 189 countries in 2000, these goals consist of eight quantitative benchmarks that comprise a framework for eradicating poverty by 2015 (bottom) (image credit).
The most recent progress report on the goals by the United Nations Secretariat acknowledges shortcomings in the realization of the goals for women and girls. In contrast, UN Women’s report evaluates global progress toward the goals through a uniquely gendered lens, as follows:

Goal 1: Eradicate extreme poverty & hunger
The UN Women report notes that although global poverty rates have declined, the number of unemployed women rose, from 76 million in 2007 to 87 million in 2010.
Women in Latin America, the Caribbean, and sub-Saharan Africa are more likely to live in poor households than men. Even within households, women are less likely than men to earn cash income and, perhaps more disturbingly, 34% of women who do earn cash income have no say in how that money is spent.
Finally, the report notes that millions of women are doubly burdened by family care and domestic labor, and this further limits their choices, by preventing them from pursuing education and paid employment. The report observes that labor-saving technology such as fuel-efficient stoves, combined with affordable child care, will reduce women’s workloads and facilitate a more equitable division of household labor.

Goal 2: Achieve universal primary education
Primary school enrollment has risen for girls -- with 96 girls now enrolled for every 100 boys, up from 91 girls for every 100 boys in 1999. Yet girls remain unlikely to complete even primary education. In the Middle East and North Africa, for example, 25% of women aged 17 to 22 have fewer than four years of schooling, compared to 11.5% of men.
The education gender gap is particularly wide in rural areas. The report notes that Bolivia has made significant strides in narrowing the educational gender gap in remote areas by establishing satellite schools, which send teachers to isolated communities. Between 1992 and 2001, the percentage of rural girls who completed six years of schooling in Bolivia jumped from 47% to 74%.

Goal 3: Promote gender equality & empower women
Women have made little headway in advancing in the workforce in the past two decades. Between 1990 and 2009, the percentage of women in wage employment outside the agricultural sector rose to just 40% from 35%. Yet the Report notes that while the number of women in parliaments around the world has increased, female legislators still only account for 5% of parliamentary members globally. And even though secondary school enrollment for young women has increased in a manner similar to that of primary school enrollment, attendance rates are low and significant gaps exist between the urban rich and the rural poor in part because of poverty, early marriage and discrimination. The Report advocates the use of stipends to keep girls in school and quotas to increase women’s participation in government. Rwanda’s Constitution, for example, requires that at least 30% of its parliament be comprised of women. As noted in yesterday’s post, women’s critical mass in that legislature has already led to important legislative reforms for women.

Goal 4: Reduce child mortality
The overall mortality rate for children under 5 has dropped from 89 deaths per 1,000 live births in 1990 to 60 per 1,000 in 2009. However, prenatal sex selection and infanticide has led to significant gender disparities in child mortality rates, particularly in Asia. (See this post by IntLawGrrl guest/alumna Mallika Kaur and this NPR report.)
The UN Women report observes that the Republic of Korea -- where in the 1980s 114 boys were born for every 100 girls -- has reduced this disparity by investing in girls’ education and by promoting women’s employment. These initiatives have helped to reverse the perception that girls are a financial burden on the family.

Goal 5: Improve maternal health
Only 14 countries are on target to reduce maternal deaths by 75% by 2015. This is a shocking statistic, given that up to 70% of such fatalities are preventable through health services and family planning resources. (credit for photo of maternal health clinic in Afghanistan)
Over 300 million women around the world suffer longterm health consequences and disabilities stemming from pregnancy or childbirth complications. Reduced aid for family planning, rural isolation, user fees, and lack of female staff at health care centers are some barriers to accessing the services needed to combat this epidemic. Consider that once user fees were no longer required in Burundi, the number of women giving birth in hospitals jumped 61%.

Goal 6: Combat HIV/AIDS, malaria and other diseases
Women have borne the brunt of the AIDS epidemic disproportionately. Over half the 33.3 million people living with AIDS worldwide are women.
Women are particularly vulnerable to infection as a result of poverty, violence, and discriminatory customs.
Once infected, women are further victimized. In China, for example, twice as many women as men report having been physically harassed and threatened because of their HIV status. According to the report, the Chinese government has launched a widespread campaign to combat HIV stigmatization.

Goal 7: Ensure environmental sustainability
The report notes that, because women perform the majority of the world’s agricultural work and are heavily impacted by weather-related disasters, they suffer the effects of climate change disproportionately.
Yet, women are often excluded from environmental policy discussions. An analysis of 423 National Adaptation Programs of Action reveals that only 16% of such plans refer to women when discussing food security or water. Less than 20% mention women in the context of health.

Goal 8: Develop a global partnership for development
The good news is that overseas development assistance has risen over the past decade and, by 2015, will have reached $126 million per year.
The bad news is, programs targeting gender equality are not reaping the benefits.
Programs in which gender equality was a secondary (but significant) component accounted for less than 30% of funding from the Organization for Economic Cooperation and Development-Development Assistance Committee between 2007 and 2009.
In November and December of 2011, the fourth High Level Forum on Aid Effectiveness will be held in the Republic of Korea. The report recommends adopting concrete actions to achieve gender equality at that meeting.

Conclusion
When it comes to gender equality, much needs to be done with respect to reaching the Millennium Development Goals. As the report put it:

'With only four years left until the target date of 2015, ending gender-based injustices that create barriers to women’s and girls’ opportunities must be the centerpiece of further action.'

IntLawGrrls join other international law professors to weigh in on transnational environmental case

A group of international law professors has filed an amicus brief on behalf of the Ecuadorian defendants in Chevron v. Donzinger, which is currently before the U.S. Court of Appeals for the Second Circuit.

The case involves Chevron’s attempt to block a judgment handed down in Ecuador, which awarded indigenous Ecuadorians $18 billion in damages for the devastations associated with oil production in their traditional lands.
On March 7 of this year, Judge Lewis Kaplan of the U.S. District Court for the Southern District of New York issued a preliminary injunction that prevented the Ecuadorian plaintiffs from enforcing the judgment. In a remarkable step, the injunction barred the plaintiffs from enforcing the judgment (which incidentally had not yet been issued at the time the injunction was granted) in any jurisdiction in the world. The U.S. court thus asserted worldwide exclusive jurisdiction to determine whether an Ecuadorian judgment should be recognized and enforced.
The amicus brief on behalf of international law professors, ably led by Don Anton of the Australian National University College of Law, takes issue with this unprecedented and sweeping assertion of jurisdiction. IntLawGrrls Rebecca Bratspies, Naomi Roht-Arriaza, and Linda Malone were among the signatories. As my colleagues and I wrote:

The action of a single American trial judge, essentially ordering the preclusion, in pre-emptive fashion, of all courts in the world outside of Ecuador from independently deciding the issues of recognition and enforcement is an extraordinary breach of comity.

While not part of the amicus brief, which focuses only on international law issues and not on the underlying merits, the deep hypocrisy of Chevron’s actions is worth noting.
The case, which has lasted 18 years, was originally filed in New York (the home jurisdiction of Chevron’s predecessor in interest, Texaco). The only reason it wound up in Ecuador was that Chevron/Texaco argued vociferously that Ecuador, rather than New York, was the appropriate forum. In its court filings, Chevron touted the ability of the Ecuadorian courts to “provide a fair and alternative forum.”
Chevron ultimately persuaded the U.S. courts to dismiss the claim on forum non conveniens grounds. However, that dismissal was conditioned on Chevron's explicit written assurances that it would accept jurisdiction in Ecuador, and would satisfy any judgment rendered by an Ecuadorian court. Nevertheless, when it seemed clear that Chevron would lose in Ecuador, the oil company immediately ran back to New York and sought an injunction staying the Ecuadorian judgment.
A good synopsis of the case’s convoluted history can be found here.

Implications of Today’s Supreme Court Decision in AEP v. Connecticut for Climate Change Regulation

In an 8-0 decision authored by Justice Ginsburg (with Justice Sotomayor recusing herself), the U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” (photo credit)
The Court made clear that this displacement did not hinge on EPA deciding to regulate greenhouse gas emissions:

The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, federal courts would have no warrant to employ the federal common law of nuisance to upset the agency determination.
….
If the plaintiffs in this case are dissatisfied with the outcome of the EPA’s forthcoming rulemaking, their resource under federal law is to seek Court of Appeals review, and ultimately, to petition for certiorari in the Court.

While shutting down federal nuisance law actions (except, as Dan Farber has blogged, in the circumstance in which Congress votes to repeal EPA jurisdiction), the Court reinforced that climate change litigation can continue to play an important regulatory role. First, the opinion, before reaching the merits, states that 4 votes (without Justice Sotomayor weighing in) remain in support of Massachusetts v. EPA’s approach to standing and that “no other threshold obstacle bars review,” which indicates that they do not view the political question doctrine as a barrier. Second, the opinion highlights the appropriateness of regulatory actions under the Clean Air Act. Third, the opinion does not reach the question of whether a federal nuisance action would be allowed if Congress decided that EPA could no longer regulate greenhouse gas emissions or whether state law nuisance actions are preempted. The opinion thus limits federal common law as a “parallel track” but maintains future possibilities for courts to be involved in assessing federal climate change regulation and state law nuisance actions. It also leaves untouched the many actions, generally brought in state courts, challenging power plants (especially coal-fired ones) based on their greenhouse gas emissions.

This has been cross-posted on the SaltLaw Blog and Environmental Law Prof Blog.

Another Sad World Ocean Day

Viewed from space, the Earth is dominated by oceans. Indeed, oceans cover more than 70% of the surface of the planet. And the marine environment is by far the largest ecosystem on Earth, with many distinct and irreplicable sub-ecosystems. In terms of ecosystem services, habitat, and vulnerability to human-induced threats the marine environment is unrivaled. Yet, we know remarkably little about this immense, beautiful and vulnerable ecosystem.
The graph at right, from a 2010 article by Webb, et al., documenting our chronically under-informed state concerning the deep ocean, is particularly illustrative.
The reds and oranges on the graph shows where we have significant knowledge about ocean life, and the blues and yellows indicate regions of the ocean for which we have very little information. There are vast sections of the ocean, indeed, the overwhelming majority, for which we have little or no information on what lives there. (image credit)
As we've posted, in December 2008, the U.N. General Assembly designated this day, June 8, as “World Oceans Day” (resolution 63/111, paragraph 171). World Ocean Day is an opportunity not only to recognize the limited state of is our knowledge about the oceans, but to pause and take stock of what we do know about the current state of the world’s oceans. In his World Ocean Day message, U.N. Secretary General Ban Ki-moon proclaimed:

'World Oceans Day is an opportunity to reflect on the importance of oceans to humankind’s sustainable development. It is also a time to recognize the many severe challenges related to oceans.'

Taking stock of the state of the world’s oceans is a depressing task and each year the news seems to get worse. Some statistics:
► According to the National Oceanic and Atmospheric Administration, the worldwide ocean surface temperature this past April was 0.38°C (0.68°F) above the 20th century average of 16.0°C (60.9°F). It was the 11th-warmest April on record.
► Both the Atlantic and Pacific oceans have garbage patches, where, due to ocean currents known as gyres, millions of tons of plastic that has been dumped into the world’s oceans accumulates, killing seabirds, marine mammals and fish. (credit for photo of plastic-bag pollution)
► This past Sunday, the European Project on Ocean Acidification warned the Intergovernmental Panel on Climate Change of measurable changes that had already occurred in ocean chemistry and pH, with a marked fall in pH over the past few decades. This means that the world’s oceans are already acidifying, and the process is only expected to continue, jeopardizing marine food webs in the process.
► The world’s coral reefs are suffering a global bleaching event, possibly the worst ever recorded.
► The United Nations' Food and Agriculture Organization reports that 32% of the worlds fisheries are either overexploited or depleted, with the overwhelming majority of the rest fully exploited. That means there is no room for fishing to increase even as human population increases by more than a third, to over 9 billion by midcentury and 10 billion by 2100.
► In the Gulf of Mexico, unusual turtle and marine mammal mortalities are being attributed to the millions of gallons of oil released because of the 2010 BP oil spill (prior posts available here), and because of BP’s subsequent decision to dump massive quantities of toxic chemical dispersants.

Beset by warming, acidification, bleaching, overfishing, and plastic and other pollutants, the world’s oceans are in serious jeopardy. International and domestic laws seem powerless to reverse these trends and protect coral reefs, fish populations, and ecosystem integrity.

As if these existing threats were not enough, the world’s oceans are facing yet another threat -- contamination from radioactivity.

Earlier this year, as chronicled in posts available here, an earthquake and tsunami destroyed the Fukushima nuclear facility in Japan. In a desperate attempt to avoid a catastrophic meltdown, the Tokyo Electric Power Co., known as TEPCO, began pumping seawater into the facility.
Now, even as pumping of water into the damaged reactors continues unabated, TEPCO is struggling to cope with an additional problem -- tens of thousands of gallons of contaminated water. Somewhere between 10,000 and 15,000 gallons of that water has already been dumped back into the ocean, and an untold amount has reached the ocean through other means. (credit for map of Japan with Fukushima prefecture in red)
Already, Greenpeace has documented high levels of radioactive iodine in fish and waters more than 40 km from the damaged reactors. Whatever contamination has already occurred as a result of releases from the damaged nuclear facility might be about to get much worse.

The French company Areva is currently setting up treatment plants to decontaminate the radioactive water used to cool the devastated Fukushima nuclear facility. The plan is that the treated water will then be dumped back into the ocean.

Areva already operates a similar decontamination facility off the coast of Normandy. That French facility has been a hotbed of controversy, because of alleged harms from the same process Areva proposes to use in Japan. For decades, Greenpeace and Physicians for Social Responsibility have repeatedly alleged that the water released from this French facility still contains illegally high levels of radioactivity. Moreover, the treatments proposed at Fukushima stretch this technology beyond all past experience. Indeed, the best that Areva’s spokeswoman could offer was:

'Honestly it’s hard to say how it will work. We hope everything will be fine.'

Not exactly the ringing endorsement we might have hoped for on World Ocean Day.

Guest Blogger: Anastasia Telesetsky

It's IntLawGrrls' great pleasure to welcome Anastasia Telesetsky (right) as today's guest blogger.
An Associate Professor of Law at the University of Idaho College of Law in Moscow, Idaho, Anastasia teaches Conflicts of Law, Public International Law, International Environmental Law, and International Trade and Investment Law. She's published numerous articles in those areas.
She joined the Idaho law faculty in 2009. Before that, she'd worked for 8 years in public international law and environmental law in California, Washington, and abroad. During that time she helped to represent the Government of Ethiopia before the Ethiopia-Eritrea Claims Commission, on which IntLawGrrl Lucy Reed served as a Commissioner, at the Permanent Court of Arbitration. As a Bosch Fellow, Anastasia worked for the German Foreign Ministry on international food security issues. As a Fulbright Fellow and a Berkeley Human Rights Center fellow, she collaborated with communities in the Philippines and Papua New Guinea on environmental protection problems.
Anastasia holds a bachelor's degree in anthropology from Vanderbilt University and a master's degree in the same field from the University of California, Santa Barbara. She earned her J.D. at the University of California, Berkeley, and her LL.M. at the University of British Columbia.
In her guest post immediately below, Anastasia describes a recent roundtable on how to improve International Environmental Governance, and she welcomes further collaboration on this question.
Anastasia (prior IntLawGrrls post) dedicates her post to the American attorney and Presidential candidate Belva Lockwood (1830-1917), for reasons she described in a guest post further below.

Toward better environmental governance

(My thanks to IntLawGrrls for the opportunity to contribute both this guest post on international environmental law and the guest post below respecting my transnational foremother)

International Environmental Governance is the elixir of many international environmental law and transnational law scholars. Lawyers believe that if we take a pinch of policy and combine it with enforcement resources sufficient to ensure longterm compliance, then we will break through the cognitive dissonance of consumers, the bipartisanship of the democratic process, and the evasiveness of corporations.
Yet, as experience demonstrates, there is no magic formula. Rather, systems of environmental governance provide only partial solutions, because natural and social systems behave in non-linear ways.
The Natural Resource and Environmental Law Programs at my home institution, the University of Idaho College of Law, recently hosted a scholarly roundtable in Coeur D’Alene in order to discuss partial solutions. (credit for above left photo, on the Programs' website, of mountain lake) The roundtable, entitled Crossing Governance Gaps to Protect the Environment, produced interdisciplinary chemistry, with participants bringing expertise in political science, economics, international relations, international law and environmental law to the table. IntLawGrrls' very own Rebecca Bratspies (right) was among those who participated.
The roundtable covered four themes:
► The gap between the production of scientific research and its translation into legal policy;
► Gaps between international policymaking and domestic implementation;
► The ongoing debate about the role of non-state actors vis-à-vis state actors in international environmental policymaking; and
► A reflection on the other themes, asking in particular how the U.N. Environmental Programme should be reformed to make it a more effective institution for international environmental governance.
UNEP reform has been an issue of chronic concern. In 2009, German Chancellor Angela Merkel and French President Nicholas Sarkozy wrote to U.N. Secretary-General Ban Ki-Moon, stating that UN “environmental governance must be overhauled."
The roundtable generated interesting reflections on the political calls for UNEP reform. In the past decade, whenever UNEP and governance reform came up together in a conversation, there usually has been some discussion of the proposed creation of a World Environmental Organization, which would rival the World Trade Organization in influence. States, with the exception of Germany and France, have shown little political enthusiasm for this approach.
Roundtable participants Dan Bodansky (Arizona State) and Ben Cashore (Yale) cautioned that any reform requires careful diagnosis of what the problems are that a given institution is attempting to resolve. Introducing a World Environmental Organization, they said, would not resolve the problems at the core of today’s environmental degradation unless such an organization catalyzes social change.
Peter Haas (Massachusetts) suggested that UNEP has been a victim of its own success because it has already done more than was expected of it when it was formed during the Stockholm Convention. Meanwhile, Ken Abbott (Arizona State) stated that UNEP in its current form is already operating as a potent social orchestrator, by partnering with both nongovernmental organizations and corporations in order to create indirect governance strategies separate from States, such as the UNEP Financial Initiative. Cashore further suggested that perhaps the international system would benefit from a tripartite neutral institution that would include state representatives, corporate partners, and civil society partners.
I have one less revolutionary idea.
It has already shown limited promise in the context of the UNEP Regional Seas programs, which have looked at specific environmental problems in limited geographical regions.
My proposal is for UNEP to adopt the same model of decisionmaking as the World Health Organization; that is, to establish numerous autonomous regional committees that define environmental problems and set policy priorities under regional directors.
UNEP already has existing regional offices in Africa (Addis Ababa), Asia and the Pacific (Beijing), Europe (Brussels, Moscow, and Vienna), Latin America and the Caribbean (Brazil), North America (New York), and West Asia (Cairo). These offices could be reconfigured as the headquarters of regional environmental committees in order both to reflect existing geopolitical cooperative alliances and to set specific regional policies for the members of the committee. Additional regional offices could be opened to represent the specific geographical alliances, such as South Asia or Southeast Asia.
Each regional committee would focus on those issues that are most pressing for its region and for which the regional committee members are most likely to be able to gain national traction when members seek domestic implementation of internationally negotiated policies.
While there could be danger in creating multiple regional policies that are not necessarily harmonized around global understandings of science, there is also the possibility of regionalization generating immediate policy responses from like-minded and potentially similarly governed States. Under regionalization, some States may be willing to make environmental concessions with regional allies that they would be unwilling to make with global political or economic rivals. UNEP regionalization could promote the powers of minilateralism.
If you are working in any of these areas and would like to share papers with a multidisciplinary group of scholars working on them, please contact me at atelesetsky@uidaho.edu, and I will add you to our distribution list.

Belva Lockwood, foremother

(Anastasia Telesetsky, contributor of today's guest post above, offers this transnational foremother dedication to a woman about whom we've previously posted here and here)

I would like to salute Belva Lockwood, a woman of modest means who through her persistence made a place for women in U.S. law.
At the age of 40, she went to law school. But when she graduated three years later she was refused a diploma, until she petitioned President Ulysses Grant to have her law degree awarded.
After she had tirelessly lobbied for legislation to open the U.S. Supreme Court bar to qualified women lawyers, Lockwood became the first woman admitted to the bar of the U.S. Supreme Court. When she succeeded, she became the first woman to argue before the Court, in Kaiser v. Stickney (1880).
Not content with making waves in the judiciary, she was also the first woman to run a full-fledged campaign to become the U.S. President. She ran in 1884 and again in 1888, even though she couldn't vote. (book cover credit)
Lockwood was also a real proponent of girl's education. As someone who has been bestowed the gift of education, I am grateful to her for her persistence. I admire her tenacity and can-do attitude in the face of social adversity. She is reported to have once said,

'The glory of each generation is to make its own precedents.'

I hope one precedent that this generation will leave for the following generations is a true environmental ethic. While we have our work cut out for us, Lockwood has proven to us the possibilities of applying a little bit of pluckiness to achieve previously unheard-of goals.

On April 26

On this day in ...
... 1986 (25 years ago today), an explosion and fire at a power plant in Ukraine, then part of the Soviet Union, touched off the Chernobyl disaster. (photo credit) It would be 2 days before officials acknowledged the accident, a nd then only after Scandinavian countries detected "abnormally high radioactivity" in their atmosphere. "The battle to contain the contamination and avert a greater catastrophe ultimately involved over 500,000 workers and cost an estimated 18 billion rubles, crippling the Soviet economy." Nuclear crises in the wake of the earthquake in Japan last month -- a crisis provisionally raised to Level 7, the same as Chernobyl -- have prompted reexaminations of Chernobyl, previously described as "the world's worst nuclear accident."

(Prior April 26 posts are here, here, here, and here.)

Guest Blogger: Linda A. Malone

It's IntLawGrrls' great pleasure to welcome Linda A. Malone (left) as today's guest blogger.
Linda, as we've posted in the past, is the Marshall-Wythe Foundation Professor of Law and Director of the Human Security Law Program at the College of William and Mary School of Law. She's been a Visiting Professor at the law schools of the University of Virginia, Washington and Lee, Duke University, University of Arizona, and University of Denver, and has taught law at the University of Illinois and University of Arkansas, Fayetteville.
An original representative on the Environmental Commission of the World Conservation Union (IUCN), Linda is the author of numerous articles and books in the areas of international law, human rights, and environmental law. A recent example is the co-authored Defending the Environment: Civil Society Strategies to Enforce International Environmental Law (2006). Linda also was the Associate Editor of the Yearbook of International Environmental Law, has served on the Advisory Council to the National Enforcement Training Institute of the U.S. Environmental Protection Agency, and serves on the Board of Directors for the International Society for the Reform of Criminal Law, among many other professional affiliations. In her guest post below, she examines -- against the backdrop of the principle of responsibility to protect -- international responses to the conflict in Libya and to the tsunami in Japan.
Linda was a delegate to the U.N. Conference on the Environment and Development in Rio in 1992, co-counsel to Bosnia-Herzegovina in its genocide case against Serbia and Montenegro before the International Court of Justice, co-counsel to Paraguay in its challenge to the death penalty in Paraguay v. Virginia, and an amicus co-counsel in the U.S. Supreme Court in Padilla v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).
In 2009-2010, Linda held the Fulbright Distinguished Chair in International Environmental Law at the University of Turin, Italy, and in 1998, she received the Fulbright/OSCE Regional Research Award for her work on women's and children's rights in Eastern Europe. She's served on the Special Subcommittee on the Rights of the Child for the American Bar Association, and she received the Millennium Award of the Virginia Women's Bar Association in 2000 for her contributions to women's rights.
Linda earned her B.A. from Vassar; her J.D. from Duke, where she was Research and Managing Editor of the Duke Law Journal; and her LL.M. from the University of Illinois. She clerked for Judge Wilbur F. Pell of the U.S. Court of Appeals for the Seventh Circuit, and practiced law in Chicago and Atlanta before joining the faculty at William and Mary.

Heartfelt welcome!

Separating natural & environmental disasters

The twin natural disasters that struck Japan this month, earthquake and tsunami, left a trail of devastation in their path. Entire villages were lost. The death toll currently stands at more than 8,000 but is expected to rise much higher (more than 13,000 are missing). (Prior posts here and here.)
Even as survivors struggle for shelter, warmth and food, the natural disasters are being rapidly overshadowed by the unfolding disaster at Japan's Fukushima Daiichi Nuclear Power Station. (right) (photo credit)

The key difference is that the nuclear disaster didn’t have to happen.
The earthquake, the tsunami, and the nuclear meltdown are all wrapped up together right now as one big human tragedy. But it is important not to blur the lines between risks that are inherent to living on planet earth, and risks that we have created for ourselves. Natural disasters like earthquakes, hurricanes or tsunamis are woven into the very fabric of the earth’s geological systems. There is no way to avoid them, though obviously we can take steps to minimize their impacts.
Anger after Hurricane Katrina was not directed at the hurricane for forming and coming ashore, but at the federal, state and local governments for failing to prepare and respond adequately, and at corporate priorities that devastated Louisiana’s (protective) wetlands in order to facilitate shipping. (left) (photo credit) But for those human decisions—to channel the Mississippi in a fashion that prevented soil accretion; to cut channels through the marshes; to underinvest in the poorer parts of New Orleans; to neglect adequate evacuation planning—the natural disaster might never have become a human catastrophe.
Environmental disasters, by contrast, are catastrophes that flow directly from human-created risks.

In Japan, Reactor #3 may already be releasing MOX (mixed oxide), and all six reactors at the site are compromised, with at least three in partial meltdown. One of the most surprising aspects of this disaster has been our collective inability to get accurate information about the quantity of radiation that has been released, and how dangerous it might be. Turns out the radiation detectors were dependent on the same sources of power as the reactor cooling system, making them unavailable just when they matter most. While it may be unclear how much radiation has been released, both the Japanese government and Tokyo Electric have acknowledged that the released radiation is potentially fatal.
How does this disaster fit with industry assurances that nuclear power is safe and clean? It turns out the roots of this crisis date back to a 1973 decision by the Atomic Energy Commission (predecessor agency to the Nuclear Regulatory Commission) that

'the environmental effects of the uranium fuel cycle have been shown to be relatively insignificant.'

In 1978, the U.S. Supreme Court upheld this decision—shutting the door to rigorous assessment of the environmental threats from spent nuclear fuel. At issue in the case, Vermont Yankee v. NRDC, was the AEC’s fuel cycle rule—which had concluded that the environmental effects of spent fuel rods would be so negligible that they could safely be disregarded. At a 1973 hearing on this fuel cycle rule, environmental groups raised the question of what would happen if a disaster caused the water cooling system for a spent rod storage facility to fail. Speaking for the agency, Dr. Frank Pittman responded that it would take a week for the cooling water to boil away, allowing time for “various corrective actions” to be taken. These corrective actions remained conveniently unspecified.
Now we see why.
In the wake of the earthquake and tsunami, all six of the Fukushima Daiichi reactors lost power, and the backup generators failed. Thus these reactors were left in exactly the plight environmental groups predicted in the 1973 hearing. With the risks of catastrophic meltdown looming, Tokyo Electric found itself with neither the time nor the capacity to implement “various corrective actions.”
In desperation, the Japanese military resorted to dropping seawater via helicopter, and Japanese police re-purposed water cannons from riot control to reactor cooling.
These last-ditch measures harken back to BP’s similarly flailing attempts to cap the gushing Macondo well. (right) The BP oil spill, which killed 11 workers and created one of the worst environmental disasters in United States history, flowed from a lethal combination of corporate greed, operational hubris and lax government oversight. (photo credit) I suspect we’ll find the same to be true in Japan. In both disasters, the economic, human and environmental toll is still being tallied, but will be immense.
Japanese regulators will inevitably face the same question American regulators faced after the BP oil spill: Why are we finding out that there is no Plan B only after disaster has struck?
It is foreseeable that a nuclear plant in an earthquake zone might lose power, and that its auxiliary backup generators might fail, just as it was foreseeable that a blowout protector might fail and thus not stem a gushing oil leak. In fact, not only were these disasters foreseeable, they were actually foreseen. It has been three decades since scientists inside the Nuclear Regulatory Commission first warned of design flaws in the Mark I reactors used in Fukushima. And, the scenario unfolding there is precisely the situation that Dr Pittman so blithely dismissed in 1973 -- that of a catastrophic accident causing the kind of containment system used at the Fukushima Daiichi facility to fail, subjecting everything and everyone nearby to dangerously high radiation. Similarly, almost a decade ago the Coast Guard began warning (p. 22-23) that oil companies were not developing adequate clean-up technology to keep pace with their newly acquired deep drilling capacities.
Yet, those warnings fell on deaf ears.
In both situations, regulators charged with protecting the public and the environment willingly accepted industry assurances not only that disaster would not happen, but also that it could be easily managed if it did. The corporations seeking regulatory approval made safety claims they could not back up, and the regulators too readily went along. This corporate equivalent of “don’t worry your pretty head about it” infects virtually every industry—leading to a dearth of worst case scenario planning. The local communities and the environment bear the brunt when things go disastrously awry.
It is the self-inflicted nature of the wounds that makes environmental disasters particularly galling.
► Yes, it was BP that cut corners in drilling the Macondo well.
► Yes, it is Tokyo Power that stored more than 11,000 spent rod assemblies at the Fukushima Daiichi site. (Incidentally, there are 23 boiling water nuclear reactors in the United States that share the same Mark I containment system design as the crippled Japanese reactors.)
► And yes, the corporate actors in charge of those facilities made these choices with an eye toward profit.
► But, to the extent that we demand cheap and reliable energy, we are all complicit.
The line of causation between the glittering lights of the Ginza and the unfolding Fukushima Daiichi disaster is fairly direct, as is the connection between the millions of U.S. automobile owners and the BP oil spill. In a very real sense, our insatiable thirst for more energy to power our growing collection of televisions, air-conditioners and electric toothbrushes is also responsible.
That means that fixing the problem has to proceed on both fronts at once.
► Clearly government agencies need to be re-invigorated and re-inspired. We can no longer allow politicians to dismantle our regulatory agencies under the false pretense that private actors, pursuing private ends will voluntarily safeguard the public interest. We must adequately fund oversight and enforcement of existing safety and environmental laws, and improve them where they are lacking. We must also stop the revolving door that corrupts agency values and leads regulators to confuse industry interests with the interests of their true client—the public. A hollowed out government cannot ensure public safety.
► At the same time, we also need to learn to slake our energy thirst, and thereby remove the political justification (and economic incentive) for these risky gambles.

(Cross-posted at CPRBlog)

Japan and the bugaboo of nuclear waste management

Poor Japan. Surely suffering a 9.0 earthquake and a devastating tsunami is disaster enough for one country to bear. At least 5,000 people are dead, and hundreds of thousands more are displaced. The scope and scale of the natural disaster is overwhelming. Yet, these twin natural disasters are rapidly being overshadowed (at least in the news coverage targeting those of us half a world away) by the unfolding nuclear disaster. (prior post)
A meltdown that was supposed to be “incredible” is happening before our eyes in prime time. A series of explosions and fires have created an industrial emergency of the first order. Units 1, 2 and 3 are in partial meltdown, while the spent fuel rods stored at Unit 4 exposed to the environment and releasing radiation. Worst of all, Unit 3 may be releasing MOX (mixed oxides). Radioactive cesium and iodine have been detected outside the Fukushima Daiichi The best case scenario at this point would be if authorities manage to pump, spray or airdrop enough seawater to cool the fuel rods, easing the crisis. In that case, the radioactivity released by this disaster would be limited to the unknown quantity already spewed into the air by explosions or controlled venting.
Yet, that best-case scenario is still pretty grim. The long-term effects of the radiation that has already been released are unclear. So far prevailing winds are directing the radiation plume toward the open ocean. That is surely good news for Tokyo’s 34 million inhabitants. But, the fact that no major human population centers are being directly affected (right now) does not mean that the radiation has gone “away.” There is no such place as “away.” The radiation is instead going into the sea where it will be yet another factor impacting an already stressed ocean ecosystem. We don’t know much about the risks to oceans and fisheries from radioactive fallout, or for that matter from more routine nuclear waste disposal.
Radioactivity will surely enter the ocean food chain, with unclear results. Indeed, Ireland and the UK have been locked in a bitter, decades-long legal struggle over the environmental effects of MOX contamination in ocean waters. Researchers have documented decreased wildlifepopulations and diversity, as well as increased animal deformities around Chernobyl. (the Fukushima Daiichi situation has not released anywhere near the radiation of Chernobyl, but it is not over yet.)
Shockingly, the environmental consequences associated with this kind of disaster were completely disregarded when regulators assessed the risks and benefits of nuclear power. Indeed, the key architect of the United States fuel cycle rule considered potential environmental effects to be a “bugaboo” based on unjustified fears. Based on his testimony, United States regulators dismissed negative environmental effects associated with radioactive releases from stored spent fuel rods as incredible. That decision, which focused on the Vermont Yankee nuclear facility approved the kind of boiling water reactor with above-ground spent rod storage used at the Fukushima Daiichi facility. So, even though the vulnerability of this kind of nuclear plant has been clear for decades, there are at least 32 such facilities continuing to operate around the world.