Law Commons^™

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

All Faculty Publications

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

Research Priorities For Climate Litigation, Jessica A. Wentz, Delta Merner, Benjamin Franta, Alessandra Lehmen, Peter C. Frumhoff

Sabin Center for Climate Change Law

This article characterizes key research gaps and opportunities for scientists across disciplines to do work that informs the rapidly growing number of climate lawsuits worldwide. It focuses on research that can be used to inform legal decisions about responsibility for greenhouse gas emissions and climate damages. Relevant lawsuits include claims filed against government and corporate defendants alleging that they have violated environmental, human rights, constitutional, tort, and consumer protection laws due to their contributions to climate change and failures to control emissions. Constructive attention has recently been given to the important role of attribution science in informing some of these …

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

Inclusion Of Incentive And Punitive Measures In Multilateral Environmental Agreement: A Suggestion On How The United Nations Framework Convention On Climate Change Can Be Utilized To Influence The Reduction Of Gas Flaring In The Oil And Gas Exploration Fields Of Nigeria, Temiloluwa Elijah Olanrewaju

Dissertations & Theses

Gas flaring is categorized as one of the important contributors to greenhouse gases, which increases the risk of global warming and climate change. The overdependence of the modern economy and most industrial technologies on fossil fuels has created a situation in countries where fossil fuels are exploited. The governments rely majorly on the revenue from exporting oil. The IOCs that are engaged in the mining of oil and gas have been able to influence policy and law enforcement on gas flaring to such an extent that the National laws are not enforced, or the stipulated fines are abysmally low that …

Intended Injury: Transferred Intent And Reliance In Climate Change Fraud, Wes Henricksen

Faculty Scholarship

No abstract provided.

America's New Covenant With Hong Kong: The Hong Kong Human Rights And Democracy Act Of 2019, Jason Buhi

Faculty Scholarship

No abstract provided.

Irena At 10: Post Paris Transitions And Energy Diplomacy Beyond Opec, The Energy Charter Treaty, And The Coronavirus, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Are Transboundary Fisheries Management Arrangements In The Northwest Atlantic And North Pacific Seaworthy In A Changing Ocean?, Olga Koubrak, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Climate change is affecting physical and biological components and processes of marine ecosystems in many ways. Resulting changes in abundance and distribution of commercially valuable species are anticipated to create or exacerbate challenges for fisheries management across national boundaries by raising questions around catch allocation, membership in the management organizations, and forms of cooperation between the organizations. In this paper we assess eight transboundary fisheries arrangements in the Northwest Atlantic and North Pacific on their preparedness to respond to climate-change driven changes. For each arrangement a three-part analysis is provided. A general introduction to fisheries management responsibilities, including species and …

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

International Environmental Law And The Global South Edited By Shawket Alam, Sumudu Atapattu, Carmen G. Gonzalez, And Jona Razzaque, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Business, Human Rights And The Iba Climate Justice Report, Sara Seck, Michael Slattery

Articles, Book Chapters, & Popular Press

The 2014 Climate Justice Report by the International Bar Association (IBA) makes many recommendations designed to contribute to the fight against climate change. One important step forward is its explicit recognition of the responsibility of business to respect human rights affected by climate change. This commentary explores the extent to which the IBA’s approach to this issue aligns with the business responsibility to respect human rights as described in the 2011 United Nations Guiding Principles on Business and Human Rights. The commentary also considers other international standards that incorporate business responsibilities for human rights in order to determine whether sufficient …

Persuasion Treaties, Melinda (M.J.) Durkee

Scholarship@WashULaw

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, …

Healthy Planet, Healthy People: Integrating Global Health Into The International Response To Climate Change, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

The potentially groundbreaking negotiations currently underway on the international response to climate change and national implementation of commitments under the United Nations Framework Convention on Climate Change (UNFCCC) include a number of hotly contested issues: (1) what degree of climate change is acceptable as a basis for emissions targets, (2) to what extent and in what ways climate change mitigation should incorporate emissions reductions or increased sinks for developing countries, (3) whether the legal regime governing mitigation can take advantage of the huge mitigation potential of changed practices in the land use and agricultural sectors, (4) how adaptation should be …

Targets And Timetables: Good Policy But Bad Politics?, Daniel M. Bodansky

Scholarly Works

From a policy perspective, a climate architecture based on economy-wide, binding emissions targets, combined with emissions trading, has many virtues. But even such an architecture represents good climate policy, it is far more questionable whether it represents good climate politics -- at least in the near-term, for the upcoming "post-2012" negotiations. Given the wide range of differences in national perspectives and preferences regarding climate change, a more flexible, bottom-up approach may be needed, which builds on the efforts that are already beginning to emerge, by allowing different countries to assume different types of international commitments – not only absolute targets, …

International Law's Lessons For The Law Of The Lakes, Joseph W. Dellapenna

Working Paper Series

The eight Governors of the Great Lakes States signed a proposed new compact for the Great Lakes and St. Lawrence basin on December 13, 2005, and they joined with the Premiers of Ontario and Québec in a parallel agreement on the same topic on the same day. Neither document is legally binding—the proposed new compact because it has not yet been ratified by any state nor consented to by Congress; the parallel agreement because it is not intended to be legally binding. Both documents are designed to preclude the export of water from the Great Lakes-St. Lawrence basin apart from …

Climate Change As A Global Challenge, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Litigating Canada-U.S. Transboundary Harm: International Environmental Lawmaking And The Threat Of Extraterritorial Reciprocity, Austen L. Parrish, Shi-Ling Hsu

Articles by Maurer Faculty

This Article joins a spirited debate ongoing among international law scholars. Numerous articles have debated the changing nature of international law and relations: the impact of globalization, the decline of territorial-sovereignty, the ever important role that non-state actors play, and the growing use of domestic laws to solve transboundary problems. That scholarship, however, often speaks only in general theoretical terms, and has largely ignored how these changes are playing out in countries outside the United States in ways that impact American interests.

This Article picks up where that scholarship leaves off. It examines one of the perennial challenges for international …

Iucn As Catalyst For A Law Of The Biosphere: Acting Globally And Locally, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Unique among international organizations, the International Union for the Conservation of Nature and Natural Resources (IUCN) operates at the global, regional, and national levels to build governmental capacity to protect the environment. With a membership of over 75 sovereign states and 800 nongovernmental organizations, IUCN functions as an intergovernmental organization at the transnational level while operationally embodying the maxim "think globally, act locally." IUCN acts as a consortium of environmental scientists and professionals, including environmental lawyers who have proposed and secured adoption of significant environmental treaties such as the Convention on the International Trade in Endangered Species (CITES) and their …

Legislation And Implementation Of International Environmental Law By African Countries: A Case Study Of Ghana, Brigitte L. Okley

LLM Theses and Essays

The purpose of my thesis is to bring to the light the efforts of African countries, in this case Ghana, in implementing their environmental commitments under international law and some of the problems they face in this regard. African countries played a tremendous role in the emergence of international environmental law, after which environmental institutions and legislations have been set up for the conservation and management of natural resources. The thesis will discuss environmental issues particularly in Ghana, its obligation under various multilateral environmental conventions. The thesis will also focus on some of Ghana’s policies on the environment and its …

The Iucn Academy Of Environmental Law: Seeking Legal Underpinnings For Sustainable Development, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

An article describing a “work in progress” can provide only a sketch of the initial plans for the new IUCN Academy of Environmental Law. As the Academy establishes its administrative secretariat, builds its research program, and fashions its collaborative teaching undertakings, the details of this further work will become clear. Their analysis must await the events. Nonetheless, the precedents to date portend a promising future, as illustrated by the launch in Shanghai, and the Academy's initial research into the environmental sustainability of contemporary energy law.

Enforcing Environmental Norms: Diplomatic And Judicial Approaches, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental norms are observed because they are norms about how people respect each other and the natural systems that sustain human communities. Environmental norms are basic to human well-being. They arise out of the human condition, not unlike human rights laws. Environmental norms emerge from the fact that humans exist within ecosystems, and human society is embedded in the natural systems in which they have evolved; environmental norms are grounded in an objective reality, and scientists can measure the consequences of observing--or failing to observe--those norms. The provisions of environmental norms, therefore, exist not merely as pronouncements of governments, applied …

Treaties In Collision: The Biosafety Protocol And The World Trade Organization Agreements, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

In the event of a conflict between the requirements of the Biosafety Protocol, a multilateral agreement governing the trade in genetically modified organisms, and the requirements of the General Agreement on Tariffs and Trade and associated agreements (collectively WTO Agreements), which treaty's requirements prevail? This question lies as the legal heart of the perceived conflict between trade globalization and environmental protection. This issue is particularly timely given the present trade dispute between the United States and European Union over the European Union’s restrictions on the importation of genetically modified agricultural commodities.

In this piece, I analyze the relationship between these …

Justice Unconceived: How Posterity Has Rights, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

Befogged Vision: International Environmental Law A Decade After Rio, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Environmental management has emerged as an important element of governance in practically every nation. This was not the case before the United Nations convened the 1972 Conference on the Human Environment in Stockholm. After Stockholm, nations learned to build environmental ministries and work across sectors nationally, and discovered how difficult it is to reshape entrenched national practices in order to curb pollution and conserve natural resources. With growing experience and knowledge, nations came to realize that no one government alone could safeguard the environment, and that international cooperation would need to be enhanced.

Strengthening Sustainable Development In Regional Inter-Governmental Governance: Lessons From The 'Asean Way', Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

ASEAN was founded with the 1967 Bangkok Declaration in order to encourage stable relations among its original member states, i.e. Indonesia, Malaysia, Singapore, Thailand and the Philippines, and to resist destabilizing influences from the war in Viet Nam. The means to stability was to promote economic, social and cultural cooperation in the spirit of equality and partnership. A formal treaty system was not required. As the Viet Nam war ended, ASEAN held its first Summit Meeting in Bali (1976), followed by the 1977 Summit in Kuala Lumpur, where cooperation on regional industrializations was launched. In this first phase of cooperation, …

David Ross Brower And Nature's Laws, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

“We're not blindly opposed to progress. We're opposed to blind progress.” These words summed up the style and power of David R. Brower. Indelibly, he chiseled toe hold after toe hold on an arduous climb across the rock face of the commercial forces driven to seek short-term gain from natural resources and oblivious to the longer-term costs to the Earth that the ecological sciences would chronicle but that economists would disregard as mere “externalities” in their classical market models. As Brower campaigned to protect the wilderness of North America and the Earth, through his sheer conviction and abundant eloquence, he …

Legal Systems, Decisionmaking, And The Science Of Earth's Systems: Procedural Missing Links, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Decisionmakers disregard scientific findings regarding environmental conditions, despite recommendations of the 1992 "Earth Summit" in Agenda 21 that science should provide a foundation for sustainable development. Although environmental degradation trends continue to exacerbate, decisionmakers address only selected issues. This Article examines an analytic paradigm for evaluating when decisionmakers are ready to address a problem and describes the catalytic role that scientific information can serve in prompting remedial action. Unless systematic procedures require evaluation of environmental scientific findings in the normal course of decisionmaking, science will continue to be ignored. One hallmark of Environmental Law has been to fashion such procedures, …

Forest Fires As A Common International Concern: Precedents For The Progressive Development Of International Environmental Law, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

Without a better global effort to prevent and cope with forest fires, the remaining wild forests' resources of the world are at risk. Quite apart from the present loss of commercial timber and species habitat, and the present problems of flooding and erosion in the aftermath of fires, the loss of these wooded lands will reduce the capacity of regions to absorb carbon dioxide through photosynthesis, thereby making the challenge of managing emissions of greenhouse gases all the more problematic. Forests sequester carbon in their woody tissue as a result of photosynthesis, and are often termed the “lungs” of the …

Environmental Harm In Developing Countries Caused By Subsidiaries Of Canadian Mining Corporations: The Interface Of Public And Private International Law, Sara Seck

Articles, Book Chapters, & Popular Press

This 1999 publication examines home state responsibility for transnational environmental harm from the perspective of both private and public international law, using Canadian mining internationally as a case study.

The 'Ascent Of Man': Legal Systems And The Discovery Of An Environmental Ethic, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

A decade ago, firefighters in a warehouse on the Rhine in Switzerland washed chemicals, solvents, and mercury into the river, destroying all life in the river for miles, killing millions of fish, and endangering the water supplies of cities in Germany and the Netherlands. This tragedy galvanized the river valley states into action. They vowed to clean up the river, not just from that incident but from the effects of having used the river as a sewer for two centuries. But how clean is clean? The goal for this calculated plan, which will take decades to achieve, is symbolized by …