UN Climate Talks in Warsaw, Poland

Hi everyone! Just wanted to quickly share this NPR story that I just heard on All Things Considered: http://www.npr.org/templates/story/story.php?storyId=246409449

(The story just aired, but the audio will be available by 7 pm tonight.)

The story is “At Climate Meeting, Tensions Rise between Rich and Poor Nations.” The featured interview is with a UN negotiator representing Bangladesh, and he voices several poignant concerns of developing countries which are proving difficult to negotiate in Warsaw. The main point of contention between developing and developed countries is the suggestion that advanced, wealthier countries should provide financial and technological aid to developing countries in order to help them adapt to climate change.

The discussion is especially interesting in that the discussion in Warsaw seems to be increasingly revolving around adaption as opposed to mitigation. It seemed clear in our readings and class discussion that developed countries have an incentive in helping developing countries to take measures in mitigating climate change, because climate change is a global issue which inevitably effects everyone, no matter who the contributor. However, do developed countries have the same incentive to help developing countries adapt to climate change? Are developed countries obligated to perhaps help those developing countries who have shown a commitment to stopping climate change?

I really recommend listening to the clip – it’s short and very relevant to the material we just covered!

- Jasmine

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Inequities of Global Climate Change

As we begin our segment on International Law and climate change, I’d just like to highlight the contents of the recent NY Times article, “Growing Clamor About Inequities of Climate Crisis.” During a routine climate change conference in Warsaw, Poland, there was outrage amongst representatives from developing countries, who claimed that there should be some compensation from developed countries after extreme weather events that leave developing countries crippled. The damaging effects of Typhoon Hyan, which killed thousands in the Philippines, particularly triggered this outrage.

Representatives from developing countries such as Kenya and Bangladesh, and environmentally vulnerable areas like Seychelles, claimed that the unsustainable and environmentally hazardous practices of developed countries after the industrialization period have compromised the global ecosystem, thus leading to extreme weather events. On top of that, many developed countries base their factories in and extract resources from developing countries, further impacting the environment through desertification, salinization, and erosion. Developing and environmentally vulnerable countries claim that they must bear the brunt of the extreme global warming events, while developed countries have the economic and political means to keep themselves afloat.

The proposed solution by the developing countries at this conference was for the developed countries to create a fund for developing countries that are affected by extreme weather. Already, there has been opposition to this by wealthier countries like the United States. A US representative stated that such a fund is not possible because of the country’s domestic fiscal priorities, like healthcare and education costs. In fact, most of the opposition by developed countries is that they cannot expend resources on a fund for developing countries because of their domestic priorities. In relation to international law, there is still clearly a conflict between domestic and international priorities, even when the circumstances are as dire as extreme weather events.

The Climate Green Fund proposed by developing countries is also complex because it assumes that developed countries are solely responsible for the negative emissions since industrialization. However, as a group, developing countries will account for more than half of all historical emissions within the next decade. Therefore, it is not completely fair to shirk all of the responsibility on the developed countries, especially since they are largely the ones that are moving toward more sustainable practices in the present.

It is fair, in my opinion, to consider that many developed countries do take advantage of the fact that certain developing countries do not have enough political clout to protect their resources from the industry of developed countries. Thus, when unsustainable foreign industrial practices in developing countries do negatively impact the area, it should not be the responsibility of the developing country to then have to deal with it.

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In the news: stories relevant to international environmental law

We are now moving on to International Environmental Law in our IL course. Here are some recent stories to get us thinking:

First, you may want to look at this projection of “what Earth will look like if we melt all the ice”. Florida is gone, amongst other changes.

Second, it is worth looking at the issue of fragmentation (and incoherence) in international environmental law. This is an important theme is this issue-area. Marc Benitah notes over at the International Economic Law and Policy Blog that the Faroe Islands are issuing simultaneous complaints under the UN Convention on the Law of the Sea and at the WTO. The WTO overlaps with a lot of other fora, so this is not entirely surprising. But the ramifications are important. One question I have is how small countries such as this can expect to have the resources to pursue such cases in multiple fora.

Finally, the West Coast is trying to do its own thing on the environment (again). This time California, Oregon and Washington are “joining” British Columbia to coordinate environmental policy. The Pacific Coast Action Plan on Climate and Energy is an attempt to deal with climate change at the sub-national level. While individual states in the US cannot pursue trade-related deals on their own, there is little in the constitution that prevents them from making these sorts of pacts. So it raises all sorts of interesting issues regarding sub-national attempts to create foreign policy (and international law) in the US.

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In the news: chemical weapons, treaties, and privacy

Before my International Law class moves on to International Environmental Law, it is worth noting news from the last week that is relevant to topics we recently covered.

Bond v. United States
First, the Supreme Court heard arguments in Bond v. United States. This case should interest us for a number of reasons. One is that it deals with the ability of Congress to implement treaties using statutes that could potentially intrude on the sovereignty of individual states. This is being viewed as a contemporary version of Missouri v. Holland.

The other, very intriguing, issue is whether the Chemical Weapons Convention can apply to a conventional poisoning case. Essentially one woman poisoned another woman in Pennsylvania (for sleeping with her husband and getting impregnated). The case, which normally would be handled by local and state authorities, ended up becoming a federal case as violation of the Chemical Weapons Convention. Which on the face of it is a very odd interpretation of that treaty.

For more information, see:
        SCOTUSblog’s page on the case
        Articles in Opinio Juris by Peter Spiro and Marty Lederman
        Articles at Volokh Conspiracy

Privacy and Spying
Spying is all over the news. The US is, apparently, spying on just about everyone. Or, at least, that is what one must think after reading all of these stories. Over at Lawfare, Orin Kerr has a piece discussing whether U.S. law should protect the privacy of foreigners abroad. This is an interesting spin on the themes we have discussed in our class about the extraterritorial application of US law.

As for all of that spying on heads of states stuff, I must say I am shocked anyone is shocked. Hasn’t that always been the case? Isn’t that what we expect?

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Brittany Spears is a Weapon of Mass Destruction

Best news of the day: the British Navy is using Brittany Spears songs to scare off Somali pirates.

Kevin Heller reports on Opinio Juris:

This is an unconscionable tactic, one that does not befit a country that considers itself civilized. Need I remind the British Navy that torture is illegal under both international and UK law?
The British Navy should also be aware that international law does not completely forbid belligerent reprisals. If the Somali pirates begin to fight back by blaring One Direction at oncoming British ships, the Navy will have no one but themselves to blame.

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Spying on World Leaders & US Credibility: Is it really worth it?

Today’s new technological advancements seem to be accompanied by an increased willingness of the US government to use, and possibly abuse, their new capability to breach the privacy of both domestic and international individuals. The revelation of recent NSA information gathering on US citizens has resulted in a huge backlash of government mistrust and skepticism from the general public. Questions have arisen regarding our Constitutional rights and the extent to which they have been violated by these large-scale information gathering programs. These are domestic legal questions which may be evaluated in reference to our Constitution and laws regarding privacy rights and the right of agencies to breach those rights in certain circumstances.

However, allegations have now surfaced that the NSA program extended internationally, including the alleged bugging of German Chancellor Angela Merkel’s personal cell phone. In my opinion, this is an important time for the United States administration to step back and reevaluate the scope of their surveillance programs and the possible international implications for such conduct. Does Germany, one of our  closest and most powerful allies, have reason to criticize these US actions under international law? If more of these allegations of secret surveillance are revealed in the international  community, what are the implications for the US?  NPR reports that the US has conducted secret surveillance on at least 35 leaders worldwide.

The administration seriously needs to reconsider their priorities and approach to foreign policy in this case. Even if a limited amount of useful or pertinent information was gained from bugging our allies, is such information really worth the real risk of our reputation and standing within the international community? It is already risky for the US to subject its own citizens to such legally questionable surveillance; the international community, especially our Western democratic allies, already have reason to judge this domestic policy in evaluating our democracy and the freedoms guaranteed to our citizens. The ramifications for spying on nationals of other countries, particularly on the state leaders and officials of our allies, could result in a much broader international condemnation of US policy. Are we really willing to sacrifice the trust and respect of our allies in order to dig for a small amount of intel?

Some other interesting sources and consequences of this conflict:

http://www.wbur.org/npr/223414386/brazilian-president-postpones-state-visit-over-spying-concerns

http://worldnews.nbcnews.com/_news/2013/10/23/21100534-germanys-merkel-calls-obama-did-nsa-monitor-my-cellphone

 

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Recent Dominican Supreme Court Decision Revokes Citizenship from Haitian Migrants Leaving over 200,000 People Stateless

http://www.bostonglobe.com/opinion/editorials/2013/10/14/dominican-court-misguided-ruling-citizenship/mORro1nM1x0qOXfwJfvPrN/story.html

This recent decision has a lot to do with the Dominican Republic’s history and its troublesome relationship with Haiti. Rafael Trujillo was a dictator in the DR who ruled for about 30 years starting in 1930 and had a huge anti-black agenda. Still to this day his terrible legacy lives on and is manifested into racism within the country. The majority of migrants to the DR are Haitians.

This ruling is a flagrant violation of human rights, disenfranchises people because of the color of their skin, and creates one of the largest groups of stateless people ever to exist. This would affect people who arrived to the DR two days ago or those who have lived in the country for generations and have considered themselves Dominicans with no ties to Haiti. Stateless people are not only unrecognized as citizens but are also stripped of education, employment, healthcare, and the ability to enter and leave the country freely. Like the article mentions, I wonder whether the United States (the DR’s largest trading partner) will apply any pressure and what International Organizations will do. I’m also curious as to what the results for the UN study mentioned in the article will be and hope that the DR’s current president advocates for new legislation.

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The Consequences of Drone Strikes

The Obama administration’s use of drone strikes has been widely controversial. The NYT editorial board refrains from taking a strong stand on either side of the drone argument but it does conclude that while drones are important in targeting elusive extremists and sparing US troops, the strikes are successfully creating new enemies for the US – civilians and militants – in the countries that have been targeted. (http://www.nytimes.com/2013/10/24/opinion/the-deaths-of-innocents.html?hp&_r=0). The board calls for more transparency and accountability from the US government.

If we were to increase transparency, what would that look like? More reports from organizations such as Amnesty International and Human Rights Watch suggesting that the US “may have violated international law and even committed war crimes” will certainly bring the issue to the forefront but it won’t necessarily change the current situation. There would have to be a serious uproar from the American public and even then, a second-term president may not prioritize public opinion over what is interpreted as national security.

What would more accountability from the government look like? Government reports detailing the collateral damage? Press statements after each drone strike? What kind of progress are we looking for when we call for more accountability?

Pakistan has a non-surrender agreement, or bilateral immunity agreement, with the US. (http://www.iccnow.org/documents/CICCFS_BIAstatus_current.pdf). Undoubtedly, US-Pakistan relations have been on a slippery slope in the past few years, but the reality hasn’t been disconcerting enough to warrant a change in practice. In my opinion, the current status quo is simply impossible to maintain. Consistent drone strikes in Pakistani territory cannot continue indefinitely. While I’m skeptical that more transparency and accountability will make a difference, it is probably worthwhile to address the issue before allowing foreign frustration and anger toward the US to grow into a mobilized reaction.

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ATS Update: Daimler v. Bauman

This should be of interest to my International Law students. The Alien Tort Statute (ATS) has been used as a way to bring foreign human rights claims into US courts.

Adam Steinman has a post on Opinio Juris about the oral arguments in this case, which resembles Kiobel. The Ninth Circuit in California found that Daimler (an otherwise foreign defendant) is subject to California jurisdiction given its American subsidiary, Mercedes Benz USA.

The key issue for SCOTUS:

the question for which the Court granted certiorari in Daimler involves personal jurisdiction and is not limited to ATS cases: “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the defendant in the forum State.”

The likely outcome? As Steinman notes:

While it appears unlikely that the Court will endorse the Ninth Circuit’s conclusion that general personal jurisdiction existed over Daimler, it is possible that the Court’s opinion will be a narrow one.

That is, it is unlikely but still possible they will rule that the specific circumstances here allow for jurisdiction to be asserted.

By the way, the substance of the case is that a different subsidiary of Daimler in Argentina was alleged to have committed human rights violations in Argentina. SCOTUS isn’t concerned with that issue, only the issue of whether we can establish jurisdiction in the US under the ATS.

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US Violations of International Law: Guantanamo Bay

The following article is relevant to our reading from Monday on the US application of the Law on Torture to detainees in the War on Terror. By expanding and manipulating the definitions of certain practices that had been clearly categorized as war crimes in the international realm, the Bush Administration accomplished a feat that opened the gates for an essentially all-powerful American executive branch to act as it wished. Loose adherence to international norms led to the deliberate hiding of truths from the American public and the global audience at large.

As the Office of Legal Counsel memorandum outlined, Congress could not regulate the executive powers of the Commander-in-Chief on constitutional grounds. Thus the President’s detention and interrogation of enemy combatants is independent of any international definition of torture, since no legislative statute is able to check his power on the subject.

This idea is directly applicable to the current problem in Guantanamo Bay.

One of the realities that resulted from the hyper anti-terror mindset after 9/11 was the creation of the detention center at Guantanamo Bay. For some, the detention of suspected terrorists and individuals affiliated with terrorists at Gitmo simply symbolized the commitment of the US government to preventing another attack and to cracking down on terror. However, such an argument is faulty from multiple angles. Many of the prisoners have not been charged with a crime; they have been deprived of a basic right to trial; they have been treated inhumanely. The existence of the prison in the first place is in conflict with American values.

As this Amnesty International article points out, some of the prisoners have been authorized for release years ago and yet they are still being held in their prison cells. Even worse is the authorized regulated practice of force-feeding prisoners who have elected to go on hunger strikes.  The absurdity of this situation unfortunately reflects the behavior of the US government as it operates believing that it is an exception to the rule, or rather the rules. As long as the US believes its authority is above that of international law, our practice of war crimes by a different name – security, defense, whatever it may be – will continue. We go to such lengths to protect the US image as the defender of democracy and the champion of freedom and equal rights but perhaps we should turn to our own matters first to make sure we practice what we preach.

The Amnesty article links to an article on The Guardian and if you are interested in the topic, I encourage you to watch the animated video. It’s not for everyone but it gets the message across…

http://blog.amnestyusa.org/us/the-plight-of-guantanamos-cleared-detainees-in-one-powerful-new-video/

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