<<

. 11
( 16)



>>

Tasmanian Dam Case, supra note 36, at para. 29 (J. Mason).
39

Id. at para. 31 (J. Mason).
40

See I. M. Sinclair, The Vienna Convention on the Law of Treaties 3 (1973) (describing pacta
41

sunt servanda as “the most fundamental principle of treaty law”). See generally Lord McNair, The
Law of Treaties 493“505 (1961) (explaining extensively the principle of pacta sunt servanda); Josef
L. Kunz, The Meaning and the Range of the Norm Pacta Sunt Servanda, 39 Am. J. Intl. l. 180
(1945).
Ian Brownlie, Principles of Public International Law 620 (5th ed. 1998). The Vienna Conven-
42

tion on the Law of Treaties (Vienna Convention) states the principle in the following manner: “Every
treaty in force is binding upon the parties to it and must be performed by them in good faith.” Vienna
Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27, 1155 U.N.T.S. 331
(entered into force Jan. 27, 1980) [hereinafter Vienna Convention]. The Vienna Convention entered
into force in 1980, after the WHC, and therefore might not be applicable retroactively. However, much
of the Vienna Convention embodies customary international law and, as such, would be applicable.
See Case Concerning the Gabcikovo-Nagymaros Project, Hungary/Slovakia, 1997 I.C.J. 3 (stating that
although the Vienna Convention may not be directly applicable to an earlier international agreement,
those provisions of the Vienna Convention that state customary international law are relevant). The
United States has not rati¬ed the Vienna Convention, but the State Department has stated that the
Vienna Convention is evidence of the customary law on treaties. It describes the Vienna Convention
as “constituting a codi¬cation of the customary international law governing international agreements
and therefore as foreign relations law of the United States even though the United States has not
adhered to the convention.” Sen. Exec. Doc. L., 92nd Cong., 1st Sess. (1971). Further, in the letter of
submittal of the Vienna Convention, the Secretary of State described it to be “˜generally recognized
as the authoritative guide to current treaty law and practice.™” Maria Frankowska, The Vienna Con-
vention on the Law of Treaties Before United States Courts, 28 Va. J. int™l L. 281, 298 (1988) (quoting
Secretary of State Rogers™ Report to the President, Oct. 18, 1971, 65 Department of State Bulletin 684,
685 (1971)).
The Australian Court suggested that these provisions more clearly impose binding obligations on
43

Parties to the Convention; however, the Court did not directly rule on the issue.
The World Heritage Convention and Climate Change 263


undertake deliberate measures that might damage world heritage.44 A simple textual
analysis of the plain meaning of the provision supports this interpretation. Under
fundamental rules of treaty interpretation, as provided by the Vienna Convention, a
treaty must “be interpreted in good faith in accordance with the ordinary meaning of
the terms of the treaty in their context and in light of its object and purpose.”45 The
plain language of Article 6(3) sets forth a nondiscretionary duty to forgo deliberate
undertakings that may damage world heritage.

The travaux pr´ paratoires (the negotiating history of the treaty) supports this plain
e
language interpretation.46 Early drafts of the Convention did contain qualifying
language, but the drafters pointedly excluded it from the ¬nal version of Article 6.
In early drafts, Article 6(3) read: “The States Parties to this Convention undertake
to respect the cultural and natural heritage enjoying international protection under
this Convention by refraining so far as possible from acts which might damage
them.”47

The adopted language is far less discretionary and imposes a binding, articulable
legal obligation on State Parties. In fact, the drafters speci¬cally eliminated “in so

Tasmanian Dam Case, supra note 36, at para. 32 (J. Mason).
44

The Vienna Convention is widely understood to codify customary international law regarding inter-
45

pretation of treaties. Sinclair, supra note 41, at 153 (“There is no doubt that articles 31 to 33 of the
Convention constitute a general expression of the principles of customary international law relating
to treaty interpretation.”); see also Brownlie, supra note 42, at 608 (stating that “a good number”
although not all, of the provisions of the Vienna Convention express general international law, and
those that do not “constitute presumptive evidence of emergent rules of general international law”).
Indeed, the textual approach to interpretation of treaty provisions codi¬ed in Article 31 has attained
the status of customary international law. See Sir Gerald Fitzmaurice, The Law and Procedure of the
International Court of Justice 1951“1954, 33 Brit. Y.B. Int™l. L. 203, 204 (1957) (suggesting that the
International Court of Justice favors the textual approach); and see, e.g., Territorial Dispute Case
(Libyan Arab Jamahiriya v. Chad), 1994 I.C.J. Reports 6, para. 41; Oppenheim™s International Law,
1271“1275 (Jennings & Watts eds., 9th ed. 1992).
The textual approach to treaty interpretation excludes resort to the negotiating history of a treaty to
46

discern the meaning of a term. Typically, recourse to negotiating documents only occurs when, after
an analysis of the plain meaning, treaty terms remain ambiguous. Brownlie, supra note 42, at 635.
However, the negotiating work, or the travaux pr´ paratoires, may verify or con¬rm an interpretation
e
emerging from a textual analysis. Id. Article 32 of the Vienna Convention states that “[r]ecourse may
be had to supplementary means of interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to con¬rm the meaning resulting from . . . [a textual
interpretation], or to determine the meaning when . . . [a textual interpretation] leaves the meaning
ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.” Vienna
Convention, supra note 42, at art. 32.
Special Committee of Government Experts to Prepare a Draft Convention and a Draft Recommenda-
47

tion to Member States Concerning the Protection of Monuments, Groups of Buildings and Sites, Draft
Convention Concerning the Protection of Cultural and Natural World Heritage, SHC-72/Conf.37/5
(Apr. 7, 1972), available at http://whc.unesco.org/archive/1972/shc-72-conf37“5e.pdf. Another earlier
draft read: “Each Party shall respect all areas and sites inscribed in the Register by refraining so
far as possible from acts which might damage them.” Special Committee of Government Experts
to Prepare a Draft Convention and a Draft Recommendation to Member States Concerning the
Protection of Monuments, Groups of Buildings and Sites, Draft Convention Concerning the Pro-
tection of Cultural and Natural World Heritage, SHC-72/Conf.37/4 (Apr. 7, 1972), available at
http://whc.unesco.org/archive/1972/shc-72-conf37“4e.pdf.
Erica J. Thorson
264


far as possible,” indicating that this provision was meant to be implemented in a
less discretionary manner than Articles 4 and 5.48 Article 6, as adopted, codi¬es the
object and purpose of the Convention “ international cooperation for the protection
of world heritage.
As the Preamble evinces, the WHC™s object and purpose is twofold. First, protec-
tion of “[world] heritage at the national level often remains incomplete because of the
scale of the resources which it requires and of the insuf¬cient economic, scienti¬c,
and technological resources of the country where the property” is located.49 In other
words, the State Parties recognized that in many circumstances national-level efforts
are insuf¬cient to provide adequate protection. Second, to work toward resolving
the inadequacies inherent in national-level protection, the State Parties understand
that “it is incumbent on the international community as a whole to participate in the
protection of the cultural and natural heritage of outstanding universal value, by the
granting of collective assistance which, although not taking the place of action by
the State concerned, will serve as an ef¬cient complement thereto.”50 Essentially,
the Preamble, while recognizing the primary nature of national effort, makes clear
that the State Parties recognize that to ensure protection they must engage in an
internationally cooperative effort.51
Rules of treaty interpretation, including the Vienna Convention, indicate that the
object and purpose of a treaty evinces the ordinary meaning of treaty language.52
The Preamble to a treaty provides context for the meaning of treaty terms, and often
the Preamble elucidates the object and purpose of the treaty.53 The WHC Preamble
supports the interpretation that Articles 4, 5, and 6 impose binding legal obligations. It
makes clear that the WHC™s object and purpose is to foster international cooperation,
coupled with national efforts, to protect world heritage.


In fact, according to Robert Meyer, the author of an article entitled “Travaux Preparatoires for the
48

UNESCO World Heritage Convention,” “The words ˜so far as possible™ . . . were considered an overly
broad loophole, so the word ˜deliberate™ was substituted.” Robert L. Meyer, Travaux Preparatoires for
the UNESCO World Heritage Convention, 2 Earth L.J. 45, 53 (1972). Meyer™s article also suggests
that the drafters did not intend this provision to subject State Parties to strict liability for unintentional
damage caused by pollution. Id. The desire not to impose strict liability, however, does not eviscerate
the plain meaning of the provision. The word “deliberate” can be construed according to its plain
meaning to impart an intent requirement. In other words, State Parties are only obligated not to take
deliberate measures that might damage World Heritage sites; they are not obliged to protect sites from
their unintended actions.
World Heritage Convention, supra note 5, at preamble, third recital.
49

Id.
50

The Preamble states that the treaty seeks to establish “an effective system of collective protection of
51

the cultural and natural heritage of outstanding universal value, organized on a permanent basis and
in accordance with modern scienti¬c methods.” Id. at preamble, eighth recital.
See Vienna Convention, supra note 42, at art. 31(1).
52

See id. at art. 31(2); see also Brownlie, supra note 42, at 634 (stating that for purposes of interpretation,
53

the “context” of the treaty includes its preamble); Sir Gerald Fitzmaurice, The Law of Procedure of
the International Court of Justice: Treaty Interpretation and Other Treaty Points, 28 Brit. Y.B. Int™l.
L. 1, 4 (1951) (indicating that “a preamble does have legal force and effect from the interpretative
standpoint”) (emphasis in original).
The World Heritage Convention and Climate Change 265


3.2. The Mitigation Strategy Required by the World Heritage Convention
The obligations imposed by Articles 4, 5, and 6 of the WHC require that State Parties
engage in an aggressive climate-change mitigation strategy because they mandate the
protection of World Heritage sites and the “outstanding universal values” therein.
Articles 4 and 5 call for State Parties to act aggressively to protect world heritage
within their territories, and Article 6 obliges all State Parties to forgo actions that
might damage World Heritage sites. Together, these provisions require that all State
Parties engage in an aggressive climate change mitigation strategy entailing sharp
reductions in greenhouse gas emissions.
The Petitions suggest that the Kyoto Protocol targets could provide useful guide-
lines for State Party implementation of WHC obligations respecting climate change;
however, “appropriate” mitigation measures for many State Parties would necessar-
ily include reductions beyond those called for by the Kyoto Protocol, because the
WHC states that State Parties recognize that they must do all they can to the utmost
of their resources.54 In the case of many State Parties to the WHC, this would entail
greater reductions than those provided by the Kyoto Protocol. In fact, although the
Kyoto Protocol sets greenhouse gas reduction targets with the aim of preventing dan-
gerous anthropogenic interference with the climate system, it calls for developed
countries to reduce greenhouse gas emissions by an average of only 5.2% against
a 1990 baseline during the period of 2008“2012.55 Many State Parties to the WHC
can, within their resources, reduce greenhouse gas emissions further. National and
localized efforts to take action above and beyond Kyoto Protocol requirements make
this clear.56
Indeed, if State Parties are to protect World Heritage sites from climate change,
then all Parties to the WHC may be obligated to implement a regime of so-called
“deep cuts” in greenhouse gas emissions. As is commonly understood, the reductions
proposed by the Kyoto Protocol will not stabilize concentrations of greenhouse gas
emissions in the atmosphere, and they certainly will not reverse current global
climate change trends. The Chairman of the Intergovernmental Panel on Climate
Change, Dr. Rajendra Pachauri, has warned that the world “˜has reached the level


World Heritage Convention, supra note 5, at art. 6(3); see also Scott Barrett, The Problem of Averting
54

Global Catastrophe, 20 Chi. J. Int™l L. 527, 549“50 (2006) (describing failure of the Kyoto Protocol
to achieve reductions commensurate with Parties™ capacity).
Kyoto Protocol to the U.N. Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M.
55

22, available at http:// UNFCCCc.int/resource/docs/convkp/kpeng.pdf [hereinafter Kyoto Protocol];
see also David W. Childs, The Unresolved Debates that Scorched Kyoto: An Analytical Framework, 13
U. Miami Int™l & Comp. L. Rev. 233, 251 (2005) (noting that climatologists estimate that reductions
would need to increase 40% to 50% to stabilize greenhouse gas concentrations in the atmosphere).
See generally Randall S. Abate, Kyoto or Not, Here We Come: The Promise and Perils of Piecemeal
56

Approach to Climate Change Regulation in the United States, 15 Cornell J. L. & Pub. Pol™y
369 (2006); see also Matthew Bramley, The Case for Deep Reductions: Canada™s Role in Preventing
Dangerous Climate Change “ An Investigation by the David Suzuki Foundation and the Pembina
Institute, sec. 0.3 (2005) (summarizing government commitments to reduce greenhouse gas emissions).
Erica J. Thorson
266


of dangerous concentrations of carbon dioxide in the atmosphere™ and has called for
immediate and ˜very deep™ cuts in carbon dioxide emissions.”57
Thus, the goal of the UNFCCC provides helpful guidance regarding WHC obli-
gations. The UNFCCC™s “ultimate objective” is “stabilization of greenhouse gas
concentrations in the atmosphere at a level that would prevent dangerous anthro-
pogenic interference with the climate system.”58 The consensus of the scienti¬c
community, as well as many governments, suggests that, to avoid “dangerous cli-
mate change,” the global average surface temperature must not increase beyond 2—¦ C
above preindustrial temperatures.59 To avoid temperature increases beyond 2—¦ C, the
global community must limit cumulative greenhouse gas emissions to no more than
15% above 1990 levels by 2020 and reduce emissions to at least 30% to 50% below
1990 levels by 2050.60 This daunting task requires substantially more reductions in
greenhouse gas emissions than the global community can achieve either through
implementation of the Kyoto Protocol or through other nonbinding, multilateral
measures.
The UNFCCC™s goal of preventing dangerous human-induced climate change
could provide a basis for implementation of the WHC obligations regarding climate
change because it expresses nearly the entire international community™s sentiment
and would achieve the protection necessary for World Heritage sites that is con-
templated by the WHC “ namely, that such sites should be preserved for future
generations by preventing damaging anthropogenic interference with the climate
system.61 However, the UNFCCC™s Kyoto Protocol does not adequately imple-
ment the WHC™s obligations to prevent climate change effects. State Parties to the

Quoted in Geoffrey Lean, “Global Warming Approaching Point of No Return, Warns Leading Cli-
57

mate Expert,” (Jan. 23, 2005), available at http://www.commondreams.org/headlines05/0123“01.htm
(last visited Aug. 16, 2006).
United Nations Framework Convention on Climate Change, May 9, 1992, S. Treaty Doc. No.
58

102-38, 1771 U.N.T.S. 107, at art. 2 [hereinafter UNFCCC].
See 3 Millennium Ecosystem Assessment, Ecosystems and Human Well-being: Policy
59

Responses 375 (Kanchan Chopra et al. eds., 2005) (“The best guidance that can currently be given
suggest that efforts be made to limit the increase in global mean surface temperature to less than
2—¦ C above pre-industrial levels[.]”); see also Bramley, supra note 57, at sec. 0.2 (stating that the Euro-
pean Council ¬rst endorsed a 2—¦ C limit and that the Climate Action Network International “has
concluded that ˜climate action must be driven by the aim of keeping global warming as far below 2—¦ C
as possible™”).
Bramley, supra note 56, at sec. 3.1, Table 1. The table presents a comparative look at data from three
60

climate change studies. See Bill Hare & Malte Meinshausen, How Much Warming Are We Committed
To and How Much Can Be Avoided?, available at http://www.pik-potsdam.de/pik_web/publications/
pik_reports/reports/pr.93/pr93.pdf; Michael den Elzen & Malte Meinshausen, Meeting the EU 2—¦ C
Climate Target: Global and Regional Emission Implications, available at http://www.gci.org.uk/
brie¬ngs/rivm.pdf; and Niklas Hohne et al., Options for the Second Commitment Period of the Kyoto
¨
Protocol, available at http://www.umweltbundesamt.org/fpdf-1/2847.pdf, for the climate change studies
cited.
Roda Verheyen, Climate Change Damage and International Law 55 (2005) (noting that “sta-
61

bilisation is linked to the prevention of dangerous interference with the climate system, which
implies that the actual objective of the [UN]FCCC is the stabilization of the climate itself at safe
levels”).
The World Heritage Convention and Climate Change 267


WHC have an obligation independent of the obligations they may have under the
UNFCCC and the Kyoto Protocol to prevent dangerous human-induced climate
change and eliminate the threat of climate change to world heritage. This obligation
arises directly from Article 4™s call for State Parties to do all they can and the request in
Article 5 that State Parties undertake the appropriate legal, technical, administrative,
and scienti¬c measures. In light of current climate change trends, these provisions
require that State Parties undertake to make “deep cuts” in their greenhouse gas
emissions to protect the world heritage within their territories. Thus, although the
UNFCCC provides the same goal State Parties must have when executing their
WHC obligations, the current implementation strategies under the UNFCCC, that
is, the Kyoto Protocol, have failed to achieve the necessary emissions reductions.
In addition to the obligations State Parties have to protect threatened world her-
itage within their territories, Article 6 states that all State parties must “not take any
deliberate measures which might damage directly or indirectly” World Heritage
sites.62 Thus, whereas Articles 4 and 5 speci¬cally concern State Party obligations
to protect and preserve their own world heritage, Article 6 reiterates the recognition
that world heritage is, in fact, part of the common heritage of humankind and thus
all State Parties must undertake to protect all world heritage. With respect to climate
change, this obligation means that all State Parties must act to reduce or limit their
greenhouse gas emissions whether or not climate change threatens World Heritage
sites within their respective jurisdictions.
In its position paper, the United States mischaracterizes the nature of the
obligations in Article 6. The United States reads the Petitions as arguing that State
Parties have failed to reduce greenhouse gas emissions and thus have not prevented
climate change, leading to a violation of Article 6(3).63 The United States correctly
states the Petitioner™s position, but Petitioners do not argue that the failure to
reduce greenhouse gas emissions is a violation of Article 6(3), as the United States
suggests. The United States argues that “[n]ot taking an action, such as not reducing
greenhouse gas emissions, or not signing on to an agreement like the Kyoto Protocol,
does not constitute a ˜deliberative measure which might damage™ a site.”64 Thus,
the United States concludes that a violation of Article 6(3) has not occurred. This is
a specious, end-run argument based on semantics. Article 6(3) obliges State Parties
“not to take deliberate measures” that directly or indirectly damage world heritage.
The relevant action is emission of greenhouse gases, not their reduction. This is
the central argument of the Petitions. State Parties have an obligation to reduce
their greenhouse gas emissions because emitting greenhouse gases is a deliberate
measure directly and indirectly damaging World Heritage sites. In other words, the
Convention obliges State Parties not to emit greenhouse gases to the extent that
they are contributing to anthropogenic interference with the climate system. Unlike


World Heritage Convention, supra note 5, at art. 6(3).
62

U.S. Position Paper, supra note 12, at 2.
63

Id. (quotation in original).
64
Erica J. Thorson
268


the targets and timetables of the Kyoto Protocol, which bind only certain nations
to speci¬c reductions,65 the climate change responsibilities under the WHC bind
all State Parties similarly, whether affected world heritage lies within a State Party™s
territory or beyond.66 However, these obligations must be read with international
principles of equity in mind, primarily the concept of common but differentiated
responsibilities.67 Principle 7 of the United Nations™ Rio Declaration is the foremost
statement of this concept. It states: “States shall cooperate in a spirit of global partner-
ship to conserve, protect and restore the health and integrity of the Earth™s ecosystem.
In view of the different contributions to global environmental degradation, States
have common but differentiated responsibilities.”68 Article 3.1 of the UNFCCC
speci¬cally recognizes this principle™s application to climate change responsibility,
stating that “the Parties should protect the climate system . . . on the basis of equity
and in accordance with their common but differentiated responsibilities and
respective capabilities.”69 The relevant provisions of the WHC recognize that
responsibilities may vary depending on availability of capacity and resources. Article 4
speci¬es that a State Party must do all it can “to the utmost of its own resources,”
and Article 5 indicates that State Parties must endeavor to undertake the speci¬ed
requirements “in so far as possible.” The widely accepted principle of “common
but differentiated responsibilities” and the recognition in the text of the WHC of
varying degrees of capacity present a conceptual framework for compromise and
cooperation in meeting the challenge of reducing global greenhouse gas emissions.


3.3. The World Heritage Committee™s Stance on Mitigation
In response to the petitions, the World Heritage Committee commissioned a joint
report entitled “Predicting and Managing the Effects of Climate Change on World
Heritage” (Joint Report); however, thus far the work of the World Heritage Com-
mittee does not meet WHC obligations to adequately protect World Heritage sites

The Kyoto Protocol obligates Annex I Parties (developed countries) to collectively reduce their green-
65

house gas emissions at least 5% below 1990 levels by 2008“2012, but non-Annex I Parties (developing
countries) are not subject to binding reduction targets. See generally P. G. Harris, Common but
Differentiated Responsibility: The Kyoto Protocol and United States Policy, 7 N.Y.U. Envtl. L.J. 27
(1999).
The United States recognizes this concept in its position paper but argues that because the provisions
66

bind all State Parties equally, it does not confer any climate change obligations. See U.S. Position
Paper, supra note 12, at 3 (arguing that developed nations have not violated Article 6(3) because “even
if this provision applied to not taking particular actions, it would apply equally to all State Parties, not
just the developed country Parties”).
For background and the history of “common but differentiated responsibilities,” see Anita Mar-
67

grethe Halvorssen, Equality among Unequals in International Environmental Law: Dif-
ferential Treatment for Developing Countries (1999).
Rio Declaration on Environment and Development, adopted June 13, 1992, U.N. Doc. A/CONF.151/26
68

(1992), 31 I.L.M. 874, Principle 7 (1992).
UNFCCC, supra note 58, at art. 3(1). See also Christin Batruck, ˜Hot Air™ as Precedent for Developing
69

Countries? Equity Considerations, 17 UCLA J. Envtl. L. & Pol™y 45, 50“3 (describing rationale for
including principle of “common but differentiated responsibilities”).
The World Heritage Convention and Climate Change 269


from climate change.70 The Joint Report recognizes that only mitigation absolutely
alleviates the threats caused by climate change; however, it stops far short of recom-
mending that State Parties implement a general mitigation strategy to protect World
Heritage sites. Both the Joint Report and a document prepared by the World Heritage
Committee based on an expert working group meeting concerning climate change
and the WHC (the Strategy)71 indicate that climate change mitigation initiatives
are within the sole province of the UNFCCC and Kyoto Protocol.72 In fact, both
documents provide that climate change mitigation under the auspices of the WHC
ought to occur only as site-speci¬c projects. For example, the Joint Report suggests
that some World Heritage sites may be involved in sequestering carbon dioxide
but concludes that any quantitative effect is negligible. It also indicates that World
Heritage site managers could be encouraged to promote “improved technology to
reduce emissions throughout the World Heritage network.”73
Effectively, neither the Joint Report nor the Strategy prescribes clear-cut action
on climate change mitigation. Many World Heritage sites will never be preserved for
transmission to future generations unless the State Parties, led by the World Heritage
Committee, act more proactively than merely supporting site-speci¬c mitigation.
For example, Waterton-Glacier International Peace Park was listed as a World
Heritage site, in part, because of its unique geophysical landscape, including its
iconic glaciers.74 However, today only 27 glaciers remain in Glacier National Park
(the U.S. portion of Waterton-Glacier), less than one-¬fth of the approximately 150
glaciers that existed within the park™s current boundaries in 1850.75 In fact, since
1850, the area covered by glaciers in the park has decreased by 73%.76
In Waterton-Glacier, climate change is deleteriously affecting nearly all of the
“outstanding universal values” of the park. In the 2004 Report on the State of Con-
servation of Waterton Glacier International Peace Park, a regular report submitted to
the World Heritage Committee,77 park managers indicated that:

Climate change has and will continue to have important impacts to the Inter-
national Peace Park natural resources. Scienti¬c data collected in Glacier indicates
that park glaciers have shrunk dramatically over the past century; that the park™s tree


See World Heritage Committee, General Issues: Threats to World Heritage Properties, Decision 29
70

COM 7B.b, para. 9 (July 2005). For a full cite to the Joint Report, see supra note 30.
For a full cite to the Strategy, see supra note 35.
71

See Joint Report, supra note 30, at para. 7 (providing that mitigation is the mandate of the UNFCCC
72

and Kyoto Protocol); Strategy, supra note 35, at para. 13 (stating that the “UNFCCC is the instrument
through which mitigation strategies at the global and State Parties level is being addressed”).
Joint Report, supra note 30, at paras. 124“25.
73

See World Heritage Committee, WHC-95/CONF.203/16, § VIII(A.1) (describing characteristics for
74

which the parks were listed as a World Heritage site).
U.S. National Parks Service, Glacier National Park, Environmental Management Plan, at 5 (August
75

2004), available at http://www2.nature.nps.gov/air/features/docs/GlacFinalEMS200408.pdf.
Id.
76

For more on the required “State of Conservation” reports, see http://whc.unesco.org/en/soc/ (last
77

visited Aug. 27, 2006).
Erica J. Thorson
270


line is creeping higher in elevation; that the alpine tundra zone is shrinking, and
that subalpine meadows are ¬lling in with tree species. The ecological signi¬cance
of losing the park™s glaciers is likely affecting stream base¬‚ow in late summer and
increasing water temperatures thus in¬‚uencing the distribution and behavior of
aquatic organisms and food webs.78

Any climate change mitigation occurring within the park™s boundaries, while com-
mendable, is inevitably inadequate to address the devastating consequences of cli-
mate change within the park.79 Even a total ban on greenhouse gas emissions within
the park would not slow, and could never reverse, the climate change effects on
glacial melt. Yet this type of mitigation is all that the Joint Report and the Strategy
suggest should occur “ a wholly inadequate response to the threat of climate change
because it will not protect the outstanding universal values of the park.
Though the park managers of Waterton-Glacier recognize the need to manage
for threats occurring because of climate change, they are incapable of adequately
addressing these threats because the cause “ high rates of greenhouse gas emissions “
occurs almost exclusively outside the park™s boundaries.80 This is true for all World
Heritage sites threatened by climate change, and as a result, site-speci¬c mitigation
could never ameliorate the climate change threats to these sites in any meaningful
way. Thus, the recommendations in the Joint Report and the Strategy neither fully
nor adequately implement State Parties™ obligations to engage in climate change
mitigation because they do not speci¬cally address the cause of the threats to world
heritage due to climate change. The World Heritage Committee™s weak approach
may be politically palatable, especially to State Parties struggling to address their
greenhouse gas emissions adequately, but it falls far short of the type of mitigation
required to protect World Heritage sites.

4. CONCLUSION

The World Heritage Convention requires State Parties to develop a comprehensive
mitigation strategy to protect and preserve World Heritage sites. Although the broad

U.S. Department of the Interior and Parks Canada, Periodic Report on the Application of the World
78

Heritage Convention, Report on the State of Conservation of Waterton-Glacier International Peace
Park, at § 5b (considered by the World Heritage Committee July 2005), available at http://www.
nps.gov/oia/topics/Waterton-Glacier.pdf.
Because Glacier National Park™s managers recognize that the park is experiencing climate change
79

consequences, they have taken steps to reduce greenhouse gas emissions within the park, including
using alternative fuel buses as shuttles for employees and increasing energy ef¬ciency in park buildings.
National Park Service, Glacier National Park Environmental Management Plan 8“10 (2004), available
at http://www2.nature.nps.gov/air/features/docs/GlacFinal GHGInventory.pdf (last visited Aug. 27,
2006).
A symposium on national park management in the United States noted that “[e]cologically sound
80

management requires active management and a vision which looks beyond arti¬cial boundaries at
environmental concerns, whether they originate locally, regionally, nationally, or internationally.
[NPS] must have the capacity to respond to threats, whether they come from a dam at the park bound-
ary, air pollution from a facility 100 miles away, or climate change caused by increased greenhouse
gas concentrations in the atmosphere.” William J. Briggle et al., National Parks for the 21st
Century: The Vail Agenda 106 (1993).
The World Heritage Convention and Climate Change 271


language of the Convention facilitates ¬‚exibility and discretionary approaches to
these obligations, it does not mean that State Parties may entirely abdicate any
responsibility to remedy the threat to World Heritage sites arising from climate
change. For many State Parties, these conclusions may seem like an end run around
the Kyoto Protocol, particularly to State Parties struggling or hesitant to meet even
those commitments, but the obligations under the WHC are clear. Certainly, the
negotiators of the WHC did not foresee the threat of climate change, but they
knew that they could not foresee all potential threats to World Heritage sites. As a
result, the WHC provides broad protections against all threats, and if the WHC is
to remain a meaningful tool to protect natural areas of outstanding universal value,
including mountain glaciers and barrier reefs, then the World Heritage Committee
must effectively engage State Parties in an aggressive climate change mitigation
strategy.
12

The Inuit Petition as a Bridge? Beyond Dialectics of
Climate Change and Indigenous Peoples™ Rights

Hari M. Osofsky—



INTRODUCTION

The rapid pace of climate change in the Arctic poses serious challenges for the
Inuit peoples living there. A petition ¬led with the Inter-American Commission on
Human Rights in December 2005 on behalf of Inuit in the United States and Canada
claims that U.S. climate change policy violates their rights. Upon ¬ling the petition,
Sheila Watt-Cloutier, Chair of the Inuit Circumpolar Conference, made a statement
at the 2005 Conference of Parties of the United Nations Framework Convention on
Climate Change. She summarized the severity of the stakes involved as follows:

What is happening affects virtually every facet of Inuit life “ we are a people of the
land, ice, snow, and animals. Our hunting culture thrives on the cold. We need
it to be cold to maintain our culture and way of life. Climate change has become
the ultimate threat to Inuit culture. . . . How would you respond if an international
assessment prepared by more than 300 scientists from 15 countries concluded that
your age-old culture and economy was doomed, and that you were to become a
footnote to globalization?1

— Associate Professor, Washington and Lee University School of Law; B.A., J.D., Yale University. The
author can be contacted at osofskyh@wlu.edu. This chapter is a republication, with permission and
minor editorial changes, of Hari M. Osofsky, The Inuit Petition as a Bridge? Beyond Dialectics of
Climate Change and Indigenous Peoples™ Rights, 31 Am. Indian L. Rev. 675 (2007). This paper
bene¬ted greatly from the interchange at the 2006 University of Idaho College of Law International
Law Symposium “ which re¬‚ected the tremendous organizational skills and insights of Rebecca
Bratspies and Russell Miller “ as well as at LatCrit XI and the Northwest Tribal Water Rights
Third Annual Conference. I also am grateful for the conceptual and editorial input of William
Burns, Joshua Gitelson, Donald Goldberg, Stefanie Herrington, Lillian Aponte Miranda, Margie
Paris, Radha Pathak, Martin Wagner, and Lua Kamal Yuille. I appreciate the generous ¬nancial and
collegial support of the University of Oregon School of Law and, in particular, the Dean™s Advisory
Council Endowment Fund that made my work on this project possible. Finally, I would like to thank
Kristina Bell for her patient and helpful stewardship of this piece, and Lindsay Goodner, Keneisha
Green, Sheila Southard, and Michael Waters for their assistance with its editing and production in
the American Indian Law Review.
See Presentation by Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference Eleventh Conference
1

of Parties to the UN Framework Convention on Climate Change, Montreal, Dec. 7, 2005, http://
www.inuitcircumpolar.com/index.php?ID=318&Lang=En.

272
The Inuit Petition as a Bridge? 273


The Inter-American Commission provided a two-paragraph response to the peti-
tion on November 16, 2006, that “the information provided does not enable us to
determine whether the alleged facts would tend to characterize a violation of the
rights protected by the American Declaration.”2 Watt-Cloutier, in conjunction with
Earthjustice and the Center for International Environmental Law, requested addi-
tional information on that decision, as well as a hearing on the linkages between
climate change and human rights.3 The Commission agreed to this broader hearing,
which took place on March 1, 2007, and the Commission is currently deliberating
on the basis of it.4
Although a positive decision from the Commission on the speci¬c claims brought
by the Inuit appears unlikely at this point and U.S. climate policy has evolved signif-
icantly under the Obama administration, the Inuit petition serves as an important
example of creative lawyering in both substance and form. It reframes a problem
typically treated as an environmental one through a human rights lens, and moves
beyond the con¬nes of U.S. law to a supranational forum. In so doing, the peti-
tion lies at the intersection of two streams of cases occurring at multiple levels of
governance: (1) environmental rights litigation and petitions and (2) climate change
litigation and petitions.5
In addition, the petition raises critical issues about the mix of advocacy tools
needed to address pressing problems. For example, Watt-Cloutier presented the
petition as part of a dialogue with the U.S. government and openly acknowledged
the dif¬culties of formal enforcement.6 An examination of the Inuit petition thus


Letter from the Organization of American States to Sheila Watt-Cloutier, et al. regarding Peti-
2

tion No. P-1413-05, Nov. 16, 2006, available at http://graphics8.nytimes.com/packages/pdf/science/
16commissionletter.pdf.
Letter from Sheila Watt-Cloutier, Martin Wagner, and Daniel Magraw to Santiago Canton, Executive
´
3

Secretary, Inter-American Commission on Human Rights, Jan. 15, 2007 (on ¬le with author); see also
Jane George, ICC Climate Change Petition Rejected, Nunatsiaq News, Dec. 15, 2006, available at
http://www.nunatsiaq.com/news/nunavut/61215_02.html.
See Letter from the Organization of American States to Sheila Watt-Cloutier, et al. regarding Petition
4

No. P-1413“05, Feb. 1, 2007 (on ¬le with author).
I have analyzed both of these streams in my previous scholarship. See Hari M. Osofsky, The Geogra-
5

phy of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 Wash.
U. L.Q. 1789 (2005); Hari M. Osofsky, Learning from Environmental Justice: A New Model for Inter-
national Environmental Rights, 24 Stan. Envtl. L.J. 71 (2005). For additional scholarship discussing
environmental rights litigation, see sources infra note 47; Human Rights Approaches to Environ-
mental Protection (Alan E. Boyle & Michael R. Anderson eds., 1996); Natalie L. Bridgeman,
Human Rights Litigation under the ATCA as a Proxy for Environmental Claims, 6 Yale Hum. Rts.
& Dev. L.J. 1 (2003); Linda A. Malone & Scott Pasternack, Exercising Environmental Human Rights
and Remedies in the United Nations System, 27 Wm. & Mary Envtl. L. & Pol™y Rev. 365 (2002);
Mariana T. Acevedo, Student Article, The Intersection of Human Rights and Environmental Protection
in the European Court of Human Rights, 8 N.Y.U. Envtl. L.J. 437 (2000). For additional scholar-
ship discussing climate change litigation, see sources infra note 23; see also Joseph Smith & David
Shearman, Climate Change Litigation: Analysing the Law, Scienti¬c Evidence & Impacts
on the Environment, Health & Property (2006); Roda Verheyen, Climate Change Damage
and International Law, Prevention Duties and State Responsibility (2005).
See Presentation by Sheila Watt-Cloutier, supra note 1.
6
Hari M. Osofsky
274


opens broader questions about the best way to address crosscutting environmental
problems like climate change.
This chapter will focus on these questions by exploring the intersectional nature
of the Inuit petition. The piece will break apart the petition to uncover the relational
dynamics imbedded in it. In particular, this chapter will rely upon two conceptual
approaches to dissect the petition: (1) a law and geography perspective and (2) an
exploration of the limits of dialectical analysis.7 Through this unpacking process,
the piece attempts to engage what might constitute progress on climate change and
indigenous peoples™ rights.
Section 1 will use geographic analysis “ examining the way in which key actors and
claims tie to place “ to illustrate the many places, individuals, and entities interacting
through the ¬ling of this petition.8 For the purposes of this discussion, the piece
uses “place” to refer to physical location, “space” to refer to the sociopolitical and
legal structures, and “scale” to refer to the level of governance.9 This section is thus
“geographical” because it locates the actors physically, socially, and politically.
Section 2 builds from that analysis “ and Watt-Cloutier™s own geographic framing
of the petition “ to consider how these complex relationships might help build
bridges. It engages the extent to which the petition creates links across several types
of divisions generally recognized in the law, such as the one between public and
private. In particular, the section explores the limitations of dialectical analysis with
respect to substantive categories, legal structures, and legal approaches that occur
within this petition.10
The piece concludes with some re¬‚ections on the extent to which this kind of
advocacy strategy in general “ and the petition in particular “ can be part of much-
needed progress in protecting the rights of indigenous peoples. It discusses the ability
of this petition to address legitimacy problems embedded in interactions between

Robert Ahdieh introduces the idea of “dialectical regulation” in his recent work, which he describes
7

as the strongest form of intersystemic regulatory behavior in which institutions are engaged in “an
active, iterative, and potentially even institutionalized, pattern of substantive regulatory engagement
across jurisdictional lines, between simultaneously competing and coordinating regulators.” Robert
B. Ahdieh, Dialectical Regulation, 38 Conn. L. Rev. 863, 870 (2006). Paul Berman builds on this
concept in his latest work on global legal pluralism. See Paul Schiff Berman, Global Legal Pluralism,
80 S. Cal. L. Rev. 1155 (2007). This piece™s critique of dialectical framing does not focus on the
speci¬c institutional dynamics that they discuss but rather the limitations of construing crosscutting
legal problems through a Hegelian dance between two categories. I discuss this idea in more depth in
Hari M. Osofsky, The Geography of Climate Change Litigation Part II: Narratives of Massachusetts v.
EPA, 8 Chi. J. Int™l L. 573 (2008).
This analysis builds upon my discussion of the Inuit petition in The Geography of Climate Change
8

Litigation, supra note 5.
The de¬nitions I choose represent only one version of how place and space have been de¬ned in the
9

geography literature. For examples of analyses of the concepts of place and space, see R.J. Johnston,
A Question of Place: Exploring the Practice of Human Geography (1991); Doreen Massey,
For Space (2005); The Power of Place: Bringing Together Geographical and Sociological
Imaginations (John A. Agnew & James S. Duncan eds., 1989); Yi-Fu Tuan, Space and Place: The
Perspective of Experience (1977).
As noted supra note 7, I explore the need to move beyond dialectics in more depth in Osofsky, The
10

Geography of Climate Change Litigation Part 2.
The Inuit Petition as a Bridge? 275


the international legal system and indigenous peoples, and what might constitute a
“win” in this context.


1. THE GEOGRAPHY OF THE INUIT PETITION

A geographic analysis of the Inuit petition re¬‚ects the complex power dynamics
contained within it. Both the actors and claims have multiple, overlapping ties to
place which are important to understanding the framing and potential impact of the
petition. These ties help to situate the petition within the webs of relationships11 that
underlie the production of greenhouse gases, the impact of human-induced climate
change on the Inuit, and possibilities for addressing this problem. Understanding
these linkages provides the basis for further analysis into the constructive role of the
petition.


1.1. Actors
The primary actors in the case are those on the respective sides of the petition “
the petitioners and respondent “ and the decision maker “ the Inter-American
Commission on Human Rights. This section considers how each of these actors
connects to place and space, and in so doing, provides a map of dynamic interactions.


1.1.1. Petitioners
The Inuit petitioners have subnational, national, and supranational identities that
include layered sociopolitical and legal connections. At a subnational level, they
have strong ties to particular local communities, ties that form a part of the human
rights claims they are making. Moreover, these communities sometimes form larger
regional groupings.12
The petitioners are simultaneously citizens of particular nation-states, the United
States and Canada, and of states within those nation-states.13 Moreover, those govern-
mental entities recognize their village and tribal af¬liations. In the Alaskan context,
part of that recognition includes viewing the Inuit as part of Alaska Native Regional
Corporations.14


I have argued that climate change litigation in general, and the Inuit petition in particular, is simul-
11

taneously multiscalar, multibranch, and multiactor. See Osofsky, The Geography of Climate Change
Litigation, supra note 5, at 1813“18, 1843“51.
See Petition to the Inter American Commission on Human Rights Seeking Relief from Violations
12

Resulting from Global Warming Caused by Acts and Omissions of the United States (submitted
Dec. 7, 2005), at 13“20, available at http://www.earthjustice.org/library/reports/ICC_Human_Rights_
Petition.pdf [hereinafter, Inuit Petition].
See id.
13

For an analysis of Alaskan Native Economic Corporations and their economic performance, see
14

Stephen Colt, Alaskan Natives and the “New Harpoon”: Economic Performance of the ANSCA Regional
Corporations, 25 J. Land, Resources, & Envtl. L. 155 (2005).
Hari M. Osofsky
276


Dual identities also exist at a supranational level. The Inuit Circumpolar Con-
ference unites the Inuit across the national borders that arti¬cially subdivide them.
It represents approximately 150,000 Inuit from three countries “ the United States,
Canada, and Russia “ and an administratively self-governing entity, Greenland,
which is a division of Demark.15 However, the petition includes only the Inuit from
the United States and Canada because Greenland and Russia are not part of the
Inter-American regional grouping.16
These af¬liations together construct the Inuit petitioners™ complex ties to place
and space. Each of these ties helps to shape the identity of the “Inuit petitioners.”
The narrative of the petition interweaves these connections to form a coherent
representation that conforms to the requirements of an adjudicative body.


1.1.2. Respondent
The petition was ¬led against the United States, a nation-state. However, the United
States, especially with respect to climate change policy, is far from a monolithic
entity.
The executive branch sets climate change policy and negotiates international
agreements but also evolves in its approach to both over time, particularly as admin-
istrations change. That branch, then headed by President George W. Bush, decided
to withdraw from the Kyoto Protocol, a decision that the petition argues forms a
key part of the U.S. failure to control its greenhouse gas emissions adequately.17
In February 2007, just before the Commission™s hearing on climate change and
human rights, President Bush presented his ¬rst State of the Union address that
discussed the need “to confront the serious challenge of global climate change.”18
Now, under President Obama, the executive branch has committed to addressing
climate change more seriously in a myriad of ways.19

Inuit Circumpolar Conference, available at http://www.inuitcircumpolar.com/index.php?ID=16&
15

Lang=En (last visited Mar. 1, 2006).
For a list of OAS members, see Organization of American States website, Member States and Perma-
16

nent Missions, http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/documents/
eng/memberstates.asp.
President George W. Bush, Speech Discussing Global Climate Change (June 11, 2001), available at
17

http://www.whitehouse.gov/news/releases/2001/06/20010611“2.html.
President Bush Delivers State of the Union Address, Jan. 23, 2007, http://www.whitehouse.gov/
18

news/releases/2007/01/20070123“2.html (full transcript); The State-of-the-Union Message: Bush Loses
the Upper Hand, Economist, Jan. 27, 2007.
See President Barack Obama, Address to Joint Session of Congress (Feb. 24, 2009), available at http://
19

www.whitehouse.gov/the_press_of¬ce/Remarks-of-President-Barack-Obama-Address-to-Joint-
Session-of-Congress/; Remarks by the President on Jobs, Energy Independence, and Climate Change,
East Room of the White House, Jan. 26, 2009, available at http://www.whitehouse.gov/blog_post/
Fromperiltoprogress/; Obama for America, Barack Obama and Joe Biden: New Energy for America,
available at http://www.barackobama.com/pdf/factsheet_energy_speech_080308.pdf (last visited Dec.
22, 2008); see also Ceci Connolly & R. Jeffrey Smith, Obama Positioned to Quickly Reverse Bush
Actions, Wash. Post, Nov. 9, 2008, available at http://www.washingtonpost.com/wp-dyn/content/
article/2008/11/08/AR2008110801856_pf.html (last visited Nov. 11, 2008); John M. Broder & Andrew C.
The Inuit Petition as a Bridge? 277


The legislative branch creates statutory law that underlies U.S. energy policy and
other decision making relevant to climate change. This legislative role has become
even more relevant since the petition was ¬led. In the wake of the 2006 midterm
elections, Barbara Boxer indicated that “[a]s the new chair of the [U.S. Senate]
Committee [on Environment and Public Works], [she was] already planning for
vigorous oversight and legislation to make sure that the U.S. Senate is once again an
environmental leader in protecting the health of our families and our children and
addressing pressing concerns like global warming.”20 Nancy Pelosi, as Speaker of the
House, has been part of a similar push for new legislation.21 With President Obama™s
commitment to major cap-and-trade legislation, Congress will likely play an even
greater role in addressing greenhouse gas emissions than it has before, assuming it
can overcome political hurdles.22
The resolved and pending U.S. court cases, which rely on a variety of legal
theories regarding the approaches of different entities to global climate change, may
ultimately in¬‚uence U.S. policy in a range of ways.23 For the ¬rst time, on Novem-
ber 29, 2006, the U.S. Supreme Court heard one of the cases challenging federal
regulatory decisions on climate change;24 on April 2, 2007, it issued a landmark


Revkin, Hard Task for New Team on Energy and Climate, N.Y. Times, Dec. 16, 2008, at A24, available
at http://www.nytimes.com/2008/12/16/us/politics/16energy.html?_r=1&scp=3&sq=Salazar&st=cse;
John Vidal, Obama Victory Signals Rebirth of US Environmental Policy, Guardian, Nov. 5, 2008,
at http://www.guardian.co.uk/environment/2008/nov/05/climatechange-carbonemissions. For exam-
ples of President Obama™s efforts during his ¬rst week in of¬ce, see Memorandum on The Energy
Independence and Security Act of 2007 (Jan. 26, 2009), available at http://www.whitehouse.gov/
the_press_of¬ce/Presidential_Memorandum_fuel_economy/; Memorandum on State of California
Request for Waiver under 42 U.S.C. 7543(b), the Clean Air Act (Jan. 26, 2009), available at
http://www.whitehouse.gov/the_press_of¬ce/Presidential_Memorandum_EPA_Waiver/; Memoran-
dum from Lisa P. Jackson, Adm™r, Envtl. Prot. Agency, to All EPA Employees (Jan. 23, 2009),
available at http://www.epa.gov/administrator/memotoemployees.html; see also John M. Broder,
E.P.A. Expected to Regulate Carbon Dioxide, N.Y. Times, Feb. 18, 2009, at A15, available at
http://www.nytimes.com/2009/02/19/science/earth/19epa.html.
See Greenwire, Nov. 9, 2006, available at http://www.eenews.net/gw/.
20

See, e.g., Press Release, Pelosi and Reed: We Should Work Together to Take American in a New
21

Direction, Jan. 27, 2007, available at http://www.house.gov/pelosi/press/releases/Jan07/SOTU.html; Is
U.S. Energy Independence a Pipe Dream?, NPR Talk of the Nation, Jan. 24, 2007 (“Today Speaker of
the House Nancy Pelosi upped the ante and called for energy independence within 10 years).”
For an analysis of the complexities of energy legislation, see Jackie Calmes & Carl Hulse, Obama™s Bud-
22

get Faces Test Among Party Barons, N.Y. Times, Mar. 10, 2009, at A1, available at http://www.nytimes.
com/2009/03/10/us/politics/10chairmen.html?_r=1&scp=3&sq=obama%20climate%20change&st=
cse.
See William C. G. Burns, The Exigencies That Drive Potential Causes of Action for Climate Change
23

Damages at the International Level, 98 Am. Soc™y Int™l L. Proc. 223 (2004); Bradford C. Mank,
Standing and Global Warming: Is Injury to All Injury to None?, 35 Envtl. L. 1 (2005); Osofsky, The
Geography of Climate Change Litigation, supra note 5; Richard W. Thackeray, Jr., Note, Struggling
for Air: The Kyoto Protocol, Citizens™ Suits Under the Clean Air Act, and the United States™ Options for
Addressing Global Climate Change, 14 Ind. Int™l & Comp. L. Rev. 855 (2004).
See Massachusetts v. EPA, 415 F.3d 50 (D.C. Cir. 2005), cert. granted, 2006 WL 1725113 (U.S. Dist. Col.
24

June 26, 2006) (No. 05-1120). For a transcript of the oral argument, see http://www.supremecourtus.
gov/oral_arguments/argument_transcripts/05“1120.pdf.
Hari M. Osofsky
278


decision in Massachusetts v. EPA against the Bush administration.25 Although the
EPA under President Bush delayed taking action to implement the decision, the
Obama administration™s EPA is moving rapidly to respond.26
Moreover, a focus on federal governmental actors reveals only a piece of the
construction of “U.S.” climate change policy. Numerous other actors create the
backdrop against which national efforts to regulate greenhouse gases occur and help
to shape the nature of national policy.
In particular, state and local government play an important role in determining
the overall national level of emissions.27 Some of them increasingly make policy
decisions to regulate greenhouse gases more aggressively than the federal govern-
ment and ¬le lawsuits targeted at in¬‚uencing the behavior of the federal government
and corporations. California™s landmark fall 2006 legislation,28 which aimed at dra-
matically reducing its emissions, and its involvement “ as well as the involvement of
its localities “ as petitioners and respondents in climate change litigation in federal
courts29 serve as just one instance of this phenomenon. Another indicator of the

Massachusetts v. EPA, 549 U.S. 497 (2007).
25

Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section
26

202(a) of the Clean Air Act; Proposed Rule, 74 Fed. Reg. 18885 (proposed Apr. 24, 2009) (to be codi¬ed
at 40 C.F.R. ch. 1); John M. Broder, E.P.A. Clears Way for Greenhouse Gas Rules, N.Y. Times, Apr.
17, 2009, at A15, available at http://www.nytimes.com/2009/04/18/science/earth/18endanger.html.
See Barry G. Rabe, Statehouse and Greenhouse: The Emerging Politics of American Cli-
27

mate Change Policy (2004); Donald A. Brown, Thinking Globally and Acting Locally: The Emer-
gence of Global Environmental Problems and the Critical Need to Develop Sustainable Development
Programs at State and Local Levels in the United States, 5 Dick. J. Envtl. L & Pol™y 175 (1996);
Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. Davis L. Rev.
281 (2003); David R. Hodas, State Law Responses to Global Warming: Is It Constitutional to Think
Globally and Act Locally?, 21 Pace Envtl. L. Rev. 53 (2003); Laura Kosloff & Mark Trexler, State
Climate Change Initiatives: Think Locally, Act Globally, 18 WTR Nat. Resources & Env™t 46 (2004);
Robert B. McKinstry, Jr., Laboratories for Local Solutions for Global Problems: State, Local and Private
Leadership in Developing Strategies to Mitigate the Causes and Effects of Climate Change, 12 Penn
St. Envtl. L. Rev. 15 (2004); Hari M. Osofsky, Local Approaches to Transnational Corporate Respon-
sibility: Mapping the Role of Subnational Climate Change Litigation, 20 Pac. McGeorge Global
Bus. & Dev. L.J. 143 (2007) (Conference Proceedings Issue); Barry G. Rabe, North American Feder-
alism and Climate Change Policy: American State and Canadian Provincial Policy Development, 14
Widener L.J. 121 (2004); Judith Resnik, Law™s Migration: American Exceptionalism, Silent Dialogues,
and Federalism™s Multiple Ports of Entry, 115 Yale L.J. 1564, 1643“47 (2006).
California Global Warming Solutions Act of 2006 (AB 32), Cal. Health & Safety Code §§ 38,500
28

et seq.; see also Press Release, Of¬ce of the Governor, Governor Schwarzenegger Signs Landmark Leg-
islation to Reduce Greenhouse Gas Emissions, Sept. 27, 2006, available at http://www.climatechange.
ca.gov/documents/2006“09-27_AB32_GOV_NEWS_RELEASE.PDF.
See http://www.climatechange.ca.gov/; see also Complaint, Connecticut v. Am. Elec. Power Co., 406
29

F. Supp. 2d 265 (S.D.N.Y. 2005) (No. 04 Civ 5669), available at http://caag.state.ca.us/newsalerts/
2004/04“076.pdf; Massachusetts, 127 S. Ct. at 1438; Complaint for Declaratory and Injunctive Relief
(Second Amended), Friends of the Earth, Inc., v. Watson, No. 02“4106 (N.D. Cal. Sept. 3, 2002),
available at http://www.climatelawsuit.org/documents/Complaint_2Amended_Declr_Inj_Relief.pdf.;
Complaint, State of California v. Gen. Motors Corp., available at http://ag.ca.gov/newsalerts/cms06/
06“082_0a.pdf; Complaint, Central Valley Chrysler-Jeep v. Witherspoon, available at 2004 WL
5001055 (E. D. Cal.); Non-Binding Statement of Issues of Petitioners, Coke Oven Envtl. Task Force
v. U.S. EPA, Case No. 06“1131 (Sept. 3, 2003); Los Angeles v. Nat™l Highway Traf¬c Safety Admin.,
The Inuit Petition as a Bridge? 279


breadth of subnational involvement is that the number of U.S. cities and coun-
ties participating in the International Council for Local Environmental Initiatives
Climate Protection Campaign grew from 40 in 2003 to 152 in 2005.30
Similarly, many nongovernmental actors who are not directly included in the
petition in¬‚uence the dialogue over climate change policy greatly. Corporate actors
are major contributors of the greenhouse gases that the United States is allegedly
underregulating.31 However, corporations and nongovernmental organizations not
only advocate on both sides of the climate debate, but have joined mixed public-
private initiatives to achieve greenhouse gas emissions reductions.32 Although none
of those actors is a respondent in any formal sense33 “ and, in fact, some of them
help to reduce to overall level of emissions “ an examination of their roles sheds
additional light on the dynamics framing U.S. policy.


1.1.3. Adjudicative Authority
The Inter-American Commission on Human Rights, where the petition was ¬led,
is a regional human rights body established by the Organization of American States
(OAS).34 All of the North and South American nation-states belong to the OAS.35
The Commission™s headquarters are in Washington, D.C., and its members are
elected by the OAS General Assembly.36 The adjudicative body thus represents a
region that partially overlaps with the Arctic.
Together, the Inuit petitioners, United States, and Inter-American Commission
represent a geography that spans place and space. They have connections to many


912 F.2d 478 (D.C. Cir. 1990), overruled in part by Fla. Audubon Soc™y v. Bentsen, 94 F.3d 658 (D.C.
Cir. Aug. 20, 1996).
See International Council for Local Environmental Initiatives, Cities for Climate Protection, available
30

at http://www.iclei.org/co2/index.htm.
See Complaint, State of California v. Gen. Motors Corp., available at http://ag.ca.gov/newsalerts/
31

cms06/06“082_0a.pdf; Complaint, Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y.
2005) (No. 04 Civ 5669), available at http://caag.state.ca.us/newsalerts/2004/04“076.pdf.
See http://www.pewclimate.org/ (Pew Center on Climate Change); http://www.clintonglobalinitiative.
32

org/home.nsf/pt_cmt_topic?open&cat=climate (Clinton Global Initiative).
Petitions can be brought only against OAS members, and thus potential respondents are limited to
33

nation-states in this forum. See infra note 34 and accompanying text. I have previously analyzed the
ways in which forum constraints shape who are parties to environmental rights suits. See Osofsky,
Learning from Environmental Justice, supra note 5, at 120“21.
See Statute of the Inter-American Commission on Human Rights arts. 2“3, Oct. 31, 1979, O.A.S.
34

G.A. Res. 447 (IX-0/79), available at http://www.iachr.org/Basicos/basic15.htm; Inter-American Com-
mission on Human Rights, What Is the IACHR?, http://www.iachr.org/what.htm (last visited Apr. 7,
2006).
See Organization of American States website, Member States and Permanent Missions, available
35

at http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/documents/eng/
memberstates.asp. Cuba, however, has not been allowed to participate since 1962. See id.
Inter-American Commission on Human Rights Website, What Is the IACHR?, available at http://
36

www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/juridico/english/cyber.htm.
Hari M. Osofsky
280


different localities, states, countries, and regions. These multiscalar ties link them
to different types of governmental and nongovernmental entities, all of which play
important roles in the transnational regulation of climate change and its impact on
the Inuit.


1.2. Claims
This section will not attempt to summarize the 167-page petition, but rather examines
the ties to place and space within the main conceptual pieces of the petition™s
argument. The link between U.S. climate change policy and the Inuit™s human
rights has three main components: (1) the United States contributes a substantial
portion of the world™s greenhouse gases but is not taking adequate policy steps to
reduce those emissions; (2) the resulting phenomenon of global climate change has
signi¬cant impacts on the Inuit; and (3) these impacts violate rights of the Inuit
protected under the Inter-American human rights system. The section addresses the
geographic dimensions of each of these claims in turn.


1.2.1. U.S. Approach to Greenhouse Gas Emissions
The ¬rst conceptual piece of the petition™s argument is that despite the United
States™ substantial contribution to the world™s greenhouse gas emissions, it has failed
to develop adequate policies to limit its emissions. The petition focuses on the Bush
administration in its argument because it was ¬led during that period. By that time,
President Bush had acknowledged that almost 20% of the world™s human-made
greenhouse gases originate from within U.S. borders,37 and that the United States™
own projections indicated that its emissions would rise by 42.7% between 2000 and
2020.38 The United States™ rejection of the Kyoto Protocol and its other efforts to
obstruct constructive progress on climate change “ in the face of its acknowledged
substantial contribution “ was characterized by the petitioners as a refusal “to take
meaningful action to tackle global warming.”39
This piece of the argument engages a complex mix of places and spaces. As
noted in the previous description of the United States, U.S. climate policy is formed
through all three branches of government, and a mix of governmental and non-
governmental actors operating at multiple domestic scales. Moreover, the treaty
regimes interact with domestic policymaking, and so bring a supranational scale
into the dynamics. These interactions together represent the geography of “U.S.
climate policy.”

President George W. Bush, Speech Discussing Global Climate Change (June 11, 2001), available at
37

http://www.whitehouse.gov/news/releases/2001/06/20010611“2.html.
U.S. Dep™t State, United States Climate Action Report 2002, at 73 (2002), available at
38

http://unfccc.int/resource/docs/natc/usnc3.pdf.
Inuit Petition, supra note 12, at 111.
39
The Inuit Petition as a Bridge? 281


1.2.2. Impact of Climate Change on the Inuit
The petition™s second major conceptual piece is that the supranational phenomenon
of global climate change “ resulting from these inadequately regulated emissions “
has multiple impacts on the Inuit. The 2004 Arctic Climate Impact Assessment
documents that temperatures in the Arctic are climbing at twice the average global
rate and that the effects of climate change are particularly severe in the region.40
These changes have signi¬cant implications for the Inuit. Melting permafrost and
worsening storms damage their homes. Changes in animal populations threaten
their livelihood as hunting becomes more precarious. Ice thaws make it dangerous
to use traditional travel routes. The ground is literally shifting under the Inuit™s
feet, and everything from weather prediction to igloo building is not what it once
was.41
At ¬rst blush, the ties to place and space in this piece of the petition are straight-
forward. They certainly include the ties of the Inuit petitioners described earlier.
However, like the ¬rst part of the petition, they involve additional supranational
dimensions: namely, the ties of the Arctic to the many places where greenhouse
gases are emitted through the complex processes in the oceans and atmosphere that
lead to changes in climate. Human-induced climate change links the geographies
of U.S. policy and of the harms suffered by the Inuit.


1.2.3. Human Rights Violations
The ¬nal conceptual piece of the petition is its linking of the effects of climate
change on the Inuit to violations of their rights. The petition claims that the many
impacts on the Inuit violate their right to enjoy the bene¬ts of their culture, their
right to use and enjoy lands they have traditionally occupied, their right to use and
enjoy their personal property, their right to the preservation of health, their rights to
life, physical integrity, and security, their right to their own means of subsistence,
and their rights to residence and movement and inviolability of the home.42
In making this claim, the petition relies upon rights contained in the American
Declaration of the Rights and Duties of Man, a regional human rights document.43
Because the Commission interprets these rights in light of broader international
legal developments, the rights claims provide ties not only across the Americas

40 Susan Joy Hassol, Arctic Climate Impact Assessment, Impacts of a Warming Arctic: Arctic
Climate Impact Assessment 2004, at 8, available at http://www.amap.no/acia/index.html [here-
inafter ACIA]. The ACIA resulted from a collaborative project of the international scienti¬c commu-
nity to document changes in the Arctic. See id.
Inuit Petition, supra note 12, at 35“67.
41

Id. at 75“95.
42

See id.; American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the
43

Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining
to Human Rights in the Inter-American System, OEA/Ser. L.V/I.4 Rev. 9 (2003).
Hari M. Osofsky
282


but also to the other places and supranational institutions that together shape
international law.44
In both its actors and claims, the Inuit petition thus simultaneously engages mul-
tiple scales, from the local to international; multiple branches of government, from
executive to legislative to judicial; and multiple types of actors, from governmental
entities to NGOs to corporations to individuals. Its places and spaces represent a
nuanced geography that makes discerning the petition™s potential impact dif¬cult.


2. THE INUIT PETITION AS A BRIDGE?

These complex relationships embodied in the Inuit petition raise questions about
what its role is and should be. Watt-Cloutier, during that same presentation at the
2005 Conference of Parties, characterized the petition in this way:

Following more than two years of preparation we have submitted today a petition “
this 167-page petition “ to the Inter-American Commission on Human Rights
based in Washington DC. . . . A declaration from the commission may not [be]
enforceable, but it has great moral value. We intend the petition to educate and
encourage the United States to join the community of nations in a global effort to
combat climate change. . . . I suggested that the Arctic is a bridge between regions
of the world. Inuit have the same philosophy. We want to bring people together.
Protecting human rights is ground occupied by both reasonable governments and
civil society, including Inuit and other Indigenous peoples. This petition is our
means of inviting the United States to talk with us and to put this global issue into
a broader human and human rights context. Our intent is to encourage and to
inform.45

Her statement invokes two intersecting geographies underlying the petition. The
¬rst is a physical geography, through which the areas of the Arctic where the Inuit
live connect the United States, Canada, Greenland, and Russia. The second is a
political and cultural geography, in which the petition becomes a dialogue between
the United States and indigenous peoples through a shared commitment to human
rights protection; the petition thus potentially serves as a bridge between nation-states
and civil society.
This part of the chapter builds on Watt-Cloutier™s metaphor by considering six
dialectical relationships that underlie these two geographies “ as well as the other
ties to place and space discussed in Section 1 “ and the possibilities for moving
beyond the limits of these dynamics. In so doing, it owes a debt to and is inspired by
the scholarship of Keith Aoki, Richard Ford, Jerry Frug, Madhavi Sunder, and Leti
Volpp.46 Drawing from their work, this section attempts to engage the complexities

Inuit Petition, supra note 12, at 96“102.
44

See Presentation by Sheila Watt-Cloutier, supra note 1.
45

For some of the works I particularly use as inspiration for this piece, see Keith Aoki, Space Invaders:
46

Critical Geography, the “Third World” in International Law and Critical Race Theory, 45 Vill. L. Rev.
913 (2000); Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis,
The Inuit Petition as a Bridge? 283


of perspective and culture raised by the Inuit petition and Watt-Cloutier™s framing
of it.
The ¬rst relationship, environmental protection/human rights, involves the com-
plexities of capturing crosscutting problems through the available substantive cat-
egories. The second set of relationships “ (1) indigenous peoples/nation-states, (2)
local/national/supranational, and (3) private/public “ confront the evolving con-
straints of the international legal system. The third set of relationships “ (1) tradi-
tional law and culture/international human rights and (2) dialogue/confrontation “
explore the distinctions typically made between Western/Northern/Developed and
Indigenous legal systems. This section™s inquiry into these six dialectics will consider
the possibilities for creative bridging.
An exploration of these dialectics, in turn, raises foundational questions about the
appropriate role for supranational human rights petitions in the broader context of
advocacy involving indigenous peoples. How problematic is it in this context that
international human rights protections emerge out of international law and a legal
system based on nation-states? What is the value of obtaining these judgments? Can
petitions like this one actually bridge these dialectics? Addressing these questions is
critical to assessing what might constitute progress in protecting indigenous peoples™
rights.


2.1. Dialectics of Substantive Categories: Environmental Protection/Human Rights
The Inuit petition builds on the existing jurisprudence in the Inter-American Com-
mission on Human Rights by presenting an environmental rights harm that is sepa-
rated in both time and location from the behavior causing it. The previous decisions
of the Inter-American Commission and Court demonstrate a receptiveness to the
interweaving of environmental harm and human rights violations, especially in the
context of indigenous peoples.47 This case, however, involves a much more diffuse


107 Harv. L. Rev. 1841 (1994); Richard T. Ford, Law™s Territory (A History of Jurisdiction), 97 Mich.
L. Rev. 843 (1999); Jerry Frug, The Geography of Community, 48 Stan. L. Rev. 1047 (1996); Gerald
E. Frug & David J. Barron, International Local Government Law, 38 Urb. Lawyer 1 (2006); Madhavi
Sunder, Cultural Dissent, 45 Stan. L. Rev. 495 (2001); Madhavi Sunder, Piercing the Veil, 112 Yale
L.J. 1399 (2003); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. Rev. 1575 (2002); Leti Volpp,
Feminism Versus Multiculturalism, 101 Colum. L. Rev. 1181 (2001); Leti Volpp, Migrating Identities:
On Labor, Culture, and Law, 27 N.C. J. Int™l L. & Comm. Reg. 507 (2002); Leti Volpp, “Obnoxious
to Their Very Nature”: Asian Americans and Constitutional Citizenship, 8 Asian L.J. 71 (2001).
The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Case No. 79, Inter-Am. Ct. H.R., Ser.
47

C (2001); Mary and Carrie Dann v. United States, Case 11.140, Inter-Am C.H.R., 75/02 (2001); Case
No. 7615, Inter-Am. C.H.R. 12/85, OAS/Ser.L/V/II.66, doc. 10 rev 1 (1985). For a discussion of this
jurisprudence, see Deborah Schaaf & Julie Fishel, Mary and Carrie Dann v. United States at the
Inter-American Commission on Human Rights: Victory for Indian Land Rights and the Environment, 16
Tul. Envtl. L.J. 175 (2002); Jennifer A. Amiott, Note, Environment, Equality, and Indigenous Peoples™
Land Rights in the Inter-American Human Rights System: Mayagna (Sumo) Indigenous Community
of Awas Tingni v. Nicaragua, 32 Envtl. L. 873 (2002); see also Osofsky, Learning from Environmental
Justice, supra note 5.
Hari M. Osofsky
284


geography in its causal links, a difference that may help to explain the Commis-
sion™s negative response to the petition. Unlike corporations logging on indigenous
peoples™ lands, the greenhouse gas emitters are physically separated from the Inuit
and the harm is caused through a complex process in the oceans and atmosphere
around the globe.
This geography thus requires a further bridging of substantive categories. The
environmental rights claims intertwine science and law to represent a complex
environmental process in human terms.48 Although this reliance on science is not
novel “ both environmental and environmental rights claims routinely rely on
scienti¬c analysis49 “ it reinforces the intersectional nature of the petition. In order
for the Inuit to ultimately prevail, they must persuade the Commission to crosscut
not only different types of law, but also multiple disciplines. Such an approach might
not be dialectical synthesis, but rather a recognition of a need to create space for
problems that have multiple substantive dimensions.50


2.2. Dialectics of Legal Structure: Civil Society/Westphalia
The petition does not simply represent a crosscutting, interdisciplinary approach
on a substantive level. The previously described geography of the petition impli-
cates further relationships between what Watt-Cloutier calls “civil society” and the
nation-state structure on which the formal international legal system rests. This
section highlights three of those relationships: indigenous peoples/nation-states,
local/national/supranational, and public/private.


2.2.1. Indigenous Peoples/Nation-States
Indigenous peoples and nation-states have an uneasy relationship. Conceptions
of terra nullius, or empty lands, undergirded the colonial project that devastated
indigenous peoples.51 In the United States, despite treaties between the federal
government and tribes protecting Native American lands, domestic legal structures
and judicial interpretation often continue to perpetuate a process of subordination.52
More speci¬cally, the Inuit petition comes in the wake of the U.S. government
refusing to change its behavior in response to a successful petition by Mary and

Inuit Petition, supra note 12, at 20“34.
48

For two recent analyses of these issues, see Carl F. Cranor, Toxic Torts: Science, Law & the
49

Possibility of Justice (2006), and Carol M. Rose, Environmental Law Grows Up (More or Less),
and What Science Can Do to Help, 9 Lewis & Clark L. Rev. 273 (2005).
See Osofsky, The Geography of Climate Change Litigation, Part 2, supra note 7.
50

See Sherene H. Razack, When Place Becomes Race, in Race, Space, and the Law: Unmapping a
51

White Settler Society 1 (Sherene H. Razack ed., 2002).
For an analysis of relevant Supreme Court jurisprudence, see Gloria Valencia-Weber, The Supreme
52

Court™s Indian Law Decisions: Deviations from Constitutional Principles and the Crafting of Judicial
Smallpox Blankets, 5 U. Pa. J. Const. L. 405 (2003). For a comprehensive treatment of federal Indian
law, see Felix Cohen™s Handbook of Federal Indian Law (2005 ed.).
The Inuit Petition as a Bridge? 285


Carrie Dann “ members of the Western Shoshone indigenous peoples “ to the Inter-
American Commission on Human Rights that challenged the U.S. government™s
expropriation of their land.53 Although the United States, as a member of the OAS,
has an obligation to abide by the recommendations of the Commission, only the
Inter-American Court of Human Rights, which does not have jurisdiction over the
United States, can create enforceable decisions;54 this dif¬culty would likely have
plagued a positive Commission decision regarding the Inuit petition.
In one sense, the Inuit are stepping outside of the constraints of the U.S. legal
system and its relationship to Native Americans by petitioning an international body.
However, nation-states are deeply imbedded in the structures of the Inter-American
human rights system and the Inuit™s claims. Nation-states created the Inter-American
Commission on Human Rights, and their grant of sovereignty gives the Commission
its authority. The petition aims to in¬‚uence the behavior of a particular nation-state,
the United States, on the basis of its OAS membership.55
The embeddedness of this attempt to move beyond domestic barriers in the
legal authority of the nation-state poses a potential opportunity for a bridge. If
international human rights mechanisms are able to provide an effective way to
engage subordination by nation-states “ which is very much an open question given
the barriers to formal enforcement or implementation “ they connect nation-state
sovereignty with limitations on that sovereign authority. As with the substantive
interconnections, this bridge may not involve dialectical dynamics, but rather a
hybrid space that allows for the complexities of the problematic historical and
current relationship between nation-states and indigenous peoples.


2.2.2. Local/National/Supranational
These dances around nation-state sovereignty invoke a second dialectical relation-
ship of legal structure, that of scale. Law often creates hierarchical divisions based on
scale.56 Debates over federalism in the United States embody this phenomenon in


See Observations of the Government of the United States to the Inter-American Commission on
53

Human Rights Report No. 113/01 of Oct. 15, 2001, concerning Case No. 11.140 (Mary and Carrie
Dann) (Dec. 17, 2002) [hereinafter, Observations], available at http://www.state.gov/s/l/38647.htm
(“The United States rejects the Commission™s Report No. 113/01 of October 15, 2001, in its entirety.”).
For a comprehensive analysis of indigenous peoples and international law, see S. James Anaya,
Indigenous Peoples in International Law (2d ed., 2004).
See Statute of the Inter-American Commission on Human Rights arts. 1“2, Oct. 31, 1979, O.A.S. G.A.
54

Res. 447 (IX-0/79), available at http://www.iachr.org/Basicos/basic15.htm.
See supra notes 33“36 & 53“54 and accompanying text.
55

The geography literature explores the complex and multiple de¬nitions of the concept of scale,
56

some of which view scale as creating hierarchical relationships. For a summary of different ways of
de¬ning scale, see Neil Brenner, New States Spaces: Urban Governance and the Rescaling
of Statehood 9 (2004). I have engaged the complexities of scale in more depth in Hari M. Osofsky,
A Law and Geography Perspective on the New Haven School, 32 Yale J. Int™l L. 421 (2007), and Hari
M. Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, this volume.
Hari M. Osofsky
286


their constant navigation between state and federal authority.57 Furthermore, in an
international law context, national authority “ in terms of power though not in terms
of extent “ stands at the top of the traditional Westphalian hierarchy; subnational
law has relevance through its interaction with national law, and international law
rests on the consent of sovereign and equal nation-states.58
But the geography of Inuit petition, described in Section 1, represents multi-
scalar regulatory dynamics. International negotiations over climate change, U.S.
policy decisions, and state and local decisions to regulate climate change are all
interrelated.59 Moreover, those decisions are causing tangible harm to local com-
munities that are connected to broader communities.
The petition thus challenges advocates and governments to bridge scales in order
to engage this problem. Although the petition formally occurs at a supranational
level, it interacts with multiple types of actors operating at more than one level of
governance. This interplay across levels may be one in which different approaches
and dynamics can coexist without synthesis and, in the process, provide the basis for
constructive progress.


2.2.3. Private/Public
As the petition engages these issues of sovereignty and scale, it simultaneously pushes
at the distinctions the law often makes between public and private.60 At ¬rst blush,
the Inuit petition clearly falls within the category of “public.” The subject matter,

The debate over environmental federalism in the mid-1990s embodies this dynamic. For examples
57

of scholarship arguing for the value of federal environmental regulations, see Kristen H. Engel, State
Environmental Standard-Setting: Is There a “Race” and Is It “to the Bottom”?, 48 Hastings L.J. 271
(1997); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570 (1996); Joshua D.
Sarnoff, The Continuing Imperative (but Only from a National Perspective) for Federal Environmental
Protection, 7 Duke Envtl. L. & Pol™y F. 225 (1997); Peter P. Swire, The Race to Laxity and the Race
to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14
Yale J. on Reg. 67 (1996). For examples of scholarship arguing for a more limited federal role,
see Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for
Reallocating Environmental Regulatory Authority, 14 Yale L. & Pol™y Rev. & Yale J. on Reg. 23
(1996); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom”
Rationale for Federal Environmental Regulation, 7 N.Y.U. L. Rev. 1210 (1992); Richard L. Revesz,
The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L.
Rev. 535 (1997); Richard B. Stewart, Environmental Regulation and International Competitiveness,
102 Yale L.J. 2039 (1993). For an interesting analysis of the problem of spatial mismatch, see William
W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 Iowa L. Rev. 1
(2003).
See Ian Brownlie, Principles of Public International Law 287“88 (6th ed. 2003); see also
58

Michael J. Kelly, Pulling at the Threads of Westphalia: “Involuntary Sovereignty Waiver,” Revolutionary
International Legal Theory or Return to Rule by the Great Powers, 10 UCLA J. Int™l L.361 (2005). I
have engaged the problems with this model in other pieces. See Hari M. Osofsky, Climate Change
Litigation as Pluralist Legal Dialogue?, 26A Stan. Envtl. L.J. 181 & 43A Stan. J. Int™l L. 181 (2007);
Osofsky, The Geography of Climate Change Litigation Part 2, supra note 7.
See Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, supra note 58.
59

For a history of the public/private distinction with respect to cities, see Gerald Frug, A Legal History
60

of Cities, in The Legal Geographies Reader 154 (Nicholas Blomley, David Delany & Richard T.
Ford eds., 2001).
The Inuit Petition as a Bridge? 287


international human rights, forms part of public international law. The previously
described importance of the nation-state as the provider of authority and as the
respondent further suggests the public character of the petition.
This formal, legal portrayal of the petition, however, masks the crucial role of
private actors in the problem of greenhouse gas emissions. The dynamics between
governmental and private actors in the energy industry, which form a key piece of
the regulation of emissions, illustrates the inaccuracy of simply characterizing the
petition as public. State sovereignty over natural resources ensures an enmeshing
of the extractive industry and governments.61 Multinational enterprise ties together
corporate entities, which are regulated by a multiplicity of governmental actors in
different places at multiple scales. The NGOs that advocate for responsible energy
production represent a similar web of interconnections.62
For the petition to invite meaningful dialogue, therefore, it must reach across
the public/private divide. The Inuit™s attempt to “encourage and inform” forms
part of a transnational regulatory dialogue in which a mix of public and private
actors participate.63 As with the other “dialectics,” a full view of the petition involves
acknowledging this multiplicity.


2.3. Dialectics of Legal Approaches: Indigenous Legal Systems/“Northern”
Legal Systems
These complex issues of how to situate the petition in existing legal structures lead
to deeper questions of culture and identity arising in dynamic among indigenous
peoples™ legal systems and “Northern” legal systems. This choice of language is
intentional, as it suggests some of the complexities; the Inuit are certainly farther
north than most “Northern” legal systems, and “legal system” means a broad range
of things.64 In particular, this section highlights two sets of relationships that embody
these questions. First, it explores the interaction of traditional law and culture with
international human rights. Second, it builds from that interaction to consider the
dynamic between confrontation and dialogue embodied in the petition.


2.3.1. Traditional Law and Culture/International Human Rights
The national Inuit organization of Canada™s statement about cultural origins
and history, which is included in part in the petition that was submitted to the
See Robert Dufresne, The Opacity of Oil: Oil Corporations, Internal Violence, and International
61

Law, 36 N.Y.U. J. Int™l & Pol. 331 (2004). For an interesting analysis of corporate responsibility
in the context of indigenous peoples™ land rights, see Lillian Aponte Miranda, The Hybrid State-
Corporate Enterprise and Violations of Indigenous Land Rights: Theorizing Corporate Responsibility
and Accountability under International Law, 11 Lewis & Clark L. Rev. 135 (2007).
I have described these dynamics in more depth in previous articles. See Osofsky, Learning from
62

Environmental Justice, supra note 5, at 72“76; Osofsky, The Geography of Climate Change Litigation,
supra note 5, at 1796“97.
For a discussion of judicial dialogue, see infra note 72.
63

Michael Reisman, for example, has argued for the existence of microlaw. See W. Michael Reisman,
64

Law in Brief Encounters (1999).
Hari M. Osofsky
288


Inter-American Commission, embodies the complex dance between “traditional”
and “Northern” approaches:

When we speak about the origins and history of our culture, we do so from a
perspective that is different from that often used by non-Inuit who have studied our
past. . . . Our past is preserved and explained through the telling of stories and the
passing of information from one generation to the next through what is called the
oral tradition. . . . Now the challenge is ours to begin to rebuild an understanding
of our past by using all of the information we now have from our legends, our real
life stories, our knowledge about the Arctic environment and [its] wildlife and from
information now available to us through archeology.65

The petition ¬led by the Inuit with the assistance of major environmental NGOs
can be viewed as part of this evolving narrative tradition that attempts to bridge the
past and the present in the Inuit™s voice. The petition provides a telling of the story of
the U.S. responsibility for the devastation climate change has wreaked upon them.
And yet this story is told in the language of law, speci¬cally international human
rights law rather than traditional law, with outsiders helping in the telling but the
Inuit themselves presenting it.66 As such, the petition embodies the dance between
“traditional” and “Northern” legal approaches, a dance that cannot fully be captured
through a dialectical perspective.


2.3.2. Dialogue/Confrontation
This categorization of the petition as narrative underscores a related dynamic, the
one between dialogue and confrontation. The ¬ling of this petition would gener-
ally be regarded as confrontational. Someone with such a perspective likely would
characterize it as an effort by the Inuit to force the United States to change its

<<

. 11
( 16)



>>