 Okay, we're back. We're live. It's one o'clock rock. Here on a given Tuesday, life in the law with David Forman on the World Conservation Congress, which is so big, I can't believe it. It's getting bigger every time you look. David Forman is director of the Environmental Law Program at the William S. Richardson School of Law, U.H. Minoa. And he joins us today to talk about emerging leaders and the future of environmental law, not only here in Hawaii, but everywhere. Hi, David. Thank you for coming down. My pleasure. Thank you for having me. What's going on at the William S. Richardson School of Law in terms of environmental law? Very excited. Oh, so much to talk about. The program is doing wonderfully. We're putting out terrific students, finding wonderful placements for them out in the community. We've got all kinds of capacity that's being built. But the IUCN coming here in September is a historic event, just a week away. So a lot of preparations that are going on. Well, we're hoping there were some issues with visa permissions approvals. And so we may have a little less than we anticipated, but still a very significant Congress. And actually, some have said the most significant conservation conference in the United States since Teddy Roosevelt's 1908 White House Conference on Conservation. So very significant event. Yeah, so it's going to be huge, but it reflects something. You know, it's just it didn't happen all by itself. It's on a continuum of some kind. And I wanted to ask you to describe that continuum in the way people have gotten, the world has gotten interested in this issue. And of course, COP 21 a few months ago is part of that continuum. So where are we on the on the way to really doing things in environmental law? Yes. So we've come a long way from the origins of creating National Parks, which Teddy Roosevelt was involved in. And then post World War Two, the creation, you know, there was interest in addressing the impacts of the war. And conservation was one of those issues. And so since that point, we've gotten more and more involvement at the conservation level and getting lawyers actually involved more actively. The law school joined the IECN. We had been thinking about it before they actually came to Hawaii. But when they made the decision to come to Hawaii instead of Turkey, we thought, you know, absolutely, we've got to get this done. And some of our partners had been encouraging or encouraging us. And that was the little shove that we needed to to get involved both as voting members of the IECN. So the Environmental Law Program, our head of delegation will be Denise Antolini, my predecessor. We've got faculty members that participate individually as members of the World Commission on Environmental Law. That's one of six commissions in the IECN. And then we're also an institutional member. The law school itself is an institutional member of the Academy of Environmental Law. And we're doing all kinds of wonderful things to try to train folks. We're kind of combining, for example, the new development of the Environmental Court in Hawaii. And we've been, we've had visitors from India and Brazil and other parts of the world. We've met them right here at this table. I appreciate you for bringing them here and letting the public know about it. But we've been working with those folks. And so there were going to be initiatives discussed at this Congress involving the Environmental Court. For example, the formation of a global judicial institute for the environment, a training center for judges. One of the issues we've dealt with here is what's your enforcement capacity? How are you training the prosecutors and the judges to deal with these offenses? And the passage of the recent law, the governor signed, I think the first bill, the governor signed at the law school, allowing for alternative sentencing. So rather than finding somebody, maybe community education is the better approach. Or community service is the better approach than imposing a fine or jail time. Well, you know, it strikes me that when we when we had COP 21, we were talking about making an agreement between nation states, hopefully to be ratified by whatever legislators, legislatures were in those nation states, including Congress. And in that way to achieve global law, global law, you're coming at it here with IUCN, you're coming at it from a slightly different perspective. You're coming out from the legal side, right? And maybe from the scientific side, which is actually a better side, I think. But getting to the same place. Because if you can achieve changes in laws in various nation states, that actually has a more on the ground result, don't you think? Right, I think and one of the projects I'm most heavily involved in for the IUCN comes out of this frustration with the COP process. Long 20 years, the perceived failure of the Kyoto Protocol, some successes with the Montreal Protocol to the UN Framework Convention. COP 21 means the 21st time they have met. Exactly. And really, we haven't heard much about it. Yeah, and people were, what we got out of it was these INDCs, these nationally determined contributions that aren't binding necessarily. Although I've read some interesting analysis about the creativity that our president applied in that process in order to avoid the pitfalls of having to get Senate ratification of an agreement, phrase the agreement in a way that the executive action can accomplish. And it basically fits in with laws that have already been adopted by Congress, Clean Air Act, for example, so we can do administrative rules and other commitments that don't require the agreement of the Senate. But still, people are frustrated and don't feel like our nations have gone far enough and that they need a little bit more push, that it's not just voluntary, that it should be mandatory. And so one of my good friends, Tony Opposa, who I believe has been on the show as well. He's been right here in this room. So when he was here visiting as Dan and Maggie Noy, Distinguished Chair of Democratic Ideals, he had reflected that frustration he represents in Micronesia in the COP discussions. And he wanted to do something else. He wanted something action-forcing. And he thought, okay, well, there was this effort, the Palau Initiative, to try to get liability for harm resulting from climate change. But that meant a lot of resistance. Developed countries, United States and others didn't want to be held accountable for that harm. So the idea was, well, let's look forward. What is the responsibility under international law of states, nations, to address the effects of the global climate crisis on present and future generations? So rather than looking backward, looking forward, so we can go to the International Court of Justice and ask them to issue an advisory opinion. What is the status of the law? What are nations' requirements under the Framework Convention, under the law of the sea, and perhaps maybe more significantly under the adoption of the Sustainable Development Goals by the United Nations? What I get is that international law is, you know, they say the law is a jealous mistress. International law is an elusive mistress. Sometimes you can do it and sometimes you can't. Sometimes you think you have an international agreement, but you don't. And it takes a village, it takes the whole world to sort of buy into this. And the reality is it's little by little. You've got to get people, countries, to come along on it. And the way IUC is doing it, I think, is very positive because it's grassroots almost. And if you have a lot of people in the legal establishments of those countries, in the environmental activist establishments of those countries, it will bubble up to the top. It will become a demand made on the governments of those countries. And I think that's what's happening, isn't it? Yeah, I think so for sure. And the IUCN has had some tremendous successes. The Convention on the International Trade of Endangered Species, the Ramsar Convention, which protects wetlands, those all originated from the IUCN. And so the hope is that we can show, it's basically a proof of concept, right, that this could actually work. We could get and we're going to show people what it would look like. We've had students from around the world write memorials, written submissions or briefs representing regional intergovernmental organizations. It would have been too much to try to represent all the countries in the world. And we may have hit some of the obstacles that you discussed earlier. But we decided we would let, we represent intergovernmental organizations. So we have six teams coming in for this moot court workshop. We've got to talk about that in detail. I think that's fabulous. Shall we do it now or? I want to see your pictures now. Okay. Show and tell. We have some pictures and here they are. Can you describe what we're seeing? Sure. So there are many components to the law school's involvement in the IUCN. And one of those is our effort to meet the needs of folks who are not going to be paying the large amount that is required to register for the Convention. And so what we're doing is we're bringing the IUCN to the law school, right? So we're calling that IUCN at UH law. Has it occurred to you there's going to be a huge crowd at the law school that day? We hope so. We hope so. We would really enjoy people to come. Our first speaker is going to be the evening of Tuesday, August 30th. So before the convention starts, this is the deputy chair of the World Commission on Environmental Law. And so he'll be talking about the sustainable development goals that I mentioned and the rule of law. You know, precisely the question that you you had raised. So it's a nice segue. But so he will be here. We'll also have what was billed as a knowledge cafe for the convention center. But the group that's running it, our partners at Haub School of Law at Pace University in New York, they were they wanted to have something that had more interaction with the public than the knowledge cafe, which was isolated to subject matter interests among another 15 groups of folks. And so we're going to have an energy, a renewable energy focused forum. And that'll take place September 5th at the law school. So on Labor Day, for those that aren't attending our Moot Court workshop, that's 8.30 to 10.30 in the morning. You could make it to the law school after that. I think you'll have a crowd on that one. Two energies so big and getting bigger. For sure. Important to the future policy of the state. So what's this now? Okay. So this is the Moot Court workshop. So we were one of the lucky few that were accepted for a workshop out of a record 1500 applications. And so these are the partners represented on the bottom of the screen. These are the schools that I was referring to. So in our law school students will be representing the Alliance of Small Island States. We will have the Pace Law School at Haub in New York. They're representing the Arab League. Then we'll have a law school from Brazil. That's the Milton Compos Law School. They're representing the Organization of American States. The University of Cebu from the Philippines. They'll be representing ASEAN, the Association of Southeast Asian Nations. Seoul National University in South Korea. They will be representing the Organization for Economic Cooperation and Development. And we've had a recent entry. We will also have somebody from Sciences Paul Renz in France representing the European Parliament. So and this woman has done a young lady has started a crowdsourcing campaign. And so I'm going to try to get information out there to help bring her from France all the way to Hawaii. Wonderful. Yes. Got to meet these people. What's this now? Okay so this is accessible to the public. This is our workshop, the Intergenerational Climate Justice Workshop. It's workshop 9695 if you're trying to search for it through the IUCN system. But you can see on the left side of the screen documents, these are the memorials or the written submissions that the students have submitted. And so we designed it rather than a moot court competition. We designed it as a collaborative presentational kind of proof of concept. And so the students submitted drafts and we got experts from around the world, subject matter experts, to give feedback and then to help the students revise. And so the students looked at that, those suggestions and now have the finished product posted. And we're going to both have the written materials which folks can use in the future, whether it's nations wanting to make arguments or other students from other schools that want to have moot court of their own and address regional issues that we didn't talk about. And we'll also record the session. We'll have a moot court session at the Hawaii Supreme Court on September 1st, 130 to 330. At the Supreme Court. Yeah and we've been really grateful to Chief Justice Mark Rectonwald for allowing us the use of the court and not only that, he will be the acting president of the International Court of Justice for this session. Perfect. Maybe he has aspirations. Well I don't know. He's certainly got the temperament for it. Yes he does. And he'll be joined by some subject matter experts. My colleague, Professor Maxine Burkett will have Professor Christina Voigt from the University of Oslo in Norway, Professor Emilie Gaillard from Sciences Po Ren in France, as well as, I'm drawing a blank right now for us. I know who it is. We can come back. Let's take a short break as a matter of fact and we'll come back and learn more about the moot court which really interests me. If you don't know about moot courts you're going to know more about moot courts in one minute. You'll see. Hey everybody, my name is David Chang and I am a new host for the show, The Art of Thinking Smart. I'm really excited to be able to share with you how to get the smart edge in life. We're going to have awesome guests in the military, business, political, non-profit world, so no matter what background you're from, we have something for you. Please join us every other Thursday at 10 a.m. at thinktechhawaii.com or on the art of thinkingsmart.com. I look forward to seeing you. Aloha, I'm Kirsten Baumgart, Turner, host of Sustainable Hawaii. Thanks for watching Think Tech this summer. We have a lot of terrific shows of great importance and I hope you'll watch my show too every Tuesday at noon as we address sustainability issues for Hawaii. They're really pertinent as the World Conservation Congress approaches in September and the World Youth Congress that's focusing on sustainability next year as well. Have a great summer and tune in at noon every Tuesday. Bingo, we're back. One o'clock rock, life in the law with David Forman, director of environmental law program at William S. Richardson School of Law, UH Manoa. We are so happy to have him here talking about emerging leaders and the future of environmental law here in Hawaii and elsewhere, especially in this incredible conference, biggest ever conference, coming to the convention center what, next week? That's right, September 1st to September 10th. They have a bunch of pre-Congress activities and post-Congress activities but the the meat of it will take place a forum all of these workshops and events September 1 to September 5 and then September 6 to September 10 will be the assembly when we'll do the business of the of the Congress and I'll talk about that a little bit later but I wanted to make sure that I added in the name of our Russian Judge Professor Irina Krasnova will be also on the panel on September 1st at the Hawaii Supreme Court. Excellent, excellent. Okay, let's talk about moot courts for a minute because, you know, to continue on the continuum, you know, you want to raise public awareness about the law, the environmental law, in the thought that if you if you can do that then people become aware that you can protect the environment through the law you just got to make good laws and you got to make them everywhere in the world to protect the planet. This is not easy but this is, in my view, the way you do it. So it's a conversation, it's a conversation leading to judges that no more, legislatures that no more, and ultimately countries that no more and it's coming up through the legal community just great. It makes the legal community more relevant than ever before. I'm presumably more likable than ever before. How about that? It's a new idea. Well, I think, you know, like a lot of legislation, you can write the, you craft the law but then there are debates about what that law actually means, right? And so there are lots of issues, international laws, treaties, conventions, other customary international law, etc. Those obligations that are binding on the international community. But people will argue about, well, what does it really mean? I mean, you had Diane Desi Eirte here talking about issues in the South China Sea. So there are debates between countries about that issue. So that's what we've set up. So in this mood court, rather than address all of the panoply of environmental laws that might bear on the question of the climate crisis, we have focused in on the sustainable development goals that the United Nations adopted at the end of 2015. The UN Framework Convention on Climate Change, which is an obvious element, but also the United Nations Convention on the Law of the Sea. So those are the three main substantive areas that the students will be focused on. Who would have expected that the University of Hawaii School of Law, the William S. Richardson School of Law, would be a global player, an international player. That's what has happened here. Well, over the last few years, the school has emerged to be a global magnet for issues like this, and a great orbiter in international thinking. How about that? It's fantastic. We really do have a tremendous faculty. I mean, if you look at the number of faculty members at our law school that focus on international issues, it's and compare that to, in terms of faculty-student ratio, it's got to be the best in the country. It's really fantastic. It was one of the reasons that I decided to go to this law school. At the time, we had the Law of the Sea Institute here, right? So we're talking about John Van Dyke and John Craven and that group really did a tremendous amount of work. Sherry Broder is continuing that work. She was here yesterday. Yes, we're really grateful for the amount of time that she contributes to the law school, teaching our international CU's classes. But so I think that this is something that we can build upon. You know, we've got three key programs at the core programs at the law school. The Environmental Law Program is one, the Kuglia Center for Excellence in Native Hawaiian Law is another, and we've got a very strong synergy between those two programs, but I've been pitching that we should have an equally strong synergy between our Environmental Law Program and our Pacific Asian Legal Studies Program. And so, and particularly, you know, build upon our expertise in China, Japan and Korea, but also look to Southeast Asia and the Pacific. You know, I think that's some, a way that we can really stand out compared to a lot of the other universities that already have programs in the three bigger countries in that area. We have perfectly situated. Absolutely. And it's the perfect time for us. So what does intergenerational mean in this context? Right. And so the idea is looking, basically, it's in some context, people would say it's the public trust dropped in, basically, basically. You know, like what are your obligations to the generations that have come forward? If you thought about it in indigenous terms, it's making decisions based on seven generations, right? Looking forward rather than taking, making your decisions in the short, on a short term, thinking about it in the long term. And so this builds upon some work that Tony Opposa did. There's a famous case, a minor's Opposa versus Factoron, back in 1993, the Philippine Supreme Court recognized the ability of folks to bring claims on behalf of future generations in order to stop the logging that was taking place in the Philippines. What a wonderful motion. Yeah. They were, they were going to be out of their forest, rainforests, if they hadn't taken action. So, so often we don't do that. We look only at this term of office, this political cycle. You have to do that now. Right. And so we, we thought what better idea to talk about these, these issues than have the voices of future generations present those arguments, right? So we've got some of the top law students from around the country. So that's when you say represent. Right. These law students, lawyers, whoever is speaking, they are speaking on behalf of future generations on these issues. Right. And we thought not only having those students just for the, for their own presence, but the impact on our own students to be interacting with their peers around the, around the world, we thought would be a fantastic opportunity. That's why videotaping is so important. Right. And putting it out there. Right. And so in addition to the memorials that we showed you, we showed earlier, we're going to post recordings of the, of the arguments as well. And we're hoping that people will look to it and, and simulate their own efforts. And so that way we would build consensus and support for activating, action forcing norms basically that the United Nations Framework Convention has some teeth to it. Right. And so that's what we're hoping to accomplish. So I'm one of the speakers in the, in the moot court. We're a wonderful way to connect it up with the general study of law to call it a moot court. And I am going to represent the future generations in my area, I guess. And I'm going to make arguments on their behalf. Right. And my arguments are not going to be the same, perhaps, as somebody representing another area, the future generations in that area. Give me an example. I mean, I know you don't know exactly what they're going to say, but what, what might they argue from a given area? Well, so, so somebody might say, look to a particular document. You know, there's the sustainable development goals now has a, a provision that, that looks at energy, renewable energy, for example. And so, but it's a, it's not a complex, complex, wordly worded document. And so one side might say, well, renewable energy for developing nations means one thing and, but for a developed country, it means another. Right. And so the folks from the developing side might say, well, you know, the, the developed nations have an obligation to provide support for us. Right. And that developed nations might be arguing, well, you know, that we're, we're going to continue doing what we're doing because it's the best use of our, the highest and best use of our resources and where the developing nations might say that, well, you've got to take into consideration that what you're doing is impacting us and the availability of those resources for the future. So there are resources all around the world, some of which are tied to national jurisdictions and some that are part of what you might refer to as the common heritage of mankind. And so they're competing interests about how best to use those resources. Should they go to those who have developed the technological and capacity to exploit those resources or should the benefits of that also be shared with nations that don't have that technological capacity. Wow. So they, the students who make these arguments can find policy issues everywhere. Right. And dwell on however many they wish. I mean, how much time do they have to present their case? Well, we're only, we've got a, we've got a limited amount of time. They could go in on for a long time. We've tried to narrow it down. So we've asked them to prepare 10 minutes and they may get interrupted by the judges and Chief Justice Recton-Wald is the president of the court will have the discretion to extend their time. So we've built that into the program and we're hoping to get some exchange and both the way the moot court is set up later, the one that's going to take place on September 5th at the Kauai Convention Center. We're going to show an edited version of that moot court that takes place at the Kauai Supreme Court and then we're going to have the students come on and share their perspectives. So they may touch on issues that weren't in the, on the video. We'll look at it with them the day before. At prey. Right. So just looking back retrospective about what we've discussed. Yeah. And then, you know, their experiences with it, then we'll have the panel international environmental jurists react, you know, their perspective on that issue. And then we'll open it up. We'll have a facilitated dialogue with the other attendees at the, at the Congress. So it'll be an active, interactive workshop. And so maybe individuals whose regions weren't represented might want, might want to talk about some of those issues and get some reactions from the, either the judges or the, or the students. Very interesting, very provocative. And it actually, there's one more step to it. Two more. Yeah. And this might lead us into the, the motions, but there is a parallel motion that has been submitted for vote. They're counting the votes right now, so we don't know whether it's passed or not. But our partners at PACE in New York has submitted a motion that asks the IUCN assembly to encourage the United Nations General Assembly to ask the International Court of Justice for an advisory opinion on the sustainable development goals, which includes climate change. And so we'll use this as an opportunity to say, hey, look, this is the goal. If it passes, then we need to do a lobbying campaign to get nations within the General Assembly to vote for that request. And then it'll go to the International Court of Justice. So, you know, inherent in that process is that they will be bound right by asking for the vote and by the United Nations asking for the vote. So in a phrase though, what, what will the, what will the International Court be asked to rule on? Yeah, so the that's part of the debate, right? Tony Opposer really wants it to be focused on the climate crisis. There are others that feel that this is better phrased as one of the sustainable development goals. So it was most recently adopted by the United Nations General Assembly. And so that would be the more strategic way of addressing the question. But the question that that we are posing in our MuCourt workshop is what is the responsibility of states under international law to address the effects of the climate crisis on President Future Generations? That's a hard one. That's the elusive part. And so, but the, you know, similarly difficult questions have been asked of the ICJ before. One of the very first in international environmental law decisions was actually the Nuclear Weapons Advisory opinion. You know, so talking about the impacts of using nuclear weapons on the environment. And so there was some very strong language that came out of that decision. Also some language that made some people uncomfortable because the court wasn't prepared to set, to rule out the possibility of you using nuclear weapons in a defensive or as a deterrent. So, yeah. Yeah. Well, this is really cutting edge, isn't it? Because I mean from where this is going it could have a huge effect, maybe even a greater effect at the end of the day than COP 21 happened. Because it hasn't been ratified. Right. Yeah. The thing I wanted to ask you is so when this is over and it'll be an extended convention. Right. Congress next week and into the week after. What happens then? Is that it all finished? No. Or is the William S. Richardson School Law your program have some other plans following all of that? No, absolutely. We're going to be building on that. We're hoping that this initiative with the Moot Court takes on a life of its own, is embraced by their folks. We'll be involved with IUCN on an ongoing basis. We will be involved with the World Commission on Environmental Law and their Global Judicial Institute for an Environment. We'll be providing training. You've talked with some of the folks from India and Brazil about our environmental court being a model for the rest of the world and so we're going to we're going to work on that. There are some enforcement issues that we're exploring. Maybe we can provide some training for prosecutors and judges and other parts of the Southeast Asia and the Pacific Islands, for example. Lots of opportunities for our students to get involved in these issues. Whatever they come. Right. And we even have one of the first things one of my first acts when I got to the Environmental Law Program was authorizing a travel grant for one of our students to attend the IUCN Congress in Jeju and she's now doing work as an Ocean Policy Consultant while she's getting her PhD at the University of Australia but she's been involved in discussions at the United Nations, their preparatory committee meetings to flesh out the governance structure for marine areas beyond national jurisdiction. So these common resources how do we deal with bioprospecting and those kinds of questions. And so we've got some of our graduates that are working on some of these really compelling issues. Never stop, David. Never stop. Last question and you're going to look at camera one and talk to the people and tell them why they should care about all this. What does it mean to the men and the women on the street? Well I think that the ability to use the rule of law to effect your conservation goals is something that holds a lot of promise for the future. And we're looking at the students that we are teaching to provide those voices and we're looking to them to cooperate with others around the world. Sometimes you get excellent ideas from people they're facing different situations and so having this opportunity to interact with conservation leaders and international environmental lawyers from all over the world is a valuable experience not only for our students but for the community at large. Thank you David Forman director of the environmental law program at William S. Richardson School of Law University of Hawaii. By the way Think Tech cares deeply about this. We've had a number of the names in this area of legal thought on the show here and we are covering the World Conservation Congress next week like a blanket. All right. We have Anu Hiddle going down there Kirsten Turner and Cowie Lucas all three of them going to be covering it. You will see more here on Think Tech about the WCC. Thanks so much David. My pleasure Jay. Thanks for having me.