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. …

The United Nations Water Courses Convention On The Dawn Of Entry Into Force, Ryan B. Stoa

Vanderbilt Journal of Transnational Law

The United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses (Watercourses Convention) entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational principles …

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 …

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 …

Jonathan I. Charney: A Tribute, Richard B. Bilder

Vanderbilt Journal of Transnational Law

I first met Jonathan in 1967 when he was a student in my international law class at the University of Wisconsin Law School. It was only my second year of teaching--I had just come to Wisconsin after some years with the State Department's Office of Legal Adviser. But Jonathan was a generous and forgiving, as well as excellent, student and somehow we both got through the course. Anyway, Jonathan became, first, the student of whom I was most fond; then, as his career developed, the student of whom I was most proud; and, eventually, as the years passed and our …

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 …

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 …

Free Navigation: Examination Of Recent Actions Of The United States Coast Guard, Edward H. Lueckenhoff

Vanderbilt Journal of Transnational Law

The use of aircraft and large, seagoing vessels for smuggling marijuana and other illicit drugs has created a burgeoning problem for United States efforts to control its borders. The use of foreign flag ships as "mother ships" is particularly troublesome. This practice involves foreign flag vessels, often containing several tons of marijuana, that hover in international waters just outside the United States territorial sea. The marijuana is transferred from these mother ships to smaller vessels which then cross into United States waters and distribute the contraband at prearranged points along the coast. The immunities provided by international law for foreign …

United States Interests In A Convention On The Law Of The Sea: The Case For Continued Efforts, Jonathan I. Charney

Vanderbilt Journal of Transnational Law

Over 150 nations have been engaged in the negotiation of a multilateral Convention on the Law of the Sea at the Third United Nations Conference on the Law of the Sea for more than five years. The negotiations have included virtually every possible issue involving relations between nations with respect to the oceans, such as fishing, national jurisdiction, navigation, environment, scientific research, seabed exploitation, and transfer of technology.' The current product of that negotiation is the Informal Composite Negotiating Text (ICNT), a 198-page document containing 303 treaty articles plus seven annexes. Although the participating nations agree on much of the …

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 …