Pub Date : 2021-08-04DOI: 10.1093/oso/9780192846501.003.0005
D. Behn, O. Fauchald, M. Langford
The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges through a largely empirical perspective. Drawing on three datasets, the authors seek to move beyond the current theorizing in the literature on this theme and base their findings on a comprehensive de jure and de facto analysis. After having discussed the idea of global public goods, they find that the regime high levels of de facto exclusion and in places rivalry, together with an uneven distribution of benefits, such that the international investment regime only partly fits the requirements for a global public good.
{"title":"A Global Public Good? An Empirical Perspective on International Investment Law and Arbitration","authors":"D. Behn, O. Fauchald, M. Langford","doi":"10.1093/oso/9780192846501.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780192846501.003.0005","url":null,"abstract":"The relationship between the concepts of international investment law and global public goods poses two essential challenges. The first is whether the international investment regime by design is a global public good. The second is whether the regime delivers benefits that are public and global in nature. This chapter addresses these two challenges through a largely empirical perspective. Drawing on three datasets, the authors seek to move beyond the current theorizing in the literature on this theme and base their findings on a comprehensive de jure and de facto analysis. After having discussed the idea of global public goods, they find that the regime high levels of de facto exclusion and in places rivalry, together with an uneven distribution of benefits, such that the international investment regime only partly fits the requirements for a global public good.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127751956","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-04DOI: 10.1093/oso/9780192846501.003.0011
Paula Wojcikiewicz Almeida
By developing international law, international courts – ‘intermediate Global Public Goods (GPG)’ – can also contribute to the protection and promotion of final GPG. The International Court of Justice (ICJ), in particular, is capable of promoting GPG by adjudicating inter-state claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. This chapter argues that the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever GPG are at issue. Most procedural rules can be adjusted and tailored for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy.
{"title":"Enhancing ICJ Procedures in Order to Promote Fundamental Values","authors":"Paula Wojcikiewicz Almeida","doi":"10.1093/oso/9780192846501.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780192846501.003.0011","url":null,"abstract":"By developing international law, international courts – ‘intermediate Global Public Goods (GPG)’ – can also contribute to the protection and promotion of final GPG. The International Court of Justice (ICJ), in particular, is capable of promoting GPG by adjudicating inter-state claims. However, one of the main obstacles faced by the World Court relates to the existing tension between the bilateral nature of its own proceedings and the multilateral nature of the conflicting substantive law. Considering that procedure may guide and shape the application of substantive law, it will be argued that it should itself be interpreted and developed in a manner to ensure community interests. This chapter argues that the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever GPG are at issue. Most procedural rules can be adjusted and tailored for multiparty aspects with the aim of protecting community interests and enhancing the international court’s legitimacy.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"2492 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127478506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-04DOI: 10.1093/oso/9780192846501.003.0007
Fulvia Staiano
The achievement of ‘universal and equitable access to safe and affordable drinking water for all’ is among the goals set by the 2030 Agenda for Sustainable Development. This objective is related to the recognition of water as a human right, and to the qualification of water as a vital resource to preserve. This chapter reflects on the possibility of qualifying water as a global public good (albeit an impure one). To this end, and without any pretence of exhaustiveness, the chapter examines significant examples from international and domestic jurisprudence that show an emerging judicial awareness of the broader collective impact of questions related to the preservation of and access to water. In this context, specific attention is paid to the role played by environmental non-governmental organizations (NGOs) in fostering such awareness, thanks to the recognition of procedural rights before international and domestic courts.
{"title":"Water as an Impure Global Public Good and the Impact of Procedural Rights on its Protection","authors":"Fulvia Staiano","doi":"10.1093/oso/9780192846501.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780192846501.003.0007","url":null,"abstract":"The achievement of ‘universal and equitable access to safe and affordable drinking water for all’ is among the goals set by the 2030 Agenda for Sustainable Development. This objective is related to the recognition of water as a human right, and to the qualification of water as a vital resource to preserve. This chapter reflects on the possibility of qualifying water as a global public good (albeit an impure one). To this end, and without any pretence of exhaustiveness, the chapter examines significant examples from international and domestic jurisprudence that show an emerging judicial awareness of the broader collective impact of questions related to the preservation of and access to water. In this context, specific attention is paid to the role played by environmental non-governmental organizations (NGOs) in fostering such awareness, thanks to the recognition of procedural rights before international and domestic courts.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131275619","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-04DOI: 10.1093/oso/9780192846501.003.0016
Dana Schmalz
How to allocate responsibility for refugee protection between states forms a salient question in international refugee law. Explicit principles are lacking, yet there is a growing consensus that the issue of responsibility-sharing relates to the system’s most salient deficiencies. Within Europe, the sharing of responsibility for refugees is equally contested. Explicit legal rules exist within the Common European Asylum System (CEAS) of the EU on the one hand, and the European Convention of Human Rights (ECHR) on the other. The chapter explores the schemes of responsibility-sharing that underlie these two frameworks, the scheme of layered responsibility under the ECHR, and the scheme of alternative responsibility under the Dublin legislation of the CEAS. It discusses the respective implications for the regulation of borders and safeguarding of rights. It points to the role of individual procedural rights arguing that lessons can be learned from the European case which can also apply to the international level.
{"title":"Fences, Fiction, and the Magic Mountain","authors":"Dana Schmalz","doi":"10.1093/oso/9780192846501.003.0016","DOIUrl":"https://doi.org/10.1093/oso/9780192846501.003.0016","url":null,"abstract":"How to allocate responsibility for refugee protection between states forms a salient question in international refugee law. Explicit principles are lacking, yet there is a growing consensus that the issue of responsibility-sharing relates to the system’s most salient deficiencies. Within Europe, the sharing of responsibility for refugees is equally contested. Explicit legal rules exist within the Common European Asylum System (CEAS) of the EU on the one hand, and the European Convention of Human Rights (ECHR) on the other. The chapter explores the schemes of responsibility-sharing that underlie these two frameworks, the scheme of layered responsibility under the ECHR, and the scheme of alternative responsibility under the Dublin legislation of the CEAS. It discusses the respective implications for the regulation of borders and safeguarding of rights. It points to the role of individual procedural rights arguing that lessons can be learned from the European case which can also apply to the international level.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132881761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-08-04DOI: 10.1093/oso/9780192846501.003.0014
Peter-Tobias Stoll
Many efforts of international cooperation serve to organize global public goods, to set up regimes for global commons, and to promote fundamental values. Friedmann welcomed these developments as a law of cooperation, where states go beyond merely coordinating sovereign interests but indeed reach out for collective action. Friedmann’s diagnosis correctly described the essence of today’s international law and its developments. Diverse international regimes exist, particularly in areas such as human rights, environmental protection, and economic relations. However, public goods and fundamental values can hardly be achieved by those regimes in separation. A proper interaction across the various agreements and regimes is vital. States should join to achieve common ends. A ‘new’ law of cooperation is needed, aimed at promoting public goods and values across the diverse regimes and concerned about the integrity of the international legal order also addressing dimensions of efficiency and legitimacy.
{"title":"A ‘New’ Law of Cooperation: Collective Action across Regimes for the Promotion of Public Goods and Values versus Fragmentation","authors":"Peter-Tobias Stoll","doi":"10.1093/oso/9780192846501.003.0014","DOIUrl":"https://doi.org/10.1093/oso/9780192846501.003.0014","url":null,"abstract":"Many efforts of international cooperation serve to organize global public goods, to set up regimes for global commons, and to promote fundamental values. Friedmann welcomed these developments as a law of cooperation, where states go beyond merely coordinating sovereign interests but indeed reach out for collective action. Friedmann’s diagnosis correctly described the essence of today’s international law and its developments. Diverse international regimes exist, particularly in areas such as human rights, environmental protection, and economic relations. However, public goods and fundamental values can hardly be achieved by those regimes in separation. A proper interaction across the various agreements and regimes is vital. States should join to achieve common ends. A ‘new’ law of cooperation is needed, aimed at promoting public goods and values across the diverse regimes and concerned about the integrity of the international legal order also addressing dimensions of efficiency and legitimacy.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132468582","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Millions of people have been depending on commons such as forests, pastures, grazing lands, and fisheries to meet their basic needs for centuries. Because these commons are often left unrecognized, they face the threat of enclosure, which risks depriving peoples in the Global South from their most basic access to essential resources. Legal scholars are therefore called upon to rethink the prevailing system of global governance. Very little has been said about the role that international law could play in the empowerment of communities in the self-management of their resources and in the resistance against enclosure. It remains unclear to what extent international law can require states to recognize the commons as a democratic practice of its own and protect marginalized populations from enclosure and dispossession. This chapter asks the question as to whether international law can be rethought as part of the solution in saving the commons from enclosure.
{"title":"Commons, Global (Economic) Governance, and Democracy: Which Way Forward for International Law?","authors":"Samuel Cogolati, J. Wouters","doi":"10.2139/ssrn.3271680","DOIUrl":"https://doi.org/10.2139/ssrn.3271680","url":null,"abstract":"Millions of people have been depending on commons such as forests, pastures, grazing lands, and fisheries to meet their basic needs for centuries. Because these commons are often left unrecognized, they face the threat of enclosure, which risks depriving peoples in the Global South from their most basic access to essential resources. Legal scholars are therefore called upon to rethink the prevailing system of global governance. Very little has been said about the role that international law could play in the empowerment of communities in the self-management of their resources and in the resistance against enclosure. It remains unclear to what extent international law can require states to recognize the commons as a democratic practice of its own and protect marginalized populations from enclosure and dispossession. This chapter asks the question as to whether international law can be rethought as part of the solution in saving the commons from enclosure.","PeriodicalId":268388,"journal":{"name":"The Protection of General Interests in Contemporary International Law","volume":"121 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121691998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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