The Resistance


I got the bus for a 5:00 am start from New Jersey to the Women’s March in Washington, D.C., a gathering of hundreds of thousands – “Who are we? We’re the popular vote!” – on the Mall. We were ready to show and tell the reasons #WhyIMarch. Some warned to “Respect Existence or Expect Resistance”. Some reminded us that “Environmental Rights Are Women’s Rights and Women’s Rights Are Human Rights”. As Beth observed, they stood up for Islamic and LGBTI communities. They asserted “My Body – My Choice”. There were lots of women – and lots of men (who counter-chanted “Her Body – Her Choice”).


My fellow marchers declared “Water Is Life” and called for “Climate Justice Now”.


The old labor slogan “An Injury to One Is an Injury to All” captured the spirit of this peaceful, cooperative community, pledging ourselves to work for shared values.


IntLawGrrls-pink PussyHats, most knitted by the wearers or their friends, were worn by people of all genders and non-genders.

There were so many of us that we filled the march route and took to other streets so that we could walk.

Updated #s from @dr_pete

Los Angeles: 750K

Washington, DC: 500K

Chicago: 250K

Denver: 200K

New York: 150K+

Seattle: 130K

Boston: 125K

London: 100K

Over and over, as we headed back to the bus for home, strangers smiled, nodded, acknowledged each other and said words to the effect “It was a great day. I’m glad I came. We can’t stop here. We have to keep working on this.”


Good night – sleep well – we have work to do tomorrow, stronger together.

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Updates on Standing Rock/DAPL

Further to post on Standing Rock, two updates:

International – Tribal representatives have been invited to speak at a hearing at the IACHR in Washington, DC on Dec. 9, , 10:15 to 11:15 a.m., on the “Human Rights Situation of Indigenous Persons in the Context of Projects and Extractive Industries in the United States,” at the Padilha Vidal Room (TL Level), GSB Building of the Organization of American States, 1889 F Street, N.W., Washington, D.C. 20006.

U.S. – On Sunday, December 4, 2016, the U.S. Army Corps of Engineers (ACOE) effectively put the pipeline project on hold. It decided not to grant an easement for portions of the DAPL sited on federal land on the current record, noting concerns over environmental justice, withheld information (including risk analysis), the history of dispossession of the Great Sioux Nation, the U.S. Mineral Leasing Act’s direction “to protect the environment, those who rely on fish and wildlife in the area for subsistence, and the public,” and the particular attention to be given to environmental effects of a project on Tribal resources under NEPA (the statute requiring environmental review). The ACOE will prepare an Environmental Impact Statement (EIS) to evaluate these and other issues.

Hillary Hoffman’s blog is a great analysis of some aspects of the ACOE action and domestic law issues.

An excellent analysis of the ACOE action by Jamison Colburn can be found at NEPA Lab.

Standing Rock goes to the Inter-American Commission on Human Rights

image001The Indian tribes protesting the Dakota Access Pipeline (DAPL) took the Standing Rock movement to the Inter-American Commission on Human Rights (IACHR) on Friday, 2 December 2016. The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic – UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR. (Petition links at Stand with Standing Rock website)

The Commission has the authority to,

on its own initiative or at the request of a party, request that a State adopt precautionary measures. Such measures, whether related to a petition or not, shall concern serious and urgent situations presenting a risk of irreparable harm to persons …

The United States is a member of the Inter-American Commission on Human Rights.

The petition makes three central claims:

  • the U.S. Army Corps of Engineers should not grant an easement across federal lands;
  • the United States failed to adequately consult and to prepare an adequate assessment of environmental and social impacts of the pipeline, required under both U.S. and international law; and
  • the United States has failed to protect peaceful protestors.

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New Iran-US Claims Tribunal Judge: Rosemary Barkett

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Rosemary Barkett, 1992. Courtesy The Palm Beach Post

The U.S. State Department recently announced the appointment of Judge Rosemary Barkett as a U.S.-appointed member of the Iran-United States Claims Tribunal in The Hague. The International Center for Ethics, Justice, and Public Life provides a bit more background:

Former Chief Justice of the Florida Supreme Court Rosemary Barkett is leaving the United States federal appeals bench to join the Iran-U.S. Claims Tribunal, based in The Hague. Judge Barkett, who was born in Mexico and previously served as a Catholic nun in the Sisters of St. Joseph, became the first woman Florida Supreme Court justice in 1985. She was also the first female chief justice, from 1992 to 1994. She was appointed as federal judge of the 11th Circuit by President Bill Clinton and took the bench in April 1994.

Françoise Burhenne-Guilmin: In Passing

ImageSadly, Françoise Burhenne-Guilmin has died. She was a tremendously influential figure in international environmental law, through her work on international agreements, her many years as Head of the IUCN Environmental Law Centre, and her contributions to capacity building in this field. From the IUCN tribute:

Françoise was instrumental in drafting and elaborating a number of international conventions, agreements and instruments, such as the African Convention for the Conservation of Nature and Natural Resources, the Convention on International Trade in Endangered Species of Wild Fauna and Flora –CITES; the Convention on the Conservation of Migratory Species of Wild Animals; the World Charter for Nature; the ASEAN Agreement on the Conservation of Nature and Natural Resources; and the Convention on Biological Diversity. Her real passion was the development of technical capacities through access to information on environmental law and policy. That is why already in the 1970s, she initiated the Environmental Law Information System (ELIS), presented at the Stockholm Conference, which over the years evolved into the far more sophisticated online information system ECOLEX, the Gateway to Environmental Law.

Whaling at the ICJ – Oral Proceedings in Australia v Japan

Common Minke Whale Photo By Simon Pierre Barrette Creative Commons ShareAlike License
What had seemed a quixotic effort to stop Japan’s Southern whaling program using international law is looking like a more even fight. In the oral proceedings underway for Australia’s challenge to Japan’s whaling program (JARPA II) at the International Court of Justice, Japan argues that—in a world of more than 7 billion people—cultural differences must be respected and the International Convention on the Regulation of Whaling (ICRW) must be applied with a “margin of appreciation” for Japan’s interpretation of the treaty. (Australia notes that the concept of a margin of appreciation developed in the European Union Courts to allow states to fine-tune EU law according to national culture and social policy, and is not a rule of international law.)

According to Japan, it hunts whales to collect scientific information as permitted by an exception to the global moratorium on “harvesting” whales under the ICRW. Australia argues that JARPA II has no scientific basis or merit, and that Japan conducts it in the manner of a commercial venture, not scientific research; it quotes a statement made in the Japanese Diet vowing to use the scientific exception to continue whaling.

New Zealand, intervening as a party to the ICRW, stresses that the treaty was intended “to replace unilateral whaling with a system of collective regulation,” whether a state’s interest is in using whales or protecting them for their own sake. Japan’s actions, Australia argues, have in effect reduced its treaty obligations to facultative ones and so dissolved the treaty rights of all other treaty members.
Australia has decided not to make claims based on two other conventions, CITES and the Convention on Biodiversity mentioned in its application (for discussion of these, see Don Anton’s ASIL Insight).

The most interesting arguments have discussed the nature of scientific research and its relation to law. Japan argues that “the case concerns the legality of Japan’s activities under international law and not ethical values or the evaluation of good or bad science” and that the ICJ has no role in evaluating JARPA II. It has submitted very little by way of scientific evidence to support the validity or productivity of the whaling program.

In contrast, Australia and New Zealand emphasize that the questions before the Court are straightforward and offer the Court a number of criteria to assess whether JARPA II is scientific research. These include the lack of peer review of JARPA II, the arbitrary determination of sample sizes (i.e., the number of whales to be killed each year), and the insistence on lethal methods. The presentation and cross-examination of experts is a highlight of the video; a great change from the criticized approach to experts in the Pulp Mills case. The judges’ numerous questions indicate that they are interested in the scientific arguments, and not deferential to Japan’s claim of right to determine unilaterally whether JARPA II is, in fact, research.

Although killing whales—particularly endangered species such as humpback and fin whales, both of which are included in Japan’s whaling program—is an issue of grave concern to many states and nongovernmental organizations, only New Zealand has intervened and the ICJ has not invited amicus briefs or expert opinion from non-parties.

The jurisdictional issue has received scant attention. It is possible that the Court may, in the end, accept Japan’s argument that it does not have jurisdiction. While that may change the dynamic of the conflict over whaling, there are still many political avenues where it will continue to play out. Although anti-whaling activists have thwarted the whalers in recent years—acknowledged in the Japanese oral argument—Japan’s Institute of Cetacean Research has retaliated with a lawsuit in U.S. court and won a favorable decision in the 9th Circuit.

A decision is expected from the ICJ by the end of the year around the time the next whaling season will begin. The oral proceedings will continue with Japan’s second round of oral argument on 15 July: live and archived webcasts and transcripts are available. It provides an exceptional opportunity to watch many of the great international litigators, including Laurence Boisson de Chazournes, at work.