Environmental Law Commons^™

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Vanderbilt Journal of Transnational Law

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

Ecolabeling In The Multinational Mining Industry: A Method Toward Environmental Sustainability, Regina Raze J.D. Candidate

Vanderbilt Journal of Transnational Law

The international mining industry's environmental impact is not new. However, with the rise of international scrutiny on climate change and global warming, what the industry can do to lessen its impact is changing. Consumers are demanding stronger commitments to the environment from producers, and producers are therefore requiring stronger commitments from their suppliers. One such commitment the extractive industry can adhere to is implementing an ecolabeling regime for open pit mines mining critical minerals for consumer products. Ecolabels signal to customers that the environment is a priority for companies. However, with an ecolabel comes trade implications and concerns about accuracy. …

A Regulatory Scheme For The Dawn Of Space Tourism, Molly M. Mccue

Vanderbilt Journal of Transnational Law

Today, companies like Blue Origin and Virgin Galactic have successfully launched paying customers into space, forging the future of the space tourism industry. While a growing space tourism industry promotes scientific advancement and opens an activity once reserved for trained astronauts to the public, the industry generates new issues and reveals the vulnerabilities of international space law. This Note explores the history of commercial spaceflight and the international agreements that comprise the current legal regime. It argues that space tourism presents a need for a new international agreement to address three vulnerabilities in the current international regime: environmental protections, protections …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

Climate Change Refugees In The Time Of Sinking Islands, Jane Steffens

Vanderbilt Journal of Transnational Law

While environmental migration is not a new phenomenon, the international community has been slow to react to a wildly increasing number of people displaced by climate-related factors. With the current scenario of sinking islands, rapid urbanization, and drought, the international community seems to be on the precipice of a massive humanitarian catastrophe. Even so, lawmakers appear hesitant to fill in the gaps of existing international law, leaving an entire category of people vulnerable and unprotected against the effects of climate change. Private climate-governance initiatives can achieve large-scale, prompt, and efficient solutions to climate-induced migration. While private governance initiatives lack the …

Climate Adaptation Law: Governing Multi-Level Public Goods Across Borders, Maria L. Banda

Vanderbilt Journal of Transnational Law

The increasingly severe and irreversible effects of climate change around the world make adaptation to a changing climate an immediate and urgent global priority, as the Paris Agreement on Climate Change acknowledged. Yet adaptation investment--to make communities and ecosystems more resilient to climate change--has been slow to materialize. Closing the finance gap and rising to the challenge of adaptation requires two conceptual shifts in how we think about adaptation law and governance. The first is that optimal adaptation is a public good, much like a healthy climate or safe streets. Everyone is better off in a resilient community that can …

Private Governance Can Increase Shipping's Efficiency And Reduce Its Impacts, Daniel J. Metzger

Vanderbilt Journal of Transnational Law

The shipping industry is a huge component of the world economy, and although it is often described as an efficient mode of transport, it still contributes as much carbon dioxide to the atmosphere as a major industrialized nation. Efficiency technologies and practices are available that would significantly lessen shipping's environmental impact, but "amazing loophole[s]" in international environmental law and a set of market failures have prevented them from being widely adopted. These problems have been studied before, but the public regulatory proposals being discussed run into steep, if not insurmountable obstacles. This Note argues that shipping inefficiency can be better …

Beyond Known Worlds: Climate Change Governance By Arbitral Tribunals?, Valentina Vadi

Vanderbilt Journal of Transnational Law

Can economic development and the fight against climate change be integrated successfully? What role, if any, does international investment law play in global climate governance? Can foreign direct investments (FDI) be tools in the struggle against climate change? What types of claims have foreign investors brought with regard to climate change--related regulatory measures before investment treaty arbitral tribunals? This Article examines the specific question as to whether foreign direct investments can mitigate and/or aggravate climate change. The interplay between climate change and foreign direct investments is largely underexplored and in need of systematization. To map this nexus, this Article proceeds …

Climate Change, Forests, And International Law: Redd's Descent Into Irrelevance, Annecoos Wiersema

Vanderbilt Journal of Transnational Law

Forestry activities account for over 17 percent of human-caused greenhouse gas emissions. Since 2005, parties to the United Nations Framework Convention on Climate Change have been negotiating a mechanism known as REDD--Reducing Emissions from Deforestation and Degradation--to provide an incentive for developing countries to reduce carbon emissions and limit deforestation at the same time. When REDD was first proposed, many commentators argued this mechanism would not only mitigate climate change but also provide biodiversity and forests with the hard international law regime that had so far been missing. These commentators appeared to hope REDD would develop into this kind of …

Private Certification Versus Public Certification In The International Environmental Arena, Patricia A. Moye

Vanderbilt Journal of Transnational Law

In recent decades, the world's various fisheries have seen a number of problems, primarily depletion of fish stocks due to overfishing. While the UN has created some soft law, including sustainable fishing standards, to deal with the problem of fisheries depletion, no binding international laws currently exist. Several entities have decided to deal with the problem on their own, through eco-labeling programs. The Marine Stewardship Council, a private entity not directly affiliated with the government of any country, has created such a program. In addition, some governments have created similar programs, including Japan through its Marine Eco-Label Japan program. While …

Arctic Warming: Environmental, Human, And Security Implications, Mary B. West

Vanderbilt Journal of Transnational Law

Arctic warming has myriad implications for the Arctic environment, residents, and nations. Although definitive predictions are difficult, without question the scope and rapidity of change will test the adaptive capacities of the Arctic environment as well as its residents. Warming is affecting marine ecosystems and marine life, terrestrial ecosystems, and the animals and people who depend on them. Human impacts include effects on access to food and resources; health and well being; and community cohesion, traditions, and culture. Increased shipping and resource activity create the need for additional maritime presence and security; better environmental and safety regulations; peaceful resolution of …

The International Law Of Environmental Warfare: Active And Passive Damage During Armed Conflict, Eric T. Jensen

Vanderbilt Journal of Transnational Law

One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international …

Jonathan I. Charney: An Appreciation, W. Michael Reisman

Vanderbilt Journal of Transnational Law

Jonathan Charney was one of the leading international legal scholars of his generation. He was the authority on the Law of the Sea and his magisterial four-volume work on international maritime boundaries quickly became the "vade mecum" for anyone involved in virtually any aspect of the Law of the Sea. But Law of the Sea was only a part of his awesome oeuvre. He wrote authoritatively on the use of force and humanitarian intervention; self-determination; customary international law and, in particular, soft law; international environmental law, international tribunals and jurisdiction, technology, and constitutional law. All of his work was marked …

Issues In The Measurement Of Biological Diversity, Andrew R. Solow, James M. Broadus

Vanderbilt Journal of Transnational Law

There are many national and international efforts to conserve biological diversity. However, since conservation resources are scarce, they must be used as effectively as possible. This Article examines recent developments in the definition and measurement of biological diversity . The authors explore the advantages and disadvantages of various measures of biological diversity, and the sensitivity of the optimal allocation of conservation resources to alternative measures. This Article demonstrates the importance of the choice of a biological diversity measure while simultaneously indicating that this choice is only one part of the ultimate goal of conservation.

Hazardous Waste Exportation: The Global Manifestation Of Environmental Racism, Hugh J. Marbury

Vanderbilt Journal of Transnational Law

During the last decade, the United Nations and other international organizations have been struggling with the issue of hazardous waste exportation to developing countries. At the same time, the United States has been grappling with environmental racism. However, critics of both hazardous waste exportation and environmental racism have overlooked their similarities, namely, that hazardous waste exportation and environmental racism place a disproportionate burden on the same classes of people, the poor and minorities. The exportation of hazardous waste to developing countries is essentially environmental racism on an international scale.

This Note briefly explains the history and economic motivations behind hazardous …

Biodiversity: Opportunities And Obligations, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

This issue of the Vanderbilt Journal of Transnational Law is devoted to the Symposium on Biological Diversity that was convened by the Journal at the Vanderbilt University School of Law on January 20-21, 1995. The focus of the Symposium was the United Nations Convention on Biological Diversity. Biological diversity is a relatively new term in international law and relations. The Biological Diversity Convention was one of the products of the United Nations Conference on Environment and Development (UNCED) that was held in Rio de Janeiro, Brazil in June of 1992. Since the Convention was a product of UNCED, its substance …

Biodiversity In The Marine Environment: Resource Implications For The Law Of The Sea, Christopher C. Joyner

Vanderbilt Journal of Transnational Law

Professor Joyner begins by explaining what biodiversity is and how it is currently being threatened. He then describes the existing international prescriptions that relate to the preservation of biodiversity, including the Convention on Biodiversity, the Convention on the Law of the Sea, the Convention on the Prevention of Marine Pollution by Dumping and Other Matter, and the International Convention for the Prevention of Pollution from Ships. Professor Joyner examines how these prescriptions protect or fail to protect biodiversity in the marine environment, both independently and in conjunction with related international environmental law. Finally, he assesses how international organizations, regional protection …

Responsibility For Biological Diversity Conservation Under International Law, Catherine Tinker

Vanderbilt Journal of Transnational Law

Professor Tinker begins with a general discussion of biodiversity law within the context of existing international environmental issues and traditional international lawmaking. The article analyzes the legal issues that attend the fulfillment of the objectives of the Biodiversity Convention. The article examines the work of the International Law Commission on state responsibility and liability for environmental harm. The article then explores the precautionary principle and argues that it should be more aggressively applied in order to fulfill the mandate of the Biodiversity Convention.

International Law And The Protection Of Biological Diversity, Daniel M. Bodansky

Vanderbilt Journal of Transnational Law

This article provides a general overview of international environmental law and biodiversity. First, the article argues that biodiversity is an international issue because international cooperation is necessary to implement national preservation policies effectively and because the benefits of biodiversity accrue in part to the international community. Second, the article discusses existing international law relevant to biodiversity, including wildlife and habitat protection treaties, the 1992 Convention on Biological Diversity, and general principles of international environmental law such as the precautionary principle, the principle of intergenerational equity, and the principle of differentiated responsibilities. Finally, the article recommends that the international community use …

International Environmental Bankruptcy: An Overview Of Environmental Bankruptcy Law, Including A State's Claims Against The Multinational Polluter, Rick M. Reznicsek

Vanderbilt Journal of Transnational Law

This Note focuses on current environmental bankruptcy law in the United States. It analyzes the claims of a state against a corporate polluter when the corporation discharges a toxic substance in violation of the state's environmental laws, refuses to clean up the waste, and then files bankruptcy in lieu of paying for the cleanup.

This Note analyzes the court decisions subsequent to the United States Supreme Court opinions in Ohio v. Kovacs and Midlantic National Bank v. New Jersey Department of Environmental Protection to evaluate the current status of United States bankruptcy law on the issues of the automatic stay; …

Exploring The Last Frontiers For Mineral Resources: A Comparison Of International Law Regarding The Deep Seabed, Outer Space, And Antarctica, Barbara E. Heim

Vanderbilt Journal of Transnational Law

The nations of the world have begun to tap three resource areas--the deep seabed, outer space, and Antarctica. These areas are unique insofar as no nation can claim them exclusively as its own. As a result, these three areas raise unique international questions. Not only are they largely undisturbed, but these areas are also the testing ground for recently developed international treaties that attempt to usher in a new era of international cooperation. This Note examines both the exploration and exploitation of mineral resources in the deep seabed, outer space, and Antarctica. The physical nature of each area, the resources …

Dispute Settlement In International Environmental Issues: The Model Provided By The 1982 Convention On The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

This Essay discusses the merits of the dispute settlement provisions found in the 1982 United Nations Convention on the Law of the Sea, and calls for recognition and utilization of the provisions in all manner of disputes arising within the international legal community. Professor Kindt notes that despite the fact that the Convention's dispute settlement provisions represent the first time all major interest blocs of states have agreed upon a standard set of provisions for dispute settlement, the provisions have not received the attention they deserve. After analyzing the reasons for this lack of consideration, he urges that the dispute …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Law of the Sea: U.S. Policy Dilemma Edited by Bernard H. Oxman, David D. Caron, and Charles L. Buderi San Francisco: ICS Press, 1983. Pp. x, 184. $21.95.

The Fish Feud By David L. Vander Zwaag Lexington, Massachusetts: Lexington Books, 1983. Pp. xiii, 135. $21.95.

Negotiating Foreign Investments: A Manual for the Third World Edited by Robert Hellawell and Don Wallace, Jr. Washington, D.C.: International Law Institute, 1982. $95.00.

Political Rights for European Citizens By Guido Van DenBerghe United Kingdom: Gower Publishing Company, 1982. Pp.xii, 235. $38.00.

The International Law of Pollution By Allen L. Springer Westport, Connecticut: Quorum Books, …

Ocean Thermal Energy Conversion: The Codification Of A Potential Technology, Maureen O`C. Walker, Murray A. Bloom

Vanderbilt Journal of Transnational Law

Rapid technological advancement has been the hallmark of post-industrial societies for more than a quarter of a century. This progress is forever disrupting our established legal systems. Nowhere is this tension more evident than in the discoveries of the developing energy industry. An exception to this process is the infant industry of ocean thermal energy conversion (OTEC). The United States Congress recently enacted legislation establishing the legal framework for the OTEC process, which has not yet been proven on a commercial scale.

OTEC is a form of solar energy that takes advantage of the vertical temperature differentials in those regions …

The Role Of Unilateral State Action In Preventing International Environmental Injury, Richard B. Bilder

Vanderbilt Journal of Transnational Law

This discussion suggests that unilateral state action to prevent international environmental injury is likely to play an important and continuing role in efforts to deal with international environmental problems. It also suggests the futility of attempting to characterize unilateral action as inherently either desirable or undesirable. While multilateral actions seem generally preferable to unilateral action, effective multilateral arrangement in many cases may not be practically attainable. Unilateral action may be the only feasible alternative to inaction. Under these circumstances, a respectable argument can be made for the propriety of unilateral action on at least an interim basis pending achievement of …

Footnote To The Nuclear Test Cases: Abuse Of Right--A Blind Alley For Environmentalists, Jerome B. Elkind

Vanderbilt Journal of Transnational Law

In a recent article entitled "French Nuclear Tests and Article 41: Another Blow to the Authority of the Court," the author questioned the approach of the learned Judges of the International Court of Justice to article 41 of the Court's Statute. The title of that article was intended to deplore the recent tendency of States (most particularly France, but also Iceland) who are parties to the Statute of the International Court of Justice to arrogate to themselves the right to determine whether the Court has jurisdiction...

The judgment of December 20, 1974 is but one more example of the extremes …

Recent Developments--Recent Decisions, Philip B. Barr, Jr., Michael Stukenberg

Vanderbilt Journal of Transnational Law

All nations recognize the enormous problem of marine pollution. The sources of marine pollution are definable, and there are methods by which these sources may be restricted. Virtually all mankind would prefer less pollution to more. Prevention, however, becomes less attractive in light of its costs, which assume both political and economic characteristics. Varying political and economic climates coupled with problems of sovereignty and national self-interest render agreement on the imposition of standards difficult. This Recent Development will chart past and present efforts at the preservation of the marine environment, consider the issues confronting the United Nations Third Conference on …

Artificial Islands Constructed On United States Continental Shelf Denied Status Of Independent Sovereignty, Journal Staff

Vanderbilt Journal of Transnational Law

The United States brought injunction and trespass claims in the federal district court against three private persons to prevent the unauthorized construction of artificial islands atop several submerged coral reefs located about four and one-half miles off the southeast coast of Florida. These reefs were composed of the skeletal remains of coral organisms and lay at a depth of 600 feet. The reefs continued to grow laterally, but had reached their maximum height and were completely submerged at all times except at low tide when their highest projections were momentarily visible. The reef area, which harbored countless varieties of marine …