Graduate Notes
Unraveling Accountability: Contesting Legal and Procedural Barriers in International Toxic Tort Cases, Mary Elliot Rollê
Korea ’s Leading Role in Joining the Kyoto Protocol with the Flexibility Mechanisms as “Side-Payments,” Sangmin Shim
Notes
Water Export Restrictions: A Case Study of WTO Dispute Settlement Strategies and Outcomes, Robert J. Girouard
Stalemate in the Aral Sea Basin: Will Kyrgyzstan’s New Water Law Bring the Downstream Nations Back to the Multilateral Bargaining Table?, Gregory E. Heltzer
A Stitch in Time: Addressing the Environmental, Health, and Animal Welfare Effects of China’s Expanding Meat Industry, Betsy Tao
Graduate Note
Unraveling Accountability: Contesting Legal and Procedural Barriers in International Toxic Tort Cases
By Marry Elliott Rollê
This paper explores the problems caused by toxic industrial accidents caused by corporations acting in foreign states without the oversight of developed nations. In the first section, the author outlines existing domestic solutions to the problem and pays particular attention to U.S. toxic tort law. This section also examines the comparability between similarly situated states and the disparity between developed and developing state systems. In the second section, the author outlines procedural barriers that enable corporations to avoid liability, including the doctrine of forum non conveniens, the corporate veil, and choice of law rules. This section also looks at attempts by plaintiffs to reach tortfeasors through other ways, such as the application of domestic law to foreign torts. The third section of the article provides an overview of existing regional and public international law solutions, including treaties, agreements, and customary obligations. The fourth and final section concludes that private international law should cover the actions described in this paper through a universal toxic tort scheme and the creation of an international civil court.
Graduate Note
Korea ’s Leading Role in Joining the Kyoto Protocol with the Flexibility Mechanisms as “Side-Payments”
By Sangmin Shim
This paper examines the potential of flexibility mechanisms as incentives for Korea’s participation in the Kyoto Protocol, using Korea as a case study that other developing nations may use as a template in deciding their positions on climate change. The note begins by outlines when flexibility mechanisms are most likely to succeed, exploring the United States’ use of tradable pollution permits as an example. The next section describes flexibility mechanisms and their potential to be used as side-payments. The author then discusses four of the flexibility mechanisms’ shortcomings: “hot air,” supplementarity, the changed U.S. position on the Kyoto Protocol, and the expansion in sinks. In the next section, the author uses interviews with Korean policy-makers in the environmental and industrial fields to form an assessment of Korea’s position regarding the flexibility mechanisms and the country’s prospects for participating in the Kyoto Protocol. The note then suggests some revisions to the flexibility mechanisms to increase their likelihood of success. The next section outlines a strategy for Korea’s participation in the Kyoto Protocol. The final section concludes that the modified flexibility mechanisms proposed in the note will act as sufficient side-payments for Korea and other developing countries to joint he global effort against climate change.
Note
Water Export Restrictions: A Case Study of WTO Dispute Settlement Strategies and Outcomes
By Robert J. Girouard
This note analyzes the problem of whether a World Trade Organization (WTO) member may restrict exports of its natural surface water for conservation reasons without violating its substantive obligations under the General Agreement on Tariffs and Trade (GATT). The author begins by examining literature on the North American Free Trade Agreement (NAFTA), since this literature comprises the only scholarly authority on the question of whether water export restrictions violate GATT rules. The author describes shortcomings in the NAFTA literature’s analysis of the GATT rules that apply to water export restrictions and explains why WTO disputes implicate unique dispute settlement issues that are not brought up by NAFTA. The next section of the note examines how the GATT addresses export restrictions on natural resources, eventually rejecting a mode of analysis adopted by some NAFTA commentators examining whether water is a “product” or “good” under a system of commodity descriptions. The author then evaluates for alternative approaches to the water export question. In the next section of the note, the author describes the possible outcome of a dispute over a WTO member’s export restriction on surface water if it were formally adjudicated by the WTO. This section discusses how intergovernmental organizations can supply principles to help resolve a dispute over a WTO member’s quantitative restriction on water exports. In the final section of the note, the author describes the advantages of resolving a dispute over quantitative restrictions on water exports in a non-adversarial forum, such as diplomatic negotiation in the WTO’s Committee on Trade and Environment, formal consultation under the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes, and arbitration by a tribunal applying the Permanent Court of Arbitration’s Optional Rules for the Settlement of Natural Resources and Environmental Disputes.
Note
Stalemate in the Aral Sea Basis: Will Kyrgyzstan’s New Water Law Bring the Downstream Nations Back to the Multilateral Bargaining Table?
By Gregory E. Heltzer
This note examines the unique problems of water management in Central Asia in the wake of the collapse of the Soviet Union. The author’s primary focus is on the possible outcomes of recent politicking over payment for water in the region between upstream and downstream nations. The first section of the note analyzes the causes of the current state of water affairs in Central Asia and looks at how the policies of the former Soviet Union shape the issues Central Asia faces today. The next section of the note examines whether water can be treated as an economic good under international law. The author then analyzes Kyrgyzstan’s new water law, which charges a few for water rather than bartering for water, and its effect on regional discussions. The final section of the note looks at possible future outcomes as a result of pursuing water fees in Central Asia.
Note
A Stitch in Time: Addressing the Environmental, Health, and Animal Welfare Effects of China’s Expanding Meat Industry
By Betsy Tao
This note argues that China should be concerned about the rise of factory farming within its borders and makes suggestions for regulatory and policy changes. The author begins by examining the current state of the Chinese meat industry and discusses why meat consumption among the Chinese population is increasing. The author then conducts a comparative study of factory farming in the United States and China, identifying the ways in which intensive U.S. farming practices have proven harmful, examining the various costs that have been externalized by the industry, and assessing the impacts of the current trend in China towards more meat intake and factory farming to support this demand. The note then describes animal welfare issues associated with factory farming. In the subsequent section of the paper, the author examines the legal protection of animals in the United States, listing some existing regulations passed to protect their welfare as well as their limitations, to provide a lesson for China as it crafts its own laws governing animal welfare. The note concludes by suggesting ways forward on both the national and international fronts.
