Beyond Voluntary Corporate Social Responsibility: Corporate Human Rights Obligations to Prevent Disasters and to Provide Temporary Emergency Relief

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that may precipitate a disaster. Additionally, corporations are often well-placed to provide temporary emergency relief during disaster. This Article suggests there may be a legal duty for corporations to temporarily protect the fundamental human rights of communities during a disaster until government-organized relief is available

Climate-Change Related Non-economic Loss and Damage and the Limits of Law

This article examines the concept of “loss and damage” in a world where climate impacts are being experienced over multiple years increasingly at the community level and, as in the case of Mozambique’s lengthy recovery from Cyclone Idai, at a national level. As climate impacts increase in prevalence, policymakers are focusing greater attention on how to address the destruction and depletion from “natural” events, where the severity and frequency of these events have been exacerbated by human-fueled climate change. There is a growing recognition that these types of ongoing climate-related “problems of loss cannot be analytically or ethically assigned to the future.” Something needs to be done now-but the question is what can the legal system do to address loss and damage that cannot be valued financially? The first part of this article examines the growing international consensus about how States understand their obligations to address climate change related “loss and damage.” The second part of this Article will question whether the current conversation around “loss and damage” is a poor substitute for addressing non-economic losses where compensation is an inadequate proxy. The third part of this Article examines how the international community proposes addressing non-compensable losses and describes how legal system attempt to institute remedies for otherwise non-compensable losses. The final part of this Article departs from a legalistic approach to loss and damage to focus instead on the role of “social grief” to address non-compensable losses and potentially avoid future losses

Scuttling IUU Fishing and Rewarding Sustainable Fishing: Enhancing the Effectiveness of the Port State Measures Agreement with Trade-Related Measures

Illegal, unreported, and unregulated fishing (IUU fishing) is a substantial threat to global food security and a recurring problem for global fishery managers already facing difficult baseline situations exacerbated by climate change, including warming oceans and increasing acidification. There is nothing historically new about IUU fishing; there have always been poachers who take advantage of operating in the shadows of legal commercial fishing. What is new is the extent to which marine poaching has industrialized. It is estimated that 19% of the worldwide value of marine catches are unlawful. The problem is not limited to developing states. For example, even though the United States, through the work of the U.S. Coast Guard, has been actively combatting IUU fishing for decades, all is not well at U.S. ports. A 2014 study found that up to 32% of wild-caught seafood, including shrimp, crab, salmon, pollock, and tuna, imported into the United States may be illegally harvested. While the United States has adequate access to protein resources, many other countries, such as Sierra Leone, whose populations depend upon fish as a primary protein source, face tremendous challenges with combatting IUU fishing. As global populations increase, but critical food resources decrease, it is evident there is a critical need to “re-tool” the food system to eliminate the pressures of IUU fishing

The Role of Boundaries and Borders in Ocean Governance: Reflections on Three Promising Transborder Ocean Governance Models

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Rio +20, Agenda 21, and Progress Towards Ocean Protection

Twenty years ago, States produced the Agenda 21, an ambitious blueprint for sustainable development, and presented it at the 1992 Rio Conference. This paper queries how the international community has done in achieving its Agenda 21 goals related to ocean protection. Are we on track? Or do we need to rethink some of our strategies for ocean protection and pursue new directions? In this empirical study, the author compares international and domestic law and policy covering seven main Agenda 21 implementation areas: integrated management of coastal and marine areas, marine environmental protection, sustainable use and conservation of high seas marine resources, sustainable use and conservation on non-high seas marine resources, ocean management in relation to climate change, international and regional cooperation and coordination, and sustainable development of small islands. To see how we are doing, the author selected as a sample the domestic marine protection policies and the international cooperative efforts of five states interested in ocean governance: the United States, Denmark (as a member of the EU, the headquarters of Maersk shipping, one of the largest container shipping companies in the world, and a fishing nation), China (as the largest fishing nation in the world), Panama (largest flag of convenience State), and Sierra Leone (as a least developed country dependent on fishing). In reviewing the policies of these States, the authors will qualitatively examine whether existing domestic policies are in conformity with the goals articulated in Agenda 21 and where there may be gaps in implementation. The paper will extrapolate from the comparative analysis how we are doing as an international community in achieving Agenda 21 goals for protection of ocean resources. The paper will conclude with positing suggestions on how the negotiated Rio +20 framework for action on ocean might further Agenda 21 goals

Scuttling IUU Fishing and Rewarding Sustainable Fishing: Enhancing the Effectiveness of the Port State Measures Agreement with Trade-Related Measures

Illegal, unreported, and unregulated fishing (IUU fishing) is a substantial threat to global food security and a recurring problem for global fishery managers already facing difficult baseline situations exacerbated by climate change, including warming oceans and increasing acidification. There is nothing historically new about IUU fishing; there have always been poachers who take advantage of operating in the shadows of legal commercial fishing. What is new is the extent to which marine poaching has industrialized. It is estimated that 19% of the worldwide value of marine catches are unlawful. The problem is not limited to developing states. For example, even though the United States, through the work of the U.S. Coast Guard, has been actively combatting IUU fishing for decades, all is not well at U.S. ports. A 2014 study found that up to 32% of wild-caught seafood, including shrimp, crab, salmon, pollock, and tuna, imported into the United States may be illegally harvested. While the United States has adequate access to protein resources, many other countries, such as Sierra Leone, whose populations depend upon fish as a primary protein source, face tremendous challenges with combatting IUU fishing. As global populations increase, but critical food resources decrease, it is evident there is a critical need to “re-tool” the food system to eliminate the pressures of IUU fishing

Follow the Leader: Eliminating Perverse Global Fishing Subsidies through Unilateral Domestic Trade Measures

Perverse subsidies including fuel tax rebates lead to overfishing though a combination of overcapacity and excess fishing effort. The current overfishing trend has depleted certain key commercial fisheries with implications for future food security, particularly in regions dependent on fish protein. Over the course of the past four decades, there have been a number of multilateral efforts to eliminate the subsidies including environmental treaties, environmental targets, and trade negotiations. None of these attempts and a global cooperative response have achieved a reduction in perverse subsidies. This Essay proposes the adoption of unilateral trade measures or a set of “Friends of the Fish” trade measures to eliminate perverse subsidies. As explained in the Essay, parties that might oppose these trade measures would be unlikely to prevail in a dispute settlement based on previous decisions from the World Trade Organization (WTO) Appellate Body involving conservation of natural resources. Further, although unilateralism may not be optimal, it may be sufficient to create changes in the subsidization practices as states who continue to subsidize fishing fleets lose access to important trading markets