The Experts below are selected from a list of 27867 Experts worldwide ranked by ideXlab platform
Elizabeth Burleson - One of the best experts on this subject based on the ideXlab platform.
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dakota access to justice and pipeline politics tribal consultation environmental justice and rules of engagement
Social Science Research Network, 2017Co-Authors: William H Rodgers, Elizabeth BurlesonAbstract:The Dakota Access pipeline would transport 470,000 barrels a day to the Midwest and Gulf Coast—representing half of current Bakken crude production. The Standing Rock Tribe has pointed out that abandoning the full environmental impact statement review amounts “to a wholly unexplained and arbitrary change based on the president’s personal views.” President Donald J. Trump owned as much as $1 million in Energy Transfer Partners that he has sold since 2015 while former Texas Governor Rick Perry, Mr. Trump’s choice for Department of Energy Secretary, served on the board of Energy Transfer Partners. By Dec. 4, 2016, 10,000 protestors, including Veterans, had gathered and the US Federal government halted DAPL construction. Yet, by February 2017 construction was once again underway. Not all legal systems are just. John Rawls developed the veil of ignorance as a philosophical tool with which to assess the fairness of social decisions. The general sense that one may be benefited or negatively impacted by a social contract should lead decision-makers to be impartial. Public participation in environmental decision-making can lead to just outcomes for the same reasons. Decisions are more likely to be fair and based upon a deep consideration of the implications. In contrast to a pipeline path routed a half-mile north of the Standing Rock Sioux Reservation, an earlier proposed Dakota Access Pipeline route would have crossed the Missouri River roughly 10 miles north of Bismarck, but was rejected as a threat to Bismarck’s water supply. Rev. Jesse Jackson called the reroute “the ripest case of environmental racism I've seen in a long time.” Calling for a fair, accurate and lawful environmental impact statement to identify true risks to Treaty Rights, including water supply and sacred sites, Tribes promptly exercised their Rights of access to justice by bringing several legal claims ranging from human Rights to substantive and procedural environmental due process violations. The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe (the “Tribes”) have requested the Inter-American Commission on Human Rights to call on the United States to adopt precautionary measures to prevent harm to the Tribes, their members, and others resulting from the ongoing and imminent construction of the Dakota Access Pipeline (DAPL). They also request that the Commission call upon the United States to protect these people and peoples from the harassment and violence while gathered in prayer and protest of DAPL. The Tribes argue that the U.S. Army Corps of Engineers (the Corps) failed adequately to assess DAPL potential environmental impacts. The Corps disregarded the Tribes’ consistent objections to construction of the pipeline. The Tribes have asked the Inter-American Commission on Human Rights to call on the United States to protect the Rights of the Tribes.
William H Rodgers - One of the best experts on this subject based on the ideXlab platform.
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dakota access to justice and pipeline politics tribal consultation environmental justice and rules of engagement
Social Science Research Network, 2017Co-Authors: William H Rodgers, Elizabeth BurlesonAbstract:The Dakota Access pipeline would transport 470,000 barrels a day to the Midwest and Gulf Coast—representing half of current Bakken crude production. The Standing Rock Tribe has pointed out that abandoning the full environmental impact statement review amounts “to a wholly unexplained and arbitrary change based on the president’s personal views.” President Donald J. Trump owned as much as $1 million in Energy Transfer Partners that he has sold since 2015 while former Texas Governor Rick Perry, Mr. Trump’s choice for Department of Energy Secretary, served on the board of Energy Transfer Partners. By Dec. 4, 2016, 10,000 protestors, including Veterans, had gathered and the US Federal government halted DAPL construction. Yet, by February 2017 construction was once again underway. Not all legal systems are just. John Rawls developed the veil of ignorance as a philosophical tool with which to assess the fairness of social decisions. The general sense that one may be benefited or negatively impacted by a social contract should lead decision-makers to be impartial. Public participation in environmental decision-making can lead to just outcomes for the same reasons. Decisions are more likely to be fair and based upon a deep consideration of the implications. In contrast to a pipeline path routed a half-mile north of the Standing Rock Sioux Reservation, an earlier proposed Dakota Access Pipeline route would have crossed the Missouri River roughly 10 miles north of Bismarck, but was rejected as a threat to Bismarck’s water supply. Rev. Jesse Jackson called the reroute “the ripest case of environmental racism I've seen in a long time.” Calling for a fair, accurate and lawful environmental impact statement to identify true risks to Treaty Rights, including water supply and sacred sites, Tribes promptly exercised their Rights of access to justice by bringing several legal claims ranging from human Rights to substantive and procedural environmental due process violations. The Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe and the Yankton Sioux Tribe (the “Tribes”) have requested the Inter-American Commission on Human Rights to call on the United States to adopt precautionary measures to prevent harm to the Tribes, their members, and others resulting from the ongoing and imminent construction of the Dakota Access Pipeline (DAPL). They also request that the Commission call upon the United States to protect these people and peoples from the harassment and violence while gathered in prayer and protest of DAPL. The Tribes argue that the U.S. Army Corps of Engineers (the Corps) failed adequately to assess DAPL potential environmental impacts. The Corps disregarded the Tribes’ consistent objections to construction of the pipeline. The Tribes have asked the Inter-American Commission on Human Rights to call on the United States to protect the Rights of the Tribes.
Ghislain Otis - One of the best experts on this subject based on the ideXlab platform.
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constitutional recognition of aboriginal and Treaty Rights a new framework for managing legal pluralism in canada
The Journal of Legal Pluralism and Unofficial Law, 2014Co-Authors: Ghislain OtisAbstract:In Canada, section 35 of the Constitution Act, 1982 states that “The existing aboriginal and Treaty Rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. It was expected that section 35 would be the foundation for a new approach to managing the coexistence of indigenous and non-indigenous law as a key element of legal pluralism in Canada. This paper assesses the extent to which the implementation of section 35 by courts, governments and indigenous peoples has so far actually fostered the constitutional recognition and protection of indigenous legal orders in a way that departs from the colonial approach. After a detailed survey of aboriginal Rights jurisprudence and recent Treaty-making practice, the author concludes that the advent of section 35 has not fundamentally altered the state's traditional unwillingness to let non-state indigenous law settle inter-societal distributive issues that are deemed fundamental to the political and economic orders put in place as a result of th...
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constitutional recognition of aboriginal and Treaty Rights a new framework for managing legal pluralism in canada
2014Co-Authors: Ghislain OtisAbstract:In Canada, section 35 of the Constitution Act, 1982 states that “The existing aboriginal and Treaty Rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. It was expected that section 35 would be the foundation for a new approach to managing the coexistence of indigenous and non-indigenous law as a key element of legal pluralism in Canada. This paper assesses the extent to which the implementation of section 35 by courts, governments and indigenous peoples has so far actually fostered the constitutional recognition and protection of indigenous legal orders in a way that departs from the colonial approach. After a detailed survey of aboriginal Rights jurisprudence and recent Treaty-making practice, the author concludes that the advent of section 35 has not fundamentally altered the state’s traditional unwillingness to let non-state indigenous law settle inter-societal distributive issues that are deemed fundamental to the political and economic orders put in place as a result of the assertion of Crown sovereignty over indigenous peoples and their land.
Carole Goldberg - One of the best experts on this subject based on the ideXlab platform.
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american indians and preferential treatment
Social Science Research Network, 2002Co-Authors: Carole GoldbergAbstract:Preferences and benefits for American Indians predate the American policy of affirmative action, and are grounded in a very different set of rationales. Nonetheless, Indian preferences are the latest targets in the battle against affirmative action. Opponents of Indian preferences and benefits have long deployed the rhetoric of "equal Rights" to attack Treaty Rights and other manifestations of the special legal status that Indians enjoy under federal law. Today, however, the anti-Indian element has joined forces with the anti-affirmative action forces to produce the most intensive challenge yet to Indian Rights. The tribes' most effective defense has been to emphasize the grounding of these special Rights in their governmental status rather than in race or ethnicity. However, the changing nature of federal benefits, along with the changing demographics and politics of Indian country, has made this strategy difficult for tribes to sustain. This paper offers and assesses three alternative legal theories for tribal responses to the attack on special federal legislation benefiting Indians. Political philosophy and theory are deployed to demonstrate the strengths and weaknesses of each response.
Anthea Roberts - One of the best experts on this subject based on the ideXlab platform.
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state to state investment Treaty arbitration a hybrid theory of interdependent Rights and shared interpretive authority
Harvard International Law Journal, 2014Co-Authors: Anthea RobertsAbstract:for investment disputes and the other permitting state-to-state arbitration for disputes concerning the Treaty’s interpretation and/or application. Despite this duality, the potential role of state-to-state arbitration, and its proper relationship with investor-state arbitration, have largely been ignored. However, recent cases, including Peru v. Chile, Italy v. Cuba, and Ecuador v. United States, demonstrate the need to examine the potential and limits of this form of dispute resolution and to consider its implications for the hybridity of the investment Treaty system as a whole. One reaction to the re-emergence of state-to-state arbitration has been to view it as a dangerous development that threatens to infringe upon investors’ Rights and to re-politicize investor-state disputes. This has led some to suggest radically curtailing the scope and availability of state-to-state arbitration in favor of investor-state arbitration. This Article argues that these attempts are inconsistent with the text, object and purpose, and history of investment treaties. The co-existence of these two forms of arbitration without a clear priority mechanism reflects the system’s essential hybridity and cannot be wished away. This duality helps to demonstrate that the goals of investor protection and the depoliticization of investor-state disputes are important, but not absolute. Instead, the re-emergence of state-to-state arbitration represents an important step toward a new third era of the investment Treaty system in which the Rights and claims of both investors and Treaty parties are recognized and valued, rather than one being reflexively privileged over the other. The investment Treaty system has evolved from its first era, which focused exclusively on states’ Rights and state-to-state arbitration, to its second era, which focused primarily on investors’ Rights and investor-state arbitration. Instead of being an illegitimate or regressive development, the re-emergence of state-to-state arbitration represents a permissible and potentially progressive mechanism by which Treaty parties can re-engage with the system in order to correct existing imbalances and help shape its development from within. More generally, the co-existence of investor-state and state-to-state arbitration requires a hybrid theory about the nature of investment Treaty Rights and the allocation of interpretive authority. This Article argues that: investment Treaty Rights should be understood as being granted to investors and home states on an interdependent basis, such that either—but usually not both—may bring arbitral claims; and interpretative authority should be understood as being shared between the Treaty parties, investor-state tribunals, and state-to-state tribunals. This hybrid theory has the potential to help resolve other controversial issues within the field.
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state to state investment Treaty arbitration a hybrid theory of interdependent Rights and shared interpretive authority
Transnational Dispute Management, 2013Co-Authors: Anthea RobertsAbstract:Most investment treaties contain two dispute resolution clauses: one permitting investor-state arbitration for investment disputes and the other permitting state-to-state arbitration for disputes concerning the Treaty’s interpretation and/or application. Despite this duality, the potential role of state-to-state arbitration, and its proper relationship with investor-state arbitration, have largely been ignored. However, recent cases, including Peru v. Chile, Italy v. Cuba, and Ecuador v. United States, demonstrate the need to examine the potential and limits of this form of dispute resolution and to consider its implications for the hybridity of the investment Treaty system as a whole. One reaction to the re-emergence of state-to-state arbitration has been to view it as a dangerous development that threatens to infringe upon investors’ Rights and to re-politicize investor-state disputes. This has led some to suggest radically curtailing the scope and availability of state-to-state arbitration in favor of investor-state arbitration. This Article argues that these attempts are inconsistent with the text, object and purpose, and history of investment treaties. The co-existence of these two forms of arbitration without a clear priority mechanism reflects the system’s essential hybridity and cannot be wished away. This duality helps to demonstrate that the goals of investor protection and the depoliticization of investor-state disputes are important, but not absolute. Instead, the re-emergence of state-to-state arbitration represents an important step toward a new third era of the investment Treaty system in which the Rights and claims of both investors and Treaty parties are recognized and valued, rather than one being reflexively privileged over the other. The investment Treaty system has evolved from its first era, which focused exclusively on states’ Rights and state-to-state arbitration, to its second era, which focused primarily on investors’ Rights and investor-state arbitration. Instead of being an illegitimate or regressive development, the re-emergence of state-to-state arbitration represents a permissible and potentially progressive mechanism by which Treaty parties can re-engage with the system in order to correct existing imbalances and help shape its development from within. More generally, the co-existence of investor-state and state-to-state arbitration requires a hybrid theory about the nature of investment Treaty Rights and the allocation of interpretive authority. This Article argues that: investment Treaty Rights should be understood as being granted to investors and home states on an interdependent basis, such that either — but usually not both — may bring arbitral claims; and interpretative authority should be understood as being shared between the Treaty parties, investor-state tribunals, and state-to-state tribunals. This hybrid theory has the potential to help resolve other controversial issues within the field.
