AUGUST - NOVEMBER 2012


COURSE MATERIALS

 


Topic & Speaker

 Click for Presentation Link

Reading Materials

 

Unit 1

Introduction to Int'l Environmental Law

David Linnan

Univ of South Carolina

School of Law

 

Prep Questions

 

 

 

[ppt]

[pdf]

 

  1. Read for our first class :

    Mahathir bin Mohamad, Greening of the World to a Better Living: Address by the Prime Minister of Malaysia at the Official Opening of the Second Ministerial Conference of Developing Countries on Environment and Development, on 27 April 1992. Kuala Lumpur; Jabatan perkhidmatan Penerangan Malaysia, 1992  

    Porter, Gareth and Janet Welsh Brown. Global Environmental Politics. Boulder;
    Westview Press, 1991. pp 15-33
     

  2. We shall spend much of the first class in lecture format explaining generally the international law system and public international law’s sources of law doctrine as technical background for our course.

  3. Before class watch the streaming video entitled Unit 1 – International Law Backgrounder from the Fall 2004 LAWS 783 Public International Law course.

 

 

 

Unit 2

 

Customary Law as Basis for Int'l Environmental Law

 

David Linnan

Univ of South Carolina

School of Law

 

Rotunda discussion problem

 

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Read the three following decisions as probably the leading customary law precedents for international environmental law, which ultimately largely define the scope of international environmental law obligations outside treaty:

    Trail Smelter Arbitration excerpt

    Lake Lanoux Arbitration excerpt

    France-Australia Nuclear Test Case excerpt

    [if you are red hot and want to see the full text of the basic customary law precedents for international environmental law see the full versions of the  Trail Smelter ArbitrationLake Lanoux Arbitration and France-Australia Nuclear Test Case]

  2. In preparation for class watch the streaming video entitled Unit 19 – Introduction to International Environmental Law from the Fall 2004 LAWS 783 Public International Law course.

  3. Prepare the Rotunda discussion problem.

 

 

 

Unit 3

 

Human & Development Rights-based Legal Approaches to Int'l Environmental Law

 

David Linnan

Univ of South Carolina

School of Law

 

Prep Questions

 

 

 

 

 

 

 

 

[ppt]

[pdf]

 

  1. Read Prof Stephen Marks, The Human Rights Framework and its Relevance for Development (Presentation Paper in PDF format).

  2. Read the 1972 Stockholm Declaration as the modern beginnings of international environmental law.

    [Optionally, if you are red hot and really interested in understanding Stockholm in its original terms, you can go to Louis Sohn’s much longer contemporaneous annotated version for more detail at Sohn, Louis. “The Stockholm on the Human Environment”. Harvard International Law Journal vol. 14 pp. 423-515,]

  3. Also read the following more philosophically-oriented material

    “The Deep Ecological Movement: Some Philosophical Aspects”. Arne Naess. Philosophical Inquiry vol.8 pp. 10-20.

    Sagasti, Francisco R. and Michael E. Colby. “Eco-Development and Perspectives on Global Change from Developing Countries”. Global Accord:Environmental Challenges and International Response. Ed. Nazli Choucri. Cambridge; The MIT Press, 1993. and address Unit 3 prep questions for the Stockholm Declaration and eco-development perspectives  


  4. Read as bridge between the 1972 Stockholm Declaration era and 1992 Rio Declaration concerning the Brundtland Report and its critics the files World Commission on Environment and Development. “From One Earth to One World: an Overview by the World Commission on Environment and Development”. From Our Common Future. New York; Oxford, U.P, 1987. pp 1-23

    “Sustainable ideologies and interests: beyond Brundtland”. William D. Graf. Third World Quarterly vol. 13 pp. 553-59. 

    Then read the 1992 Rio Declaration and the 2002 Johannesburg Declaration on Sustainable Development
    and address Unit 3 prep questions for the Stockholm to Rio to Copenhagen Declaration developments

    [optionally for red hots, to see how sustainable development starts to look under a human rights methodology and the Earth Charter,
    look at http://www.earthcharter.org]

 

 

 

Unit 4

 

Softer than Soft and Harder than Hard Law ATCA Approaches (Customary Law Versus General Principles)

 

David Linnan

Univ of South Carolina

School of Law

 

Big Corp Smelter Problem

 

Prep Questions

 

 

 

 

 

 

[ppt]

[pdf]

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  1. Compare excerpted complaint filed April 29, 1996, in US District Court, Eastern District for Louisiana Civil Action 96-1476 Tom Beanal et al v. Freeport McMoran (suit ultimately dismissed; a regular human rights count in the complaint was not included in the excerpt)
    with
    website material to be found at Freeport-McMoran Copper & Gold Inc. Look at some of the videostreaming on the website concerning the tailings and other matters addressed factually in the complain
    t.
    and
    You Tube Video: Irian Jaya-Human Rights, Corporate Wrongs-Indonesia
    and
    Norwegian Government Petroleum Fund-Global Council on Ethics, Recommendation of 15 February 2006
    (on divestment on Freeport McMoran stock). The Fund is the investment vehicle into which most of Norway 's North Sea oil production profits go, while the Ethical Council is simply its advisory body. You may treat it for these purposes as representative of the newer breed of socially conscious investors, which is unusual only insofar as it publishes the basis for its investment decisions.                                                                                                                                                                          
     
  2. In preparation for class watch the streaming video entitled Unit 4 – Lately from the Supreme Court, Kerr-Frisbie, ATCA, Etc. from the Fall 2004 LAWS 783 Public International Law course 4.  Then I want everyone to read the sources embedded in the unit 4 LAWS 783 class discussion problem on the Alien Tort Claims Act (ATCA) to determine what the standard might be for bringing an international environmental law claim under the ATCA.                                                                          

  3. As example of attempts to make international law actionable in different countries, see two following sources:
    a. Fafo Business & Int'l Crimes Project Page
    b. INDONESIAN REPORT 08/28/06 (Fafo Country Survey)
                                                                                                                                                                                                                                                                      [optionally for red hots, see the Freeport controversy additionally The Amungme, Kamoro & Freeport:How Indigenous Papuans Have Resisted the World's Largest Gold and Copper Mine]

 

 

Unit 5

Private Sector Voluntary Codes

David Linnan

Univ of South Carolina

School of Law

 

Big Oil Problem

Prep Questions

 

 

[ppt]

[pdf]

     

  1. The private sector has embraced a variety of voluntary principles in the environmental and social impact areas. You can look at particular examples in the form of the so-called Equator Principles (addressing financial institution involvement with project finance) and Carbon Principles( providing a consistent approach for banks and their U.S. power clients to evaluate and address carbon risks in the financing of electric power projects). You can also look at the disclosure-based ISO 14000 principles on environmental management in context by reading pages 1-26 of IISD, Global Green Standards: ISO 14000 and Sustainable Development). Finally, you should work your way around the website of the World Business Council for Sustainable Development as probably the leading international business group concerned generally with the environment.

  2. What is international criminal law, and how does it differ from domestic law? See the ICJ 2008 report entitled Corporate Complicity and Legal Accountability to see beyond the ATCA what is driving the private sector's yearning for a safe harbor. 

  3. Consult the linked sources on environmental and social effects of the Tangguh LNG project, including human rights compliance as case study.                                                                                                                                
  4. Watch You Tube Video: Irian Jaya - Indonesia , which is a general presentation of effects on the native Papuans of development and government policies beyond the Freeport Grasberg mine (note there is a cameo interview with Tom Beanal as Amungme tribal leader and named plaintiff under the Freeport ATCA lawsuit). Consider the extent to which the Tangguh project's framework and policies are directed as planning matter against a combination of the social forces visible in the streaming video, various ATCA causes of action and other negative consequences such as the Norwegian Government Petroleum Fund's disinvestment decision read for unit 4.


 

 

Unit 6

 

Distributive Justice and Agency Problems in Int'l Environmental Law (Hidden Economics)

 

David Linnan

Univ of South Carolina

School of Law

 

 

Eskimo Whaling Problem

 

John Q. Public Problem

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Compare The Distributive Effects of Economic Instruments for Environmental Policy. Pp. 39-62 (OECD 1994) 
    with 
    "The Freedom to be Dirtier than the Rest; Why Differing Environmental Priorities Cause Problems for Trade," The Economist, May 30, 1992

  2. Compare Eskimo Whaling Problem
    with
    Japan Whaling Association website cultural arguments on the permissibility of whaling

  3. In preparation for class watch the streaming video entitled Unit 5 – Agency & Distributional Interests (Hidden Economics)

  4. Prepare as class role problem the John Q. Public in Cascadia (so differing members of the group will be appointed as different NGOs and the government to compete to represent John Q.Public) as well as Unit 5 prep questions for the OECD & John Q. Public

    [Optionally , the link between globalization, trade and the environment is of special interest, and for red hots and  those of you not already informed on the subject you might look optionally for a short introduction at World Bank briefing papers to be found at http://web.archive.org/web/20000823054433/www.worldbank.org/html/extdr/pb/globalization/index.htm]

    [If you are interested and red hot, read D. Wheeler, Racing to the Bottom?  Foreign Investment and Air Pollution in Developing Countries (World Bank Working Paper 2524, January 2001)
     and then address as a discussion problem Nam Theun Hinboun Hydropower Project in Laos at as well as Unit 5 prep questions for Wheeler & Duraiappah]

 

 

Unit 7

Trade/Scientific Risk NTBs & Non-State Aspects

David Linnan

Univ of South Carolina

School of Law

Dolly the Sheep GMO Case Study

Prep Questions

 

 

 

[ppt]

[pdf]

 

  1. Read for class :

    EC Measures Concerning Meat and Meat Products (Hormones) (aka Beef Hormone Case, WT/DS26/AB/R & WT/DS48/AB/R, January 16, 1998 WTO Appellate Body edited)

  2. Read and reflect on the following addition to the Convention on Biological Diversity :
    2000 Cartagena Biosafety Protocol

    [Red hot
    s may wish to consult the most recent WTO dispute resolution body action on biotechnology, namely the proceedings of Agentina, Canada and the United States against the European Union concerning its moratorium on biotechnology product introductions 1999-2003, see WTO dispute settlement reports dated September 29, 2006.]

  3. In preparation for class watch the streaming video entitled session 1--The Illusion of Certainty: Health Benefits and Risk.

 

 

Unit 8

 

Treaty Process Approaches to Int'l Environmental Law: Package Deal vs. Framework Convention

 

David Linnan

Univ of South Carolina

School of Law

 

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Compare :

    Caminos, Hugo and Michael R. Molitor. “Progressive Development of International Law and the Package Deal”. The American Journal of International Law. October 1985, Vol. 79 No.4, pp 871-90 with 
    “Global and Regional Approaches to the Protection and Preservation of the Marine Environment” Boczek, Boleslaw Adam. Case W. Res. J. Int'l L. vol. 16 (1984) pp 39-70.
    with 
    “Crafting a Winning Coalition: Negotiating a Regime to Control Global Warming”. By James K. Sebenius. From Greenhouse Warming: Negotiating a Global Regime. Washington D.C., World Resources Institute, 1991. pp. 69-98.

  2. Look at LOS as a framework treaty, with ICCAT as a regional management entity created under its terms :

    LOS (1982) (sample, general treaty end result)

    ICCAT (sample, regional resource management body under LOS umbrella)
    l


    But the ICCAT has been criticized, too. How do you think this happens?


  3. [[optionally, if you are red-hot and want to understand how LOS looks from 20 years' distance, look at the UN LOS 20th anniversary conference materials to learn something about implementation]

 

 

 

 

Unit 9

Implementation and International Monitoring on the Example of Ozone

David Linnan

Univ of South Carolina

School of Law

 

Prep Questions

 

 

 

 

[ppt]

[pdf]

 

  1. Read for class :

    Peter M. Haas, "Banning Chlorofluorocarbons: Epistemic Community Efforts to Protect Stratospheric Ozone," International Organization, Vol. 46, No. 1, Knowledge, Power, and International Policy Coordination. (Winter, 1992), pp. 187-224.

    Wolfgang Fischer, "The Verification of a Greenhouse Gas Convention—a New Task for International Politics?”.Verification Report 1991:Yearbook on Arms Control and Environmental Agreements. New York; The Ape Press, 1991. pp. 197-206

  2. Examine from viewpoint of economic factors visible in behaviour :
    John Sevigny, Mexican, US Officials Discuss Measures to Combat Freon Smuggling (Feb 7, 2003) Report of First Extraordinary Meeting of the Parties to the Montreal Protocol (March 24-26, 2004) [concentrate on Methyl Bromide discussion, which is used as a fungicide in agriculture]

  3. Examine background :
    Evolution of the Montreal Protocol (1987) [consult texts as needed]

    [if you are red hot and wish to understand what is really going with Ozone depletion and the Montreal Protocol see EPA, Ozone Science: The Facts Behind the Phase-Out and for the current scientific assessment see World Meteorological Association, Executive Summary: Scientific Assessment of Ozone Depletion 2002; to understand the general problem of verification and treaty compliance see Elizabeth P. Barrat-Brown, "Building a Monitoring and Compliance Regime under the Montreal Protocol,” Yale J. Int'l L. vol. 16 (1991)pp. 519-70.]

 

 

 

Unit 10

 

Climate Change as the Ultimate Test for the Framework Convention Approach

 

David Linnan

Univ of South Carolina

School of Law

 

Prep Questions

 

 

[ppt]

[pdf]

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  1. Watch streaming videos : Honorable David Anderson, Canadian Federal Minister of the Environment on "Why Canada Should Ratify Kyoto" (October 16, 2002)
    and
    Streaming video Newshour with Jim Lehrer, "Bush's Environmental Policy:  Discussion" (March 29, 2001)

  2. Sample as Scientific & Policy documents :
    IPCC, Climate Change 2001: Synthesis Report, Summary for Policymakers

    "Climate commitments:  Assessing the options" By Dan Bodansky, From Beyond Kyoto: Advancing the international effort against climate change, Pew Center for Global Climate Change 2003, pp. 37-59 (read only Bodansky article in larger pdf file)

    [optionally, if you are red hot and wish to hear a scientist discussing the climate change issue from a scientific point of view as follow up to the Synthesis Report, see in streaming video form Dr. David Schindler, "Environmental Costs of Greenhouse Warming" (November 21, 2002)]

        3.  John Sevigny from internet archive.

        4.  Report on the first extraordinary meeting use.
.

 

Unit 11

Domestic Implications of International  Treaty-Making:  The Basel Convention & Hazardous Waste

David Linnan

Univ of South Carolina

School of Law

Vrozen Vrootjes Problem

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Read :
    “The International Control of Hazardous Waste,” in Birnie & Boyle, International Law and the Environment 300-44 (1992) [read only 332-43, since here we are only concerned with hazardous waste transfer]

    1999 Basel Hazardous Waste Import/Export/Recycling Statistics

    William Doyle, “United States Implementation of the Basel Convention: Time Keeps Ticking, Ticking Away . . .”, 9 Temple Int’l & Comp. L.J. 141-61 (1995)

  2. Compare from the viewpoint of law versus behaviour :
    Hazardous Waste Discussed (Jakarta Post, January 28, 2004)

    Basel Action Network [listen to BAN coordinator Jim Puckett in streaming audio for NGO views, note conflicts in BAN Hall of Shame]

  3. Study on background for the treaty's literal approach :
    1989 Basel Convention on the Control of Transboundary Movements of Hazardous Waste [consult as needed]

    [if you are interested and redhot, see S.D. Myers NAFTA Chapter 11 Partial Arbitration Award re Basel & NAFTA]

 

 

Unit 12

1973 CITES Convention & Approaches to the Marine Environment ; New Science and Old Treaties

David Linnan

Univ of South Carolina

School of Law

 

Exoticwood CITES Petition Problem

 

Papageno & Ivory Baeren Problem

 

Prep Questions

 

 

 

 

[ppt]

[pdf]

 

  1. Read Saskia Young,  "Contemporary Issues of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Debate Over Sustainable Use," 14 Colo. J. Int'l Envt'l L. & Policy 167 (2003)

    “Conservation of Marine Living Resources” in Birnie & Boyle, International Law and the Environment 490-542 (1992)

    Pew Oceans Commission Workshop, Managing Marine Fisheries in the United States (2001) [a collection of circa ten 5-8 page papers, of which you should read the Heneman pp. 1-5, Hildreth pp. 6-11, Machinko & Hennessy pp. 17-24, and Bromley pp. 35-39 focusing on the legal aspects namely the papers of  in trying to understand the problematic structures of fisheries law and management as an approach to marine natural resource management with a view to environmental preservation]

  2. Study on background for the treaty's literal approach :
    1973 Convention on the International Trade in Endangered Species [consult as needed]

    [if you are red hot and are really interested, beyond the kind of renewable resource management questions on fish, in the marine environment you have a pollution and hazardous waste dumping problem which you can see summarized at “The Regulation of Marine Pollution” in Birnie & Boyle, International Law and the Environment 251-99 (1992) and  “The International Control of Hazardous Waste,” in Birnie & Boyle, International Law and the Environment 300-44 (1992) (read 300-32 for the marine hazardous waste issues)]

 



Unit 13

1992 Biodiversity Convention, Indigenous Knowledge & IP Living Organism Overlap

David Linnan

Univ of South Carolina

School of Law

Kanis Kerala Case Study

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Compare :
    David E. Bell, "The 1992 Convention on Biological Diversity: The Continuing Significance of U.S. Objections at the Earth Summit,” 26 GW J. Int'l L. & Econ 479-537 (1993)

    Biodiversity & Intellectual Property Rights:  Reviewing Intellectual Property Rights in Light of the Objectives of the Convention on Biological Diversity (March 2001, Joint Discussion Paper  WWF & CIEL)

  2. Study on background for the treaty's literal approach :
    1992 Convention on Biodiversity [consult as needed]
    2000 Cartagena Biosafety Protocol [consult as needed]

 

Unit 14

Enforcement & Natural Resources

David Linnan

Univ of South Carolina

School of Law

[Indonesian Logging Problem Group Presentation]

Flathead Mine & Boundary Waters Treaty Problem

Prep Questions

 

 

[ppt]

[pdf]

 

 

    

  1. Read Aaron Schwabach, “The Sandoz Spill: The Failure of International Law to Protect the Rhine from Pollution,” 16 Ecology Law Quarterly 443-80 (1989)


  2.  Re-read Lake Lanoux Arbitration excerpt


  3. Watch the streaming video under unit16 (treaties) to be found in the 2004 public international law course to prepare the Flathead Mine problem.

     

 

        

 

 

Unit 15

Trade & Environment (WTO & GATT Article XX Exceptions)

David Linnan

Univ of South Carolina

School of Law

Danish Bottle Case [treat as a WTO problem]

Prep Questions

 

 

 

[ppt]

[pdf]

 

  1. Study on background :
    Relevant WTO Treaty Provisions
    Understanding the WTO: The Environment

  2. Read as leading cases :
    United States – Restrictions on Imports of Tuna (aka dolphin friendly tuna, GATT era, DS21/R-39S/155, September 3, 1991 GATT Appellate Body edited)

    United States – Import Prohibition of certain Shrimp and Shrimp Products (aka shrimp turtle excluder devices, WT/DS58/AB/R, October 12, 1998 WTO Appellate Body edited)

    United States – Standards for Reformulated and Conventional Gasoline (aka Venezuelan Refinery Case, WT/DS2/AB/R, April 29, 1996 WTO Appellate Body edited)

    [if you are interested and are red hot, for more detail see 1999 WTO Trade & Environment Report, 2002 WTO Secretariat  Note on Article XX Law plus full text WTO Agreements]

 

Unit 16

Trade & Environment (cont’d)

David Linnan

Univ of South Carolina

School of Law

Dutch Legislation on Sustainability Labeling & Wood Problem [see pages 91-95 in longer OECD pdf document plus Dutch WTO TBT notification G/TBT/Notif.98/448, February 2, 1998, and Malaysian WTO TBT notification response G/TBT/W/96, November 9, 1998, asking whether the Dutch labeling initiative would survive WTO scrutiny if enacted into law]

[Three Gorges Problem Group Presentation]

[Southern Bluefin Tuna Problem Group Presentation]

Prep Questions

 

 

 

[ppt]

[pdf]


  1. Compare :
    Doha Ministerial Declaration of November 14, 2001 [see especially paragraphs 31-33)
    with
    Report to the 5th Session of the WTO Ministerial Conference in Cancun on Paragraphs 32 & 33 of the Doha Ministerial Declaration (WT/CTE/8 11 July 2003)

 

Unit 17

Nafta, Investment & Sovereignty

David Linnan

Univ of South Carolina

School of Law

[Nafta Chapter 11 Methanex Group Presentation]

Prep Questions

 

 

[ppt]

[pdf]

 

  1. Read :
    “The NAFTA Environmental Side Agreement: Implications for Environmental Cooperation, Trade Policy, and American Treatymaking”. Steve Charnovitz. From Temple International and Comparative Law Journal vol. 8 pp. 257-314.

    “The North American Free Trade Agreement”. NAFTA and the Environment: Substance and Process. Ed. Daniel Magraw. Chicago; ABA, 1995. pp 27-78. [Relevant general NAFTA provisions]

    “The Meaning of Sovereignty”. Koskenniemi, Martti. From From Apology to Utopia: The Structure of International Legal Argument. Helsinki; Finnish Lawyers’ Publishing Company, 1989. pp207-20.

 

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