Law – Page 53 – a sibilant intake of breath

Millennium Development Goal 7

Prompted by my international law and developing world revision, I had another look at the eight Millennium Development Goals which were adopted by the 192 UN member states in 2000, and which are meant to be achieved by 2015. All eight are quite ambitious and represent worthy ambitions and intentions.

Some of the goals give themselves over easily to quantitative evaluation. For instance, reducing the maternal mortality ratio by three-quarters. While there are the ever-present concerns about data quality and the danger of people fudging their numbers, at least there is an empirically verifiable objective being targeted.

The environmental category (MDG7) has the general heading “Ensure environmental sustainability” and among the most vague provisions in the whole list:

Integrate the principles of sustainable development into country policies and programmes; reverse loss of environmental resources.
Reduce by half the proportion of people without sustainable access to safe drinking water.
Achieve significant improvement in lives of at least 100 million slum dwellers, by 2020.

To begin with, ‘sustainable development’ is not as objective a concept as it is sometimes considered. If it requires a society that could continue to operate in its present form indefinitely, then no society that exists today meets the standard. Of course, the term ‘development’ contradicts the idea of stasis. So too does the inclusion of the term in the MDGs generally, since all of them would require large-scale changes in both domestic and foreign policies.

When it comes to sheer vagueness, “reverse loss of environmental resources” must take the cake. What are ‘environmental resources?’ And what would ‘reversing their loss’ involve? With a few exceptions, such as the breakdown and slow recovery of stratospheric ozone, it is not terribly clear what this could mean. Even in cases where the general thrust of the idea seems applicable, such as reforestation or the protection of coral reefs from damaging fishing practices and increasingly acidic oceans, it doesn’t provide much in the way of guidance, or much of a standard for achievement.

Access to water

The second goal, about access to water, is much more in keeping with the qualitative targets that the MDGs generally seek to establish. A map of the world showing who has poor access to water and another showing the incidence of deaths from cholera demonstrates just how unequal quality and availability of water around the world is. All the technology required to provide safe drinking water to everyone exists. The degree to which the present situation is the result of a lack of will makes it a very appropriate target for a high-profile initiative like the MDGs.

While I have never believed that water is a likely cause for large-scale wars (countries that can afford to fight large-scale wars can afford desalination plants, which are expensive but cheaper than wars), there is every reason to believe that water will become a more acute problem in coming decades. One minor example is how a sea level rise of about 100cm could essentially eliminate Malta’s major sources of fresh water. Expect bigger problems in places like India or Bangladesh.

The Economist printed a good Survey on Water back in 2003. Accessing it requires a subscription.

Slum dwellers

Slums were mentioned here quite recently. Improving the lives of 100 million slum dwellers is certainly a worthy aim. As many as 1.2 million people may live in just the Kibera slum in Nairobi. In sub-Saharran Africa, where more than 70% of the urban population already lives in slums, the rate is growing at 4.53% per year. Improving their lives probably requires two sets of approaches. One is based around providing basic needs, including water, health care, sanitation, lighting, security, and education. The other is based around reforming legal systems. Providing secure title to land, for instance, would likely reduce opportunities for bribery, provide access to credit, and generally reduce the level of insecurity in people’s lives. Actually implementing either set of approaches is an awfully tricky proposition, not least because of entrenched interests that value slums as a source of bribes from those who live there as well as a source of cheap labour for the city in which they are embedded. That being said, there are potentially huge improvements in human welfare to be achieved from success in this area.

All told, there seem to be a lot of reasons to be hopeful about the MDGs. They demonstrate, at least, that there is universal awareness within the international system about some of the most pressing problems of the present day. There is likewise at least some energy and initiative being committed to their resolution. The extent to which such efforts are successful will probably have a big impact on the kind of world in which we find ourselves in fifty years time: one in which most of humanity has reached a situation in which their basic needs are met and their basic rights are respected, or one that may be even more unequal and conflict-prone than the situation at present.

Soon to be smokeless

A sign I passed this evening reminded me of how I will only be around to appreciate one day of the new UK smoking ban in enclosed public places, such as pubs. I would not hesitate to call it long overdue. It will make conditions better for people who work in pubs, improve overall health, and end the experience of smelling like an ashtray for days after spending any time in such places.

Of course, it will probably take months for the majority of the smell to seep out from chairs and curtains around the UK. Once that has happened, however, the UK will be a more modern and appealing place.

Obviousness and patents

This week, the US Supreme Court issued a ruling related to the ‘obviousness’ test in patent filing. The case – KSR Int’l Co. v. Teleflex Inc. (PDF) – hinged on whether an automatic adjustment device for an accelerator pedal created by KSR infringed upon the patents of Teleflex. KSR argued that the combination of technologies was obvious, and that Teleflex could not claim royalties.

In order to maintain a fair and beneficial system, the condition that patents cover non-obvious innovations is highly important. The whole reason for granting patents is to foster innovation by granting temporary monopolies to innovators. Patents are meant to include enough information to allow a skilled practitioner to actually make the thing being patented. Under this system, inventors are meant to be willing to disclose the nature of what they have accomplished so that it might serve to aid the investigations of others. In exchange, they get legal rights over their invention for a defined period of time. This trade-off hardly makes sense when companies are permitted to patent trivial innovations, such as the much ridiculed patent awarded to Amazon.com for ‘one click shopping.’

Recently, there have been a good number of cases where the patent system is accomplishing something quite unlike this ideal. ‘Patent trolls‘ acquire patents of a broad and obvious kind, then wait for another company to release a successful product that arguably infringes on them. More often than not, the objective is simply to receive some kind of payment in return for ending the legal hassle. Of course, this interferes with the processes of innovation, as well as undermining the general credibility of the patent system. RIM and Vonage have both recently been targeted by such suits.

It seems sensible that patent offices should be more aggressive in their interpretations of what it means for an invention to be ‘novel’ and ‘non-obvious.’ As such, they would reduce the occurrences in which someone is unfairly granted rights over an idea that many other people have likely come up with, but not bothered to go through the process of trying to patent. It would also reduce the danger of patent trolling, particularly if the courts recognize that such behaviour can be predatory, and that the patent system ultimately exists to serve the public good.

PS. Slashdot has commented on the Supreme Court ruling. Most of these entries are also relevant.

Buying compliance?

Unusually, this week’s roster of environment related presentations at Oxford included something on the Stockholm Convention. Specifically, Dr. Veerle Heyvaert from the LSE spoke to the Socio-Legal Dimensions of Environmental Law and Regulation seminar series about ‘buying compliance’ within the Stockholm framework.

The central part of her presentation addressed the relationship between the two major kinds of state involved in Stockholm. Essentially, there are rich developed states that had already sharply restricted or banned most persistent organic pollutants (POPs) covered by Stockholm before negotiations even began. Then, there are developing states that either still used some of the pesticides restricted or produced large amounts of unwanted by-products such as dioxins or furans. The differences between the two are largely centered around ongoing behaviour, financial resources, and institutional capabilities.

Dr. Heyvaert suggested that the major contribution of the rich states is to help pay for the costs of POP abatement in the poor states. She expressed concern that while the latter is seen as binding, the former is somehow seen as voluntary or charitable. While the Stockholm Convention lacks any official mechanism to ensure compliance, it seems more likely that pressure will be put on poor states to stop emitting than on rich states to help pay for it.

Clearly, there are issues of equity involved. From the perspective of international law, however, it seems to me that there is a more fundamental issue at hand. Cases like the Trail Smelter Arbitration of 1937 have helped to make explicit the norm in international customary law that states do not have the right to pollute the territory of their neighbours. As such, states that have already cut back are not in violation, whereas those that continue to emit are. While this may be a neatly expressed legal situation, it doesn’t conform too well with the reality of who can pay and what actions individuals are likely to take. As such, mechanisms such as those in the Stockholm Convention that allow richer states to assist with the costs of cleaning up industrial and agricultural processes in poor states seem to make both equitable and legal sense.

The question is how to apply such arrangements to more demanding cases. Nobody with a choice is going to pump out large volumes of Mirex or Toxaphene. They are among the nastiest chemicals humans have ever dreamed up. As such, there is a limited incentive to free ride on a system that seeks to limit their production and usage, especially when there are effective channels for financial and technical assistance in doing so.

At the base of all this, there is the question of what goes into the equity calculation. You might choose to consider past emissions when deciding who pays what, or you might look only at present practice. You might consider overall wealth or not do so; require states to pay equal amounts, equal percentages of GDP, or use some other formula. What kind of balance you adopt is the stuff of political deal-making, which I suppose is where most international considerations of equity are ultimately addressed in a meaningful way.

Law and science

Another intersection between science and policy is embodied in a recent report (PDF) from the Science Select Committee of the British Parliament on the relative harmfulness of different legal and illegal drugs. Notably, the survey ranks alcohol and tobacco as being more harmful than illegal drugs including cannabis, LSD, and ecstasy.

Setting aside methodological issues, the survey does reveal some ways in which our response to scientific information is conditioned by pre-existing understandings and practices. Why society feels that it should permit an adult to drink or smoke as much as they choose to (though not in public or before driving) but that it must actively forbid the use of some other substances has no clear logical basis. Any argument that can be used to justify legal tobacco (free individual choice, etc) could be just as easily applied to other substances on the select committee’s list. While scientific and ethical arguments can be made to bolster various positions, it seems that sheer momentum is the main determinant of policy.

I would be willing to guess that some prescription drugs – especially the anti-depressants given ever-more-readily to children and teenagers – would rank quite unfavourably, if subjected to the same type of analysis.

International law exam questions

Members of the M.Phil in International Relations program who are taking the international law option may appreciate knowing that I have categorized and listed exam questions from the last three years on the wiki.

Climate change, law, and predictability

Happy Birthday Kate Dillon

In a somewhat surprising move, a coalition of opposition members of Parliament in Canada have passed a bill forcing the government to live up to the commitment that was made when we signed and ratified the Kyoto Protocol. Specifically, Canada is to cut greenhouse gas (GHG) emissions to 6% below their 1990 levels by 2012. This is quite a substantial reduction to achieve in the next five years, given that emissions are presently about 30% above their 1990 levels.

In many ways, this situation demonstrates how not to deal with the problem of climate change. What you need to do is create the certainty, within industry, that the costs of GHG emissions will increase predictably and progressively over time. Then, when decisions are being made about what equipment to buy and how to set up industrial processes, the extra constraints can be taken into account. By contrast, the present on-again-off-again approach doesn’t create clear incentives. Even worse, it is not clear to industry what will happen after 2012.

The most straightforward and effective approach would be a tax on every tonne of GHG emissions, weighted according to the contribution the particular gas makes to global warming. Since methane contributes more than CO2, it would be more highly taxed. That tax would then rise progressively over time, until Canada reached the point where GHG emissions stabilized and then began to drop towards pre-industrial levels. Whether such an approach would be politically possible (especially with Alberta eying a tar sands bonanza that could mean massive emissions) is another matter. Three plans for meeting the target are outlined in this article from The Globe and Mail.

Perspectives on international environmental law

It cannot be taken as a good sign to have a presentation in twelve hours and still not really be sure about the main thrust of what you are going to say. I feel like I have a lot of structural elements, but only a semi-rough conception of what I am going to build out of them. The feeling is somewhat akin to that which I have towards the thesis and, indeed, life in general once this program ends.

The immediate requirement is to decide how skeptical I ought to be about international environmental law. The fact that Canada, for instance, doesn’t seem to feel particularly obligated to meet its Kyoto targets makes one wonder whether there’s conviction out there to match rhetoric. One temptation is to fall back, and say that environmental law is just one more mechanism through which governments can be lobbied – both internally and externally. Another possibility is to say that law isn’t what’s in the books and filed with the Secretary General, but rather what states actually get up to. The latter view would probably be more favoured by my international law instructors, but it makes the whole corpus of international environmental law even more nebulous than it previously appeared to be.

I suppose I will write a draft, read for a few hours, then decide exactly what to say in the morning (when my cognitive faculties are at their lowest ebb).

International law and the environment

Next Wednesday, I have volunteered to give a presentation to my international law seminar on the following questions:

Why has the regulation of CFCs been a success while the Kyoto Protocol has failed?
Should the USA join the Kyoto Protocol, and if so, why?
What roles have been played by Governments, NGOs and international organizations in the development of international environmental law? What is the basis of their authority in this field?

Substitute persistent organic pollutants (POPs) for Chlorofluorocarbons (CFCs), and it is a very good match for my thesis.

To give very short answers:

Because there were substitutes readily available, the science was strong, and the cost of dealing with the problem reasonable, in the case of CFCs. Climate change is more difficult on all counts. (See the paper I wrote on the Stockholm Convention for my First Nations politics class in 4th year.)
Yes, because it is a first step on the way to an agreement or collection of agreements that will stabilize GHG emissions, in the medium term. Ultimately, doing so will be much cheaper than suffering climate change, and will not carry the same terrible social and ecological costs.
Their authority is based on expertise and legitimacy. See my thesis, in 88 days’ time for a more comprehensive answer.

Reading some more of the international law involved should be both interesting and useful. This is probably the first time the environment has been specifically addressed in any course that I have taken at Oxford.

PS. Much as I hate to reveal a fact that I might later win bets with friends about, I feel compelled to tell one that I learned earlier today from Kate. The polar bear (Ursus maritimus), has black skin: a feature that helps it to absorb energy from the sun, and thus keep the bear warm.

First law seminar

As expected, the first international law seminar was extremely interesting. The conversation between the two instructors, law students, IR students, and one serving military officer should make for an excellent exchange of ideas. Already, some of the positions taken about the role and nature of law have been unfamiliar in an enlightening way.

The location is also an appealing element: the class is set in an elegant seminar room in All Souls College that lights up nicely as the 11:00am to 1:00pm class progresses.