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Iclr, Volume 29, Number 2 BOSTON COLLEGE INTERNATIONAL AND COMPARATIVE LAW REVIEW Vol. XXIX Spring 2006 No. 2 ARTICLE O CANADA!: THE STORY OF RAFFERTY, OLDMAN, AND THE GREAT WHALE Oliver A. Houck [pages 175–244] Abstract: In the late twentieth century, environmental policy swept the world, and among its primary instruments were processes for evaluating the adverse impacts of proposed actions. In all countries these processes quickly came into conºict with established bureaucracies, none more powerful and resistant to change than those in charge of water resources development. They also conºicted, in many cases, with established ideas of governance, right down to principles of federalism, judicial review, and the separation of powers. So it was in Canada, where in the late l980s three water resources development schemes, each one more enormous, initiated the commonwealth’s approach to environmental impact assess- ment and challenged the ability of the national government to protect environmental values at all. The litigation was heavy and prolonged. In the end, federal environmental authority gained a signiªcant foothold, but one insufªcient to protect the natural and human resources at stake. The litigation also illustrated, as has been the experience in the United States, the critical importance of citizen enforcement actions and judicial review in securing the objectives of environmental law. NOTES BUILDING FORTRESS INDIA: SHOULD A FEDERAL LAW BE CREATED TO ADDRESS PRIVACY CONCERNS IN THE UNITED STATES-INDIAN BUSINESS PROCESS OUTSOURCING RELATIONSHIP? Bryan Bertram [pages 245–268] Abstract: In the past few years, there has been a substantial surge in the use of Indian vendors by U.S. businesses for the performance of busi- ness processes. These types of engagements, referred to as business pro- cess outsourcing, routinely involve the transfer of sensitive personal data between U.S. and Indian ªrms. Thus, these types of transfers have raised concerns over the security of such data. The United States cur- rently regulates these data transfers by industry sector. This policy con- trasts sharply with other jurisdictions such as Canada, Japan, and the European Union where more broadly deªned regulations set principles for the protection of data generally. This Note will examine whether the United States should enact broader based legislation in order to regu- late the growing trend of business process outsourcing to India and pro- tect sensitive data that gives rise to personal privacy concerns. WE ARE THE WORLD? JUSTIFYING THE U.S. SUPREME COURT’S USE OF CONTEMPORARY FOREIGN LEGAL PRACTICE IN ATKINS, LAWRENCE, AND ROPER Andrew R. Dennington [pages 269–296] Abstract: Since 2002, the U.S. Supreme Court has consulted contempo- rary foreign legal judgments to help interpret, and dramatically expand, the substantive scope of the Bill of Rights in three landmark cases. It has not, however, explained when and why contemporary foreign legal ma- terials are relevant to a principled, objective mode of constitutional in- terpretation. This Note represents an attempt to do so. It postulates two rationales that could retrospectively justify the Court’s methodology in Atkins v. Virginia (2002), Lawrence v. Texas (2003), and Roper v. Simmons (2005). One is grounded in a theory of Anglo-American common law, the other rests on jus cogens and customary international law. This Note then compares the two and concludes that the jus cogens theory could best address critics’ concerns that the use of foreign law will undermine U.S. sovereignty, reduce civil liberties in this country, and vastly increase judicial discretion. HYDROELECTRIC POWER PRODUCTION IN COSTA RICA AND THE THREAT OF ENVIRONMENTAL DISASTER THROUGH CAFTA R. Victoria Lindo [pages 297–322] Abstract: CAFTA’s ratiªcation threatens Costa Rica’s environmental in- tegrity by permitting foreign investors virtual free reign to destroy its pre- cious waterways through environmentally unsound methods of hydroe- lectric power production. While CAFTA contains provisions that appear to protect the environments of the Central American signatory states, it also contains provisions similar to NAFTA’s Chapter 11, which foreign in- vestors have used to weaken environmental laws by suing those states that have dared to enforce them. This Note explores existing environmental laws in Costa Rica governing hydroelectric power production, including its privatization. It also discusses and compares NAFTA’s Chapter 11 to CAFTA’s Chapter 10 in order to illustrate the threat to Costa Rica’s wa- terways through private hydroelectric power production. This Note then argues that, in order to preserve its waterways, Costa Rica must not ratify CAFTA. Alternately, it argues that if Costa Rica does ratify CAFTA, the state should consider adopting both preventative and remedial measures to weaken its blow. INTERNATIONAL SPAM REGULATION & ENFORCEMENT: RECOMMENDATIONS FOLLOWING THE WORLD SUMMIT ON THE INFORMATION SOCIETY Meyer Potashman [pages 323–352] Abstract: Unsolicited bulk e-mail, or “spam,” is often called the scourge of the information age. Because of the cross-border nature of the Inter- net, both governments and the private sector are facing many chal- lenges in combating cross-border spam. In recent years, through the World Summit on the Information Society (WSIS), the international community has committed itself to ªght spam on a global level through increased cooperation and enforcement of spam laws. This Note evalu- ates many of the issues involved in preventing cross-border spam, dis- cusses the latest methods of enforcement in both the private and public sectors, and recommends an approach to the problem in light of the commitments made at WSIS. FOR THE BEST INTERESTS OF THE CHILDREN: WHY THE HAGUE CONVENTION ON INTERCOUNTRY ADOPTION NEEDS TO GO FARTHER, AS EVIDENCED BY IMPLEMENTATION IN ROMANIA AND THE UNITED STATES Elisabeth J. Ryan [pages 353–383] Abstract: International adoption is a common occurrence in today’s so- ciety. In order to address the dangers linked with international adoption such as baby trafªcking, the members of the Hague Conference on Pri- vate International Law produced the Hague Convention on Intercountry Adoption in 1993, setting forth a minimum base of standards that every ratifying government must abide by, placing the best interests of the child above all other considerations. The United States, via the Intercountry Adoption Act of 2000, is well on its way to fully realizing the Hague Con- vention mandates. Romania, however, has struggled to care for its chil- dren and subsequently imposed an international adoption ban. This Note argues that the Hague Conference members need to amend the Hague Convention in order to implement assistance for countries that may struggle with its mandates. It also argues that, in order to avoid more nu- anced problems in implementation, the Hague Convention should clarify its vague language. Finally, it should include appeals and enforcement procedures so that conºicts between two countries over an adoption pro- ceeding can be dealt with by a third party. O CANADA!: THE STORY OF RAFFERTY, OLDMAN, AND THE GREAT WHALE Oliver A. Houck* Abstract: In the late twentieth century, environmental policy swept the world, and among its primary instruments were processes for evaluating the adverse impacts of proposed actions. In all countries these processes quickly came into conºict with established bureaucracies, none more powerful and resistant to change than those in charge of water resources development. They also conºicted, in many cases, with established ideas of governance, right down to principles of federalism, judicial review, and the separation of powers. So it was in Canada, where in the late l980s three water resources development schemes, each one more enormous, initiated the commonwealth’s approach to environmental impact assess- ment and challenged the ability of the national government to protect environmental values at all. The litigation was heavy and prolonged. In the end, federal environmental authority gained a signiªcant foothold, but one insufªcient to protect the natural and human resources at stake. The litigation also illustrated, as has been the experience in the United States, the critical importance of citizen enforcement actions and judicial review in securing the objectives of environmental law. Introduction In the late 1980s, environmental law came to Canada, riding on the backs of three water projects that, together, challenged the gov- ernment’s approach to environmental protection right down to con- stitutional principles and the allocation of powers. The ªrst made en- vironmental impact review law; the second made it constitutional; the third made it work. The litigation was ªerce and of ªrst impression. It was surrounded by equally ªerce politics and the passions of people so thoroughly con- * Professor of Law, Tulane University. The research assistance of Christa Fanelli, Cashauna Hill and Tinnetta Rockquemore, Tulane Law School ’05, and Lena Giangrosso, ’07, is acknowledged with gratitude. For the author’s histories of similar United States environmental cases, see Richard J. Lazarus & Oliver A. Houck, Environmental Law Stories (2005); Oliver A. Houck, More Unªnished Stories: Lucas, Atlanta Coalition, and Palila/Sweet Home, 75 U. Colo. L. Rev. 331 (2004); Oliver Houck, Unªnished Stories, 73 U. Colo. L. Rev. 867 (2002); Oliver A. Houck, The Water, the Trees, and the Land: Three Nearly Forgotten Cases That Changed the American Landscape, 70
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