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ITLOS Advisory Opinion on Climate Change: Summary of Briefs and Statements Submitted to the Tribunal
Get PDFThis report provides a summary of the briefs and statements submitted to the International Tribunal for the Law of the Sea (ITLOS) in response to the Co-Chairs of Commission of Small Island States (COSIS)’ request for an advisory opinion on climate change-related legal questions. The central issue before the ITLOS is whether State Parties to UNCLOS have specific obligations regarding the prevention, reduction, and control of marine environmental pollution stemming from climate change, as well as the protection and preservation of the marine environment concerning climate change impacts. While States and civil society organizations have put forward a variety of arguments in their briefs and statements, they mostly relate to three pivotal aspects of international maritime law: (i) ITLOS’ jurisdiction and ability to issue an advisory opinion on climate change, (ii) the definition of marine pollution under UNCLOS, and (iii) the responsibilities of States in the context of climate change under the UNCLOS.
Authors: Ahmed Mohammed Abdelsalam, Sabah Ahmed, Maria Jose Alarcon, Irene Antonopoulos, Jorge Alejandro Carrillo Bañuelos, Valeria Berros, Juan Sebastián Castellanos, Asteropi Chatzinikola-Iliopoulos, Moumita Das Gupta, Antoine De Spiegeleir, Fernand Guevara Mekongo Mballa, Millie John-Pierre, Isabella Kiechle, Jan-Baptist Lemaire, Sol Meckievi, Milagros Mutsios-Ramsay, Yumeno Grace Nishikawa, Natalia Urzola, Ademola Oluborode Jegede, Zunaida Moosa Wadiwal
Appropriation and the Rewriting of Rights
No full textThe protective reach of human rights has expanded over time. However, some have argued that this expansion constitutes illegitimate rights inflation, and for some conservative stakeholders, the modern development of rights has been at odds with their positions on issues such as reproductive rights and marriage equality. Against this backdrop, the Trump Administration launched the Commission on Unalienable Rights in 2019 to “reexamine” rights. It might be expected that such an initiative would reject human rights. However, it embraced rights discourse, positioned it as central to US values and policy, and called on the United States to pursue rights with “renewed vigor.” This article offers a decoding of this apparent embrace. We argue that rather than renewing commitments to rights, the Commission appropriated human rights. It reworked the human rights canon from within by elevating some rights over others, and by narrowing rights in line with conservative takes on where rights come from, who they should protect, and which rights matter. This article offers a framework for analyzing how appropriation happens, and where and in what ways it is contested. We identify four core elements to appropriation and spaces for challenging it: messenger and motive legitimacy; process legitimacy; substantive legitimacy; and norm diffusion. This framework makes visible the sites and processes of appropriation under the cover of protecting rights, that in practice seek to roll back understandings of right and their sources. While the Commission was disavowed by the subsequent US administration, conservative efforts to redefine rights are ongoing — including through promotion of the Commission’s work — and share many of the same normative underpinnings of the Commission’s establishment and rollout. Making apparent the strategies and mechanisms of appropriation through this case-study therefore enables recognition of future conservative moves to appropriate rights and provides insights into how to resist such efforts
Europe\u27s Digital Constitution
Get PDFThis Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that portrays the European Union as a powerless bystander in a digital world dominated by the United States and China. By offering both a normative defense and a nuanced criticism of Europe’s digital constitution, the Article contributes to ongoing scholarly debates on whether digital regulation compromises innovation and technological progress and whether governments or tech companies take precedence in governing digital societies. It also asks whether the United States should welcome EU regulation of U.S. tech companies as exerting a positive externality protecting the digital rights of American citizens or resent it as imposing a negative externality that compromises the U.S. government’s democratic right to regulate — or refrain from regulating—its own tech companies. This Article also examines whether Europe’s digital constitution is fit for the current era of tech wars and geopolitical conflict or if the pursuit of European “digital sovereignty” ought to be woven into its tenets — even if such an evolution would risk veering Europe towards digital protectionism and further enshrining techno-nationalism as a global norm
Family Law for the One-Hundred-Year Life
Get PDFFamily law is for young people. To facilitate child rearing and help spouses pool resources over a lifetime, the law obligates parents to minor children and spouses to each other. Family law’s presumption of young, financially interdependent, conjugal couples raising children privileges one family form — marriage — and centers the dependency needs of children.
This age myopia fundamentally fails older adults. Families are essential to flourishing in the last third of life, but the legal system offers neither the family forms many older adults want nor the support of family care older adults need. Racial and economic inequities, accumulated across lifetimes, exacerbate these problems. Family law’s failures are particularly pressing in light of a tectonic demographic shift underway in our society: Americans are living longer, with half of all five-year-olds today projected to live more than one hundred years. The proportion of older adults as a percentage of our population is also rapidly growing and will soon surpass that of minor children.
This Article argues that family law must adapt to the new old age. At a conceptual level, family law should address the interests and needs of families across the life span, not just those of younger people. And it must reflect three core commitments: centering the autonomy interests of older persons, addressing structural inequities, and ensuring that legal mechanisms are efficient and accessible.
This conceptual shift leads to a series of practical reforms to laws governing family formation and family support. The interests of older adults will be better served if they have access to a broader array of family forms and can easily customize these family relationships. We thus propose reforms that decenter marriage as the primary option and make it easier to opt into and out of legal obligations. To support the familial caregiving that is essential to wellbeing, we propose a set of reforms to federal, state, and local laws that would provide economic relief and other support to family caregivers. By offering pluralistic family forms, better support for familial caregiving, and an appreciation of the legal implications of the centrality of relationships in the last third of life, this Article charts a path for family law for the one-hundred-year life
Carajás Corridor in Brazil: Could an SEA Have Reconciled Shared-Use Infrastructure and Environmental Protection?
No full textThe 998km Carajás railway corridor connects the world’s largest iron ore mine, operated by private mining company Vale S.A. (Vale) in Brazil’s northern state of Pará (PA), to the company’s maritime terminal in São Luís, the capital of the northeastern state of Maranhão (MA). Carajás is one of the few integrated railway corridors financed by a mining company that, apart from transporting the iron ore that made the infrastructure investments viable, also transports general cargo and operates passenger services along the corridor. This corridor was born from the Brazilian government’s plans in the mid1950s that foresaw the iron ore reserves of Carajás to be among the anchor investments to develop agriculture and industrial production in the Amazon region and help attract migrants from other parts of the country. As such, third-party access (i.e. shared use174) to infrastructure investments was a fundamental part of the regional development plans. When these plans were created, environmental and social considerations of those living within and beyond the corridor’s region played a secondary role, which helps explain the conflicts that can still be observed along the corridor and the impacts in other parts of the country (Brauch et al., 2020) (see Section 20.1.) The Carajás corridor has facilitated enormous economic development for this otherwise very poor region of Brazil, but at a high environmental risk for an environmentally sensitive area. Neither Environmental Impact Assessments (EIAs) nor Strategic Environmental Assessments (SEAs) were undertaken. The industries that were attracted are the most prone to engaging in deforestation: large-scale farming and pig iron factories fuelling themselves with charcoal. In addition, apart from municipalities hosting mining activities or port operations at the end points of the corridor and certain urban centres along the corridor, the development indicators of smaller and poorer municipalities along the corridor have not improved more than outside the corridor. Among communities in those smaller and poorer municipalities, there is widespread perception of the negative environmental impacts of the railway corridor, including air, noise, soil and water pollution. Perceived environmental problems resulting from the corridor were again evidenced throughout the recent expansion and duplication of the tracks of the Carajás railroad (Brauch et al., 2020) (see Section 20.2.) This state of affairs begs the following questions. Was the environmental cost worth it? Could a rigorous SEA framework have led to better environmental outcomes? We answer these questions in Sections 20.3 and present our conclusions in Section 20.4
BU S3E0
No full textPhoto of Eric Talley, Isidor and Seville Sulzbacher Professor of Law at Columbia Law School.https://scholarship.law.columbia.edu/beyond_unprecedented_podcast/1031/thumbnail.jp
CRT2 S1E2
No full textPhoto of Dorothy Roberts, George A. Weiss University Professor of Law and Sociology and the Raymond Pace and Sadie Tanner Mossell Alexander Professor of Civil Rights at the University of Pennsylvania Law School.https://scholarship.law.columbia.edu/crt2_podcast/1007/thumbnail.jp
CRT2 S1E4
No full textPhoto of Athena Mutua, Professor of Law and Floyd H. & Hilda L. Hurst Faculty Scholar at the University at Buffalo School of Law.https://scholarship.law.columbia.edu/crt2_podcast/1013/thumbnail.jp
CRT2 S1E7
No full textPhoto of Stephanie Cooper, Vice President of Rise St. James.https://scholarship.law.columbia.edu/crt2_podcast/1016/thumbnail.jp
When Judges Were Enjoined: Text and Tradition in the Federal Review of State Judicial Action
Get PDFIt is virtually a tenet of modern federal jurisdiction that judges, at least when they are acting as judges, are inappropriate defendants in civil suits. Yet on rare but salient occasions, state judges might be the sole or primary party responsible for violating the constitutional rights of citizens, for instance by imposing excessive bail or by opening their courtrooms to oppressive private suits like those under Texas’s Senate Bill 8 bounty regime. In such cases, injunctive relief against judicial officers may be the only or most effective remedy against constitutional violations, but federal courts from the trial level up to the Supreme Court treat state judges as if they are immune to suits seeking prospective relief.
This practice is at odds with both the text of 42 U.S.C. § 1983 and the modern history that gave rise to it. Relying on archival investigation, extensive legislative history, and a broad canvass of federal court litigation, this Article seeks to clarify the circumstances in which state judges can be enjoined under Section 1983. In the 1984 case of Pulliam v. Allen, the Supreme Court recognized a cause of action for prospective relief against judges, spurring Congress to eventually amend the text of Section 1983 itself. While numerous courts and commentators continue to suppose that Congress’s amendment overruled Pulliam, we show that the amendment actually codified Pulliam’s core holding. By returning to the plain meaning of Section 1983’s text, we argue that particularly vexing problems like bounty statutes and bail abuses can be directly restrained by prospective relief against state judges in appropriate cases