Biography |
Current Research |
Selected Publications |
Teaching/Taught
Current Research
As an international lawyer, I study the demand (or lack thereof) for global governance of the environment and natural resources and the consequent evolution of international law. My research focuses on the problems faced in addressing climate change, building peace after armed conflict, and managing ocean resources.
Legal Liability Rules as Orders, Disincentives, Punishment, and Compensation
I provided written and oral submissions to the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (the Chamber) on behalf of the International Union for Conservation of Nature (IUCN), proposing an approach to a new international governance problem: the management of deep seabed resources. The International Seabed Authority asked the Chamber to address certain aspects of state responsibility and liability for deep seabed mining in the areas of the ocean beyond national jurisdiction. I argued that the Law of the Sea Convention itself had contributed to the developmental shift from treatment of high seas resources as res nullius (a thing belonging to no one) to being considered the common heritage of humanity. This status requires the international community to manage the marine environment for the benefit of all. The Chamber’s Advisory Opinion agreed that the international community has a shared interest in the ocean’s resources. Further work will continue to examine how liability rules function to set expectations of behavior, discourage risky activities, punish bad actors and compensate injured parties.
Judges Facing Complexity
Recent cases support the contention that international courts are failing to give adequate consideration to complex scientific evidence, and in consequence their decisions may be inconsistent with principles such as the equitable use of transboundary water resources. For example, some International Court of Justice judges criticized their colleagues’ handling of expert testimony in a dispute between Argentina and Uruguay over industrial development on a shared river. Providing the assistance of experts to judges is a possible solution, but efforts to provide such assistance have not been particularly successful so far. This project examines the experience of other international courts, the U.S. federal courts and the efforts of the American Association for the Advancement of Science, and looks at the views, training and experience of the judges themselves to better define the problem and identify effective measures that could be taken.
Legal Institutions and Post-Conflict Environmental Restoration
I evaluate the United Nations Compensation Commission as a landmark example of the evolution that is taking place in international law. The United Nations Compensation Commission (UNCC) reviewed almost 3 million claims for war reparations from more than 80 countries. Of that, the Commission awarded over $5 billion for the restoration of the environment: oiled shorelines, loss of wildlife and livestock, damage to desert ecologies and and harm to public health.
In the book “Gulf War Reparations and the UN Compensation Commission: Environmental Liability” (CR Payne & PH Sand, eds., Oxford University Press 2011), I argue that the UN Security Council created a need for legal concepts that were almost unknown in previous eras when it introduced environmental damage and natural resource depletion directly resulting from the 1991 Gulf War as one of the categories of losses within the jurisdiction of the Commission. These decisions, the first in international law to recognize state responsibility for war damage to the environment, have contributed fundamentally to the evolution of international norms and legal principles. With Peter H. Sand and other contributors to the book, I identify several principles—polluter pays, the public trust doctrine and compensability of non-market environmental damage—that emerged from their origin as soft law principles, evolved into applied rules, and resulted in the real-world consequence of financial awards by the UNCC. I also show how the flexibility of the UNCC as an international institution enabled it to accommodate special needs of the environment and respond to the shared vision of the participants on behalf of the transboundary environment.
In the “Strengthening Peacebuilding” project for UNEP/Environmental Law Institute/University of Tokyo, I take a different perspective on the UN Compensation Commission and its decisions. I evaluate the UNCC as an instrument of reparations and post-conflict restoration. While noting the limitations on re-establishing peace and environmental integrity in the conflict zone, I conclude that the UNCC demonstrates that states can be held accountable for war-time damage to the environment under international law, and that it illustrates the benefits of multilateral engagement and long-term commitment to environmental restoration. Future work will further explore the effectiveness of such formal legal institutions in strengthening peace building.
