Articles
Ibsen’s An Enemy of the People and the Public Understanding of Science in Law, David S. Caudill
From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development, Alhaji B.M. Marong
Is There a Legal Future for Sustainable Development in Global Warming? Justice, Economics, and Protecting the Environment, Todd B. Adams
Notes
When the Logs Roll Over: The Need for an International Convention Criminalizing Involvement in the Global Illegal Timber Trade, Rudy S. Salo
Turning Our Backs: Kyoto’s Mistaken Nuclear Exclusion, Timothy J.V. Walsh
You Say Yes, I Say No; Defining Community Prior Informed Consent under the Convention on Biological Diversity, Laurel A. Firestone
Article
Ibsen’s An Enemy of the People and the Public Understanding of Science in Law
By David S. Caudill
As modern technology becomes increasingly complex, trial judges without any scientific training are often left to make determinations about the efficacy of expert testimony or the validity of experiments, studies, or methodology in areas that they know little or nothing about. The Supreme Court has created a four factor test for judges to use in evaluating the validity of the science used in trials called the “Daubert standard,” which courts and academics have struggled to clarify. Many critics subscribing to the deficit model of understanding idealize science without further investigating its local influences, and tend to believe that a lack of scientific knowledge leads to misinformed, inferior decision making by judges in trials. However, using Ibsen’s play An Enemy of the People as a point of reference, this article argues that judges, acting as “the public,” actually use a diverse and wide-ranging body of knowledge including but also beyond strict science to make informed judgments about the quality of the science being used by each side at trial. The author also uses Ibsen’s play and recent studies in PUS- public understanding of science- to further his assertion that judges act as the public and show that issues the public has in dealing with science are analogous to issues judges face in the courtroom. Some of these issues include credibility problems and trust concerns. The parallels drawn between judges and “the public” further highlight the importance of finding the correct place for science in law.
Article
From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development
By Alhaji B.M. Marong
As nations grow exponentially and concerns rise about the natural resources needed to bolster this growth, the idea of “sustainable development” has become a popular phrase to describe a desired method of structured expansion. Sustainable development pictures a merging of environmental concerns with recognition of human needs in order to grow countries that will not decimate local or international natural resources. However, a unanimously agreed upon set of principles and goals to achieve sustainable development has not been so easy to come by. Many commentators focus on the role of nation-states and the organized international community in this process. Some even consider its implementation to have become customary international law.
This article traces the history of the concept of sustainable development, going back as far as the practice of ancient tribes the world over, and more coming into a more concrete form starting in 1893 when the United States was arguing against unrestrained hunting of fur seals in the Pacific. The author traces this line of thought into the present day to emphasize the role of not only states and indigenous tribes, but also non-state actors such as the International Union for the Conservation of Nature. The United Nations has also played an important role in the proliferation of this ideal. The author then argues that sustainable development should mean the equal and non-hierarchical pursuit if three objectives stipulated by the World Summit on Sustainable Development in Johannesburg: economic development, social development, and environmental protection; and also examines other perspectives on this issue. While sustainable development has become widely hailed as the proper framework for discussing developmental issues, the author then asserts that these principles have not yet risen to the level of binding legal obligations. A set of principles is then laid out for states to use in the developmental decision-making process, including the precautionary principle and public participation models, for the most effective implementation of sustainable development.
Article
Is There a Legal Future for Sustainable Development in Global Warming? Justice, Economics, and Protecting the Environment
By Todd B. Adams
This note explores the role of sustainable development in early efforts aimed at addressing global warming, finding limited success, yet offering more prescriptive measures. The author examines the common law and natural law roots of sustainable development and traces their development into mechanisms used in the Kyoto Protocol. He finds that sustainable development and the cap-and-trade system in the Kyoto Protocol alone are insufficient to protect the environment. International agreements on sustainable development in global warming are further compounded by differing cultures’ interpretations of justice, intergenerational equity, and shared responsibility. Adams concludes that the cap-and-trade system should be expanded to cover every country, even if to do so means less ambitious emissions limits than currently envisioned.
Note
When the Logs Roll Over: The Need for an International Convention Criminalizing Involvement in the Global Illegal Timber Trade
By Rudy S. Salo
This note argues that the world should adopt an international convention criminalizing involvement in the global illegal timber trade. The author examines the negative implications of illegal timber harvesting and trade, which include the destruction of ecosystems, reduced productivity in sustainable forestry, financial support for warring factions, human rights abuses, indigenous land theft, and exploitation by terrorist organizations. Case studies provide an illustration of the illegal timber trade in 1970’s Cambodia and current day Sierra Leone and Liberia.
Salo calls for a comprehensive international convention to address the illegal timber trade in light of similar efforts to restrict the trade of conflict-diamonds and unilateral failures by nations seeking to impose import restrictions on illegal timber. The proposed convention should balance sovereignty interests with recognition that forests are integral to the global commons. Demand for legally produced logs should be increased, while both corporations and individuals should be held criminally liable for illegal harvesting and trade. Salo concludes that these measures are key to any effective international effort aimed at curtailing the global illegal timber trade.
Note
Turning Our Backs: Kyoto’s Mistaken Nuclear Exclusion
By Timothy J.V. Walsh
This note criticizes the Kyoto Protocol’s failure to include nuclear energy as an option for nations seeking to reduce their greenhouse gas emissions. While the Protocol permits countries to use other forms of emission-free technologies to achieve their emissions targets, it excludes countries from crediting the construction of new nuclear power-plants at home and abroad towards their emissions reductions. The author recognizes many of the criticisms of nuclear energy, but stresses that it has the potential to serve as the largest source of emission-free energy. Walsh explores the role nuclear technology can play in two mechanisms established by the Protocol: Joint-Implementation projects and the Clean Development Mechanism. In looking toward the future, he notes that representatives at the recent Johannesburg World Summit on Sustainable Development have left the door open for nuclear energy in future climate change mitigation strategies. Walsh concludes that any future climate change strategy must allow for nuclear energy inclusion if the world hopes to seriously combat global warming.
Note
You Say Yes, I Say No; Defining Community Prior Informed Consent under the Convention on Biological Diversity
By Laurel A. Firestone
The Convention on Biological Diversity (CBD) heightens tensions between local, indigenous communities and national governments through its focus on the “fair and equitable sharing” of the benefits that stem from biodiversity. This article addresses the power struggle that results from the CBD and proposes specific recommendations to address the ensuing challenges, with particular focus on the prior informed consent (PIC) requirement. The CBD itself does not provide any substantive legal remedies to indigenous peoples trying to assert their rights over genetic resources and traditional knowledge, so state governments are responsible for devising appropriate policies elaborating the prior informed consent process envisioned by the CDB.
This article examines PIC as a mechanism for empowering local communities’ participation and decision-making under the CDB. It proposes recommendations regarding the roles of government bodies in addressing the challenges to community empowerment over traditional knowledge and genetic resources, including specific substantive disclosure requirements, procedural rules, oversight, and enforcement of PIC.
