IntLawGrrls |
- Guest Blogger: Betsy Baker
- International law & new U.S. ocean policy
- The Bombing of Claudy in 1972: Report of the Police Ombudsman of Northern Ireland
- On August 25
| Posted: 25 Aug 2010 03:45 AM PDT  It's IntLawGrrls' great pleasure to welcome Dr. Betsy Baker (left) as today's guest blogger.Betsy is an Associate Professor and Senior Fellow for Oceans and Energy, at the Institute for Energy and the Environment of Vermont Law School, home institution of IntLawGrrl Stephanie Farrior. Betsy teaches in the comparative law and international organizations curriculum, with emphasis on her area of special expertise -- the environment, law of the sea, and the Arctic. She served as a 2009-2010 Research Fellow at Dartmouth College's Dickey Center for International Understanding and Institute of Arctic Studies. She's also been a member of the science crew of the Healy, the U.S. Coast Guard's newest polar icebreaker, on deployments for State Department-sponsored mapping of the United States' Extended Continental Shelf in the Arctic Ocean. Betsy operates her own blog, entitled Arctic Mapping and the Law of the Sea. She earned doctoral and master of laws degrees from Christian-Albrechts-Universität zu Kiel; while in Germany, she worked as legal historian at the Heidelberg Academy of Sciences and was affiliated with the Max Planck Institute for Comparative Public Law and International Law. Betsy, who clerked for Judge John T. Noonan, Jr., U.S. Court of Appeals for the Ninth Circuit, also holds a J.D. from the University of Michigan and B.A. from Northwestern University. She was a Lecturer on Law and Assistant Dean for the Graduate Program and International Legal Studies at Harvard Law School before joining Vermont's faculty in 2007. In addition to these SSRN-posted publications, Betsy's scholarship includes examinations of proposals for Canadian-US cooperation in maritime issues and the law-science interface in environmental treaties and legislation. In her guest post below, she considers the newly announced U.S. ocean policy in light both of international law and the oil spill off the Gulf of Mexico. Heartfelt welcome!  |
| International law & new U.S. ocean policy Posted: 25 Aug 2010 02:24 AM PDT (Thanks to IntLawGrrls for the opportunity to contribute this guest post)  International lawyers measure change over the course of human events, believing we might even shape both the change and the events. Geologists think differently.In geologic time 65 years barely register. In international law they take us from the September 28, 1945, Proclamation on the Continental Shelf, issued by President Harry S. Truman, to the July 19, 2010, Executive Order No. 13547 on Stewardship of the Ocean, Our Coasts and the Great Lakes, issued by President Barack Obama. Delayed a few weeks by the fatal explosion and aftermath at the Deepwater Horizon oil rig in the Gulf of Mexico (prior IntLawGrrls posts), the latter order adopts a task force's recommendations, establishes a National Ocean Council, and proclaims a national ocean policy. At long last the United States has a national ocean policy. Will it make a difference? Did the Truman Proclamation? Why consider documents of domestic executive power in a forum for international law? For one, the Truman Proclamation memorialized this country's once and future reliance on hydrocarbons and, for better or worse, it has shaped international law. It introduced the idea that the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it,and called for settling overlapping shelf claims by "equitable principles." Via the 1969 judgment of the International Court of Justice in North Sea Continental Shelf, the 1945 Proclamation led negotiators to include the conept of "natural prolongation" in how to define the continental shelf under Article 76(1) of the U.N. Convention on the Law of the Sea. Geoscientists worldwide have learned to work with this legal construct and non-geologic definition of the shelf as they gather data that undergird national submissions to the Commission on the Limits of the Continental Shelf. Other parts of the Truman Proclamation have been less influential in international law. Perhaps, post-Deepwater Horizon, their time has come. Filtered through intervening years and changed understandings of resources (not just for exploitation any more) and their role in larger social or eco-systems, the Proclamation might be applied in powerful new ways. It states: [S]elf-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources.Yes, the focus is on utilization, and the environment goes unmentioned, but this is not surprising. It was, after all, only 1945. If international environmental and ocean law have accomplished anything since 1945, they've made clear the duty of states. To quote Article 192 of the Law of the Sea Convention: States have the obligation to protect and preserve the marine environment.The Convention further calls for: protecting fragile ecosystems/endangered species habitats, in Article 194; contingency plans against pollution, in Article 199; and monitoring risks of pollution and assessing potential effects of activities on the marine environment, in Articles 204 and 206. Article 208 requires states to adopt rules to "prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction," which shall be "no less effective than international rules, standards and recommended practices." As IntLawGrrl Rebecca Bratspies has posted, regulations promulgated pursuant to the United States' Outer Continental Shelf Lands Act require shutdown of offshore operations if there exists a threat of serious, irreparable or immediate harm or damage to life ... or to the marine, coastal or human environment.To quote the Truman Proclamation, what "activities off our shores" are necessary today for resource use in the ocean's subsoil and seabed? What future uses should we promote? How to define "self-protection"? In issuing his Stewardship order last month, President Obama answered these questions by embracing one big idea: coastal and marine spatial planning, defined in § 3(b) of that Executive Order as a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.This big idea lets stakeholders decide, region by region, what to allow off their shores. In this and other ways, the national ocean policy reflects developments in international law since the Truman Proclamation. The Executive Order states that it is U.S. policy to "support sustainable, safe, secure and productive access to, and uses of the ocean, our coasts, and the Great Lakes" and to "exercise rights and jurisdiction and perform duties in accordance with applicable international law." The United States is to promote this policy by "pursuing ... accession to the Law of the Sea Convention." The order doesn't mention the precautionary approach. But the Final Recommendations of the Interagency Ocean Policy Task Force, which the order adopts, do. Specifically, the Recommendations list the precautionary approach as one of the "Principles" that will guide "management decisions and actions affecting the ocean" (p. 15) and planning for achieving coastal and marine spatial planning (p. 49). Principle 15 of the Rio Declaration is quoted both times, for example: Decision-making will also be guided by a precautionary approach as reflected in the Rio Declaration of 1992, which states ... '[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.'Appendix C of the Recommendations summarizes public comments about the "precautionary approach" and "precautionary principle" (prior IntLawGrrls posts), the latter of which the United States has consistently declined to apply. To cite one example, the temporary ban on commercial fishing in the 2009 Fishery Management Plan for the U.S. Arctic invoked the precautionary approach. The Recommendations contain another "principle"; that is, that the country should cooperate and provide leadership internationally in the protection, management, and sustainable use of the world's ocean [and] coastal regions, ... in keeping with applicable conventions and agreements, and with customary international law, as reflected in the Law of the Sea Convention.(p. 17) In implementing the policy, the new National Ocean Council is to coordinate with the Secretary of State and the heads of other relevant agencies(p. 22) These are just some references to international law and cooperation in the national ocean policy and the Recommendations. The United States has helped shape in the international arena some of the concepts that have in  turn been adapted for national use in the new U.S ocean policy -- sustainability, coastal and marine spatial planning, large marine ecosystems, and ecosystem-based management among them. Whether that policy will shape international law in the next 65 years, to the extent the Truman Proclamation has in the last, remains to be seen.First, we need to work on how the new policy will shape our response to the Deepwater Horizon incident.  |
| The Bombing of Claudy in 1972: Report of the Police Ombudsman of Northern Ireland Posted: 25 Aug 2010 01:12 AM PDT  In 1972 the small Derry town of Claudy was devastated by the explosion of three car bombs by the IRA, causing the death of nine people and injuring thirty more. Information was made available shortly afterwards to the Royal Ulster Constabulary (RUC) suggesting the involvement of a Catholic priest, Fr James Chesney, in the bombings. Perhaps understandably, given the incredibly volatile situation existing in Northern Ireland at the time, a political approach was made to the Roman Catholic Church informing them of the suspicions against Fr Chesney. The Church's response was to speak to F. Chesney (who, it appears, denied involvement), and move him to a parish in Donegal within the Republic of Ireland. Fr Chesney, who died in 1980, was never again placed in a parish in Northern Ireland, the police investigation into his involvement was never followed up, and nobody has ever been charged in relation to the bombing of Claudy.Yesterday the Police Ombudsman for Northern Ireland released his report in to the handling of the Claudy investigation by the RUC. Working within his remit--of considering whether there was police misconduct--the Ombudsman concluded that the investigation was deficient for its failure to pursue a line of questioning and investigation that would have either confirmed suspicions or resulted in Fr Chesney being eliminated from the investigation. This report has resulted in accusations of a Roman Catholic 'cover up' of Fr. Chesney's involvement and denial of same by the Cardinal of All Ireland, Fr. Séan Brady (Irish Times editorial). It has also resulted in an apology from the British government to the people of Claudy for the deliciency of the investigation and raised questions, as I noted here, of compliance with the investigation obligation in Article 2 (right to life) of the European Convention on Human Rights. It is to be assumed that moving Fr Chesney to a parish in Donegal did not, of itself, prevent the issuance of an arrest warrant against him. Indeed, although there is quite a substantial amount of criticism of the Church's role in this investigation (perhaps primarily because of revelations in Ireland about the extent to which the Church hierarchy covered up clerical child sex abuse), it does seem to me that the Church did not substantially impede police investigation. Whether they would have done so had the RUC determined to arrest Fr Chesney (and, indeed, whether the Irish government would have extradited him to Northern Ireland if charged) is a different question in relation to which only conjecture is possible. What is really striking about the revelations in the Ombudsman's report is the extent to which politics played an important--if not determinative--role in the manner in which atrocities in Northern Ireland were investigated. Unlike in cases of collusion with Loyalist/Unionist paramilitary organisations which I have written about here on IntLawGrrls before, the decision about Claudy seemed to be motivated not by a desire for a cover-up but rather by an appreciation of the immense ramifications arrest of a Catholic priest for IRA involvement would have had in 1972 Northern Ireland. Indeed, the Ombudsman himself noted the possible political motivations for this course of action yesterday. The reality, however, is that however and why-ever motivated the decision to cut off an important and seemingly viable line of investigation into the bombing was a flagrant breach of the rights (and, indeed, the needs) of the deceased and their families; families that, as evidenced by their interaction with the media yesterday, remain deeply and profoundly affected not only by their loved ones' deaths but also by the RUC's failure to fully pursue the perpetrators of the attack.  |
| Posted: 25 Aug 2010 01:04 AM PDT  On this day in ...... 1942, Margaret Thompson Murdock was born in Topeka, Kansas. She would become the 1st woman to compete equally with men in an Olympic sport. After graduating from Kansas State University in 1965, she joined the Women's Army Corps -- and the Army's Marksmanship Training Unit at Fort Benning, Georgia. "[A]ffectionately known as 'The WAC' by her teammates," she soon become the 1st woman to "set an internationally recognized world record above the men's mark – in any sport" – when she won the gold medal (right) in a smallbore shooting event at the 1967 Pan-American Games in Winnipeg, Canada. (photo credit) At her 1st Olympic Games, 9 years later in Montreal, she and a male athlete initially tied for 1st place, but on further examination of the targets he was awarded gold; even so, Murdock's Olympic silver medal was the 1st for a woman shooter. She earned a nursing degree a year later, and became a nurse anaesthetist, in addition to being a competitive shooter, (Prior August 25 posts are here, here, and here.)  |
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