Pub Date : 2020-04-03DOI: 10.1163/23527072-20191017
M. Rabinovych
The 2030 Agenda and pertinent EU law and policy are marked by an emphasis on the interlinkages between the Sustainable Development Goals. With this in mind, this article explores whether the Agenda and the respective EU law and policy offer a conceptually clear and instrumental vision of the interlinkages between economic development (Goal 8) and the rule of law (Goal 16). It is argued that both the Agenda and relevant EU policies view the rule of law both as an independent value and as an instrument of economic development, without distinguishing the components that rule of law is comprised of. The article discusses the Eastern dimension of the European Neighborhood Policy as a case study to contextualize the analysis. Based on its findings regarding the interlinkages between the rule of law and economic development in the 2030 Agenda and relevant EU policy, the article also sets out certain policy recommendations for creating a sustainable development-oriented design of the Eastern dimension of the European Neighbourhood Policy.
{"title":"Where Economic Development Meets the Rule of Law? Promoting Sustainable Development Goals Through the European Neighborhood Policy","authors":"M. Rabinovych","doi":"10.1163/23527072-20191017","DOIUrl":"https://doi.org/10.1163/23527072-20191017","url":null,"abstract":"The 2030 Agenda and pertinent EU law and policy are marked by an emphasis on the interlinkages between the Sustainable Development Goals. With this in mind, this article explores whether the Agenda and the respective EU law and policy offer a conceptually clear and instrumental vision of the interlinkages between economic development (Goal 8) and the rule of law (Goal 16). It is argued that both the Agenda and relevant EU policies view the rule of law both as an independent value and as an instrument of economic development, without distinguishing the components that rule of law is comprised of. The article discusses the Eastern dimension of the European Neighborhood Policy as a case study to contextualize the analysis. Based on its findings regarding the interlinkages between the rule of law and economic development in the 2030 Agenda and relevant EU policy, the article also sets out certain policy recommendations for creating a sustainable development-oriented design of the Eastern dimension of the European Neighbourhood Policy.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115356209","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 : 2020-04-03DOI: 10.1163/23527072-20191019
Laure-Elise Mayard
Hydropower regulation involves an increasingly complex set of actors, scales and legal regimes. The role that international law plays in regulating hydropower, and other sustainable development issues, is challenged by this pluralism because of international law’s restrictive traditional theoretical framework, which appears to be ill-equipped to fully grasp and represent significant features of pluralistic regulation. A broader conceptualization of international law could create a more pluralist, holistic and integrated approach to regulation, making it more attuned to reality and to sustainable development objectives. This article adopts a transnational law approach embracing in a more flexible manner different elements which influence regulation and which escape existing legal categories. Hydropower projects in the Lower Mekong River Basin illustrate the mismatch between regulation mainly focused on the State, investment-related actors and regimes of large projects, on the one hand, and the growing pluralism driven by the involvement of non-State actors, specificities of environmental regulation and different levels of inquiry, on the other hand. The analysis explores the ‘blind spots’ of international law in its regulation of hydropower projects and considers the possibilities in which a transnational law approach broadens the vision of existing international law to be more pluralist.
{"title":"Can A Transnational Law Approach Offer A Better Understanding of International Law’s Contribution to Sustainable Hydropower Projects? A Test Case from the Mekong River Basin","authors":"Laure-Elise Mayard","doi":"10.1163/23527072-20191019","DOIUrl":"https://doi.org/10.1163/23527072-20191019","url":null,"abstract":"Hydropower regulation involves an increasingly complex set of actors, scales and legal regimes. The role that international law plays in regulating hydropower, and other sustainable development issues, is challenged by this pluralism because of international law’s restrictive traditional theoretical framework, which appears to be ill-equipped to fully grasp and represent significant features of pluralistic regulation. A broader conceptualization of international law could create a more pluralist, holistic and integrated approach to regulation, making it more attuned to reality and to sustainable development objectives.\u0000This article adopts a transnational law approach embracing in a more flexible manner different elements which influence regulation and which escape existing legal categories. Hydropower projects in the Lower Mekong River Basin illustrate the mismatch between regulation mainly focused on the State, investment-related actors and regimes of large projects, on the one hand, and the growing pluralism driven by the involvement of non-State actors, specificities of environmental regulation and different levels of inquiry, on the other hand. The analysis explores the ‘blind spots’ of international law in its regulation of hydropower projects and considers the possibilities in which a transnational law approach broadens the vision of existing international law to be more pluralist.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127510489","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 : 2020-04-03DOI: 10.1163/23527072-20191016
Stellina Jolly, A. Trivedi
The sustainable development goals (sdgs) with their integrated linkage of development and environmental concerns have been hailed as a paradigm shift in the attainment of sustainability. The article attempts to understand the normative framework that underwrites international law and sdg-13 vis-a-vis climate change with a special focus on climate-induced displacement. It explores the existing provisions, limitations, and gaps under international law with regard to displacement associated with climate change. More specifically, the analysis assesses the potential of hybrid law in promoting the goals of sdg-13. The hybrid law approach proposed in this article involves the amalgamation of substantive norms from different branches of international law, integration of norms of differing legal status and engagement of state and non-state actors. The analysis explores the concept of hybrid law, surveys the Nansen Protection Agenda and the Global Compact on Migration and analyses their suitability in exploring solutions to climate displacement. The article evaluates how the adoption of the sdgs provides a foundation for the development of a hybrid law in examining solutions to climate displacement under sdg-13.
{"title":"Implementing the SDG-13 through the Adoption of Hybrid Law: Addressing Climate-Induced Displacement","authors":"Stellina Jolly, A. Trivedi","doi":"10.1163/23527072-20191016","DOIUrl":"https://doi.org/10.1163/23527072-20191016","url":null,"abstract":"The sustainable development goals (sdgs) with their integrated linkage of development and environmental concerns have been hailed as a paradigm shift in the attainment of sustainability. The article attempts to understand the normative framework that underwrites international law and sdg-13 vis-a-vis climate change with a special focus on climate-induced displacement. It explores the existing provisions, limitations, and gaps under international law with regard to displacement associated with climate change. More specifically, the analysis assesses the potential of hybrid law in promoting the goals of sdg-13. The hybrid law approach proposed in this article involves the amalgamation of substantive norms from different branches of international law, integration of norms of differing legal status and engagement of state and non-state actors. The analysis explores the concept of hybrid law, surveys the Nansen Protection Agenda and the Global Compact on Migration and analyses their suitability in exploring solutions to climate displacement. The article evaluates how the adoption of the sdgs provides a foundation for the development of a hybrid law in examining solutions to climate displacement under sdg-13.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134356359","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 : 2020-04-03DOI: 10.1163/23527072-00201001
Cornelis Verburg, Jaap Waverijn
1 International Energy Agency, Perspectives for the Energy Transition – Investment Needs for a Low Carbon Energy System (Bonn: iea/irena, 2017), https://www.iea.org/publications/ insights/insightpublications/PerspectivesfortheEnergyTransition.pdf, accessed 1 November 2018, p. 8. * The authors would like to emphasize that the names of the authors appear in alphabetical order, both have contributed equally. ** The Special Issue ‘International Law for the Sustainable Development Goals’ is a research outcome of the 2017–2018 Workshop Series ‘International Law for the Sustainable Development Goals’ organised by the Department of Transboundary Legal Studies, Faculty of Law, University of Groningen. Mando Rachovitsa and Marlies Hesselman led the organisation of these workshops. The series included 8 workshops which explored the role and relevance of international law to the implementation of the Sustainable Development Goals. The Special Issue includes some of the papers presented at the workshops and papers submitted to an open Call for Papers. More information is available at https://www.rug.nl/rechten/ congressen/il4sdgs/.
{"title":"Liberalizing the Global Supply Chain of Renewable Energy Technology: The Role of International Investment Law in Facilitating Flows of Foreign Direct Investment and Trade","authors":"Cornelis Verburg, Jaap Waverijn","doi":"10.1163/23527072-00201001","DOIUrl":"https://doi.org/10.1163/23527072-00201001","url":null,"abstract":"1 International Energy Agency, Perspectives for the Energy Transition – Investment Needs for a Low Carbon Energy System (Bonn: iea/irena, 2017), https://www.iea.org/publications/ insights/insightpublications/PerspectivesfortheEnergyTransition.pdf, accessed 1 November 2018, p. 8. * The authors would like to emphasize that the names of the authors appear in alphabetical order, both have contributed equally. ** The Special Issue ‘International Law for the Sustainable Development Goals’ is a research outcome of the 2017–2018 Workshop Series ‘International Law for the Sustainable Development Goals’ organised by the Department of Transboundary Legal Studies, Faculty of Law, University of Groningen. Mando Rachovitsa and Marlies Hesselman led the organisation of these workshops. The series included 8 workshops which explored the role and relevance of international law to the implementation of the Sustainable Development Goals. The Special Issue includes some of the papers presented at the workshops and papers submitted to an open Call for Papers. More information is available at https://www.rug.nl/rechten/ congressen/il4sdgs/.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117047344","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 : 2020-04-03DOI: 10.1163/23527072-20191014
D. Jong
Target 16.6 of the 2015 Sustainable Development Goals (sdgs) seeks to create ‘effective, accountable and transparent institutions at all levels’ for the purpose of achieving sustainable development. Nevertheless, the inherent vagueness of the notions of transparency and accountability poses difficulties for achieving the target. This is why this article examines how these notions have been conceptualized in international legal discourse and applied in practice. It does so within the context of the trade in natural resources that finance armed conflict, which is considered detrimental to the development opportunities of developing countries. The article examines how two of the most important initiatives in this field, namely the Kimberley Process for the Certification of Rough Diamonds and the oecd Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-affected and High-risk Areas, operationalize transparency and accountability. It posits that both initiatives fall short of establishing full accountability. However, notwithstanding their flaws and limitations, they make a valuable contribution to achieving target 16.6.
{"title":"‘A Rough Trade’? Towards a More Sustainable Minerals Supply Chain","authors":"D. Jong","doi":"10.1163/23527072-20191014","DOIUrl":"https://doi.org/10.1163/23527072-20191014","url":null,"abstract":"Target 16.6 of the 2015 Sustainable Development Goals (sdgs) seeks to create ‘effective, accountable and transparent institutions at all levels’ for the purpose of achieving sustainable development. Nevertheless, the inherent vagueness of the notions of transparency and accountability poses difficulties for achieving the target. This is why this article examines how these notions have been conceptualized in international legal discourse and applied in practice. It does so within the context of the trade in natural resources that finance armed conflict, which is considered detrimental to the development opportunities of developing countries. The article examines how two of the most important initiatives in this field, namely the Kimberley Process for the Certification of Rough Diamonds and the oecd Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-affected and High-risk Areas, operationalize transparency and accountability. It posits that both initiatives fall short of establishing full accountability. However, notwithstanding their flaws and limitations, they make a valuable contribution to achieving target 16.6.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133463641","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 : 2019-01-24DOI: 10.1163/23527072-20191021
Veronika Flegar, Emma Iedema
This article sheds light on the explicit identification and labelling of forced migrant women and girls as vulnerable and the effect this seems to have on their human rights protection under the Convention on the Elimination of Discrimination Against Women (cedaw). The article focuses on the principal international body directly concerned with the human rights of women and girls, the Committee on the Elimination of Discrimination Against Women (cedaw Committee) and combines legal doctrinal analysis with a critical reflection in light of the normative-theoretical notion of universal vulnerability. The notion of universal vulnerability has been suggested to close protection gaps and contribute to a more inclusive human rights framework; yet, the vulnerability label has been criticized as potentially stigmatizing and paternalizing. The article therefore critically assesses whether and to what extent explicit vulnerability references by the cedaw Committee contribute to the protection and/or stigmatization of forced migrant women and girls. The analysis reveals that the vulnerability label adopted by the cedaw Committee is not (yet) entirely in line with the universal vulne-rability notion’s potential for the protection of human rights. Yet, the article suggests that vulnerability references can nevertheless contribute to human rights protection since they help to identify protection priorities and clarify state obligations towards those identified as vulnerable. This positive effect for the protection of human rights is likely to be highest the more attention is being paid to the avoidance of stigmatization.
{"title":"The Use of the ‘Vulnerability’ Label by the Committee on the Elimination of Discrimination Against Women: Protecting or Stigmatizing Women and Girls in the Forced Migration Context?","authors":"Veronika Flegar, Emma Iedema","doi":"10.1163/23527072-20191021","DOIUrl":"https://doi.org/10.1163/23527072-20191021","url":null,"abstract":"This article sheds light on the explicit identification and labelling of forced migrant women and girls as vulnerable and the effect this seems to have on their human rights protection under the Convention on the Elimination of Discrimination Against Women (cedaw). The article focuses on the principal international body directly concerned with the human rights of women and girls, the Committee on the Elimination of Discrimination Against Women (cedaw Committee) and combines legal doctrinal analysis with a critical reflection in light of the normative-theoretical notion of universal vulnerability. The notion of universal vulnerability has been suggested to close protection gaps and contribute to a more inclusive human rights framework; yet, the vulnerability label has been criticized as potentially stigmatizing and paternalizing. The article therefore critically assesses whether and to what extent explicit vulnerability references by the cedaw Committee contribute to the protection and/or stigmatization of forced migrant women and girls. The analysis reveals that the vulnerability label adopted by the cedaw Committee is not (yet) entirely in line with the universal vulne-rability notion’s potential for the protection of human rights. Yet, the article suggests that vulnerability references can nevertheless contribute to human rights protection since they help to identify protection priorities and clarify state obligations towards those identified as vulnerable. This positive effect for the protection of human rights is likely to be highest the more attention is being paid to the avoidance of stigmatization.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123189877","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 : 2018-11-25DOI: 10.1163/23527072-00101008
E. Allen
As at the start of 2018, at least eight low-lying Pacific islands have been found to have disappeared as a result of climate change induced rising sea levels and more seem likely in future to suffer the same fate. Because international law demands territory as a requirement of statehood, this could have implications for the affected states’ continuation and the livelihood of the populations displaced. Scholars in recent years have therefore pointed to various strategies for the disappearing island community to maintain a territorial dimension. This article examines in particular the as yet largely uninvestigated option of pursuing remedial territory, i.e. territory transferred from responsible to injured states as redress for climate change induced deterritorialisation. Applying the rules on state responsibility, it considers whether at least some emitting third states may be obliged to provide a portion of their territory as reparation for the commission of an internationally wrongful act.
{"title":"Climate Change and Disappearing Island States: Pursuing Remedial Territory","authors":"E. Allen","doi":"10.1163/23527072-00101008","DOIUrl":"https://doi.org/10.1163/23527072-00101008","url":null,"abstract":"As at the start of 2018, at least eight low-lying Pacific islands have been found to have disappeared as a result of climate change induced rising sea levels and more seem likely in future to suffer the same fate. Because international law demands territory as a requirement of statehood, this could have implications for the affected states’ continuation and the livelihood of the populations displaced. Scholars in recent years have therefore pointed to various strategies for the disappearing island community to maintain a territorial dimension. This article examines in particular the as yet largely uninvestigated option of pursuing remedial territory, i.e. territory transferred from responsible to injured states as redress for climate change induced deterritorialisation. Applying the rules on state responsibility, it considers whether at least some emitting third states may be obliged to provide a portion of their territory as reparation for the commission of an internationally wrongful act.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128783479","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 : 2018-11-23DOI: 10.1163/23527072-00101009
J. Viñuales
If one could truly select a number of directions where research on environmental law, including its international dimensions, should focus in the future, the selection process would have to be based not only on an understanding of the state of the discipline, but more generally on an assessment, or at least a reasoned and informed opinion, of the state of the challenges faced by the discipline. And such challenges could not be more important or pressing than they are now. The terminology used to characterize such challenges varies, much like the examples, which abound, from catastrophic climate change or the sixth massive species extinction to the more mundane and humanly understandable air, water and soil pollution. Importantly, the sum of these impacts and their analysis as the combined human geological influence on the Earth System can now rely on the specific terminology of the Anthropocene, i.e. the proposed new epoch of the Geological Time Scale where humans are the defining force.1 Thus characterized, the challenge (the advent of the Anthropocene) and its various manifestations (from climate change to pollution) call, in my view, for two levels of responses, which, in turn, suggest relatively clear directions of research. The first and more basic level of response is the need to move from words to action. Environmental law, including international environmental instruments, is by now a very developed body of law. But it still suffers greatly from an implementation deficit, particularly on the international plane.2 As I shall discuss in section I of this short essay, research on environmental
{"title":"A Concise Research Agenda for Environmental Law","authors":"J. Viñuales","doi":"10.1163/23527072-00101009","DOIUrl":"https://doi.org/10.1163/23527072-00101009","url":null,"abstract":"If one could truly select a number of directions where research on environmental law, including its international dimensions, should focus in the future, the selection process would have to be based not only on an understanding of the state of the discipline, but more generally on an assessment, or at least a reasoned and informed opinion, of the state of the challenges faced by the discipline. And such challenges could not be more important or pressing than they are now. The terminology used to characterize such challenges varies, much like the examples, which abound, from catastrophic climate change or the sixth massive species extinction to the more mundane and humanly understandable air, water and soil pollution. Importantly, the sum of these impacts and their analysis as the combined human geological influence on the Earth System can now rely on the specific terminology of the Anthropocene, i.e. the proposed new epoch of the Geological Time Scale where humans are the defining force.1 Thus characterized, the challenge (the advent of the Anthropocene) and its various manifestations (from climate change to pollution) call, in my view, for two levels of responses, which, in turn, suggest relatively clear directions of research. The first and more basic level of response is the need to move from words to action. Environmental law, including international environmental instruments, is by now a very developed body of law. But it still suffers greatly from an implementation deficit, particularly on the international plane.2 As I shall discuss in section I of this short essay, research on environmental","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"156 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115354425","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 : 2018-07-25DOI: 10.1163/23527072-00101007
E. Baroncini, H. Hestermeyer, Peter-Tobias Stoll, C. Titi, Marina Trunk-Fedorova
The group of five articles forming this special section of Brill Open Law is a selection of the papers presented at the Workshop on “Global Public Goods, Global Commons, Fundamental Values: the Responses of International Economic Law,” organized by the Interest Group (ig) on International Economic Law (iel) of the European Society of International Law (esil) in Naples on September 6th, 2017. The mission of the esil iel ig is to promote research in the field of International Economic Law, endorsing exchange of views among young and experienced scholars, as well as supporting debate and discussion
{"title":"Global Public Goods, Global Commons, Fundamental Values and International Investment Law: the Responses of the New Generation of International Economic Law Agreements and Investment Arbitration Proceedings","authors":"E. Baroncini, H. Hestermeyer, Peter-Tobias Stoll, C. Titi, Marina Trunk-Fedorova","doi":"10.1163/23527072-00101007","DOIUrl":"https://doi.org/10.1163/23527072-00101007","url":null,"abstract":"The group of five articles forming this special section of Brill Open Law is a selection of the papers presented at the Workshop on “Global Public Goods, Global Commons, Fundamental Values: the Responses of International Economic Law,” organized by the Interest Group (ig) on International Economic Law (iel) of the European Society of International Law (esil) in Naples on September 6th, 2017. The mission of the esil iel ig is to promote research in the field of International Economic Law, endorsing exchange of views among young and experienced scholars, as well as supporting debate and discussion","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"212 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115801535","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 : 2018-07-10DOI: 10.1163/23527072-00101006
Pei-Kan Yang
The margin of appreciation doctrine, developed by the European Court of Human Rights, generally refers to how much deference the Court decides to accord individual States in fulfilling their obligations under the European Convention on Human Rights. This concept has been borrowed by the Tribunal of the International Centre for the Settlement of Investment Disputes (ICSID) in Philip Morris v. Uruguay, an investment dispute involving novel cigarette packaging regulations, requiring single presentation for each cigarette brand. While Philip Morris claimed the single presentation requirements (SPR) infringed investors’ rights to use its trademark, the Tribunal applied the doctrine confirming Uruguay’s rights to regulate for the benefit of public health. However, one arbitrator submitted a dissenting opinion rejecting its applicability to the investment dispute given the SPR was adopted without sufficient evidence and due consideration by the Uruguayan government. This paper tries to examine whether and how the margin of appreciation doctrine can be applied by an investment tribunal to evaluate the legality of a newly introduced tobacco control regulation devoid of supporting scientific evidences. This paper argues that such doctrine should be applied cautiously to avoid having an easy excuse for the tribunal to refrain from substantive reviews over investor’s claims, and this doctrine can be adjusted by investment tribunals to establish a balanced standard of review theory, accommodating both the States’ rights to regulate and the private rights of investors.
{"title":"The Margin of Appreciation Debate over Novel Cigarette Packaging Regulations in Philip Morris v. Uruguay","authors":"Pei-Kan Yang","doi":"10.1163/23527072-00101006","DOIUrl":"https://doi.org/10.1163/23527072-00101006","url":null,"abstract":"The margin of appreciation doctrine, developed by the European Court of Human Rights, generally refers to how much deference the Court decides to accord individual States in fulfilling their obligations under the European Convention on Human Rights. This concept has been borrowed by the Tribunal of the International Centre for the Settlement of Investment Disputes (ICSID) in Philip Morris v. Uruguay, an investment dispute involving novel cigarette packaging regulations, requiring single presentation for each cigarette brand. While Philip Morris claimed the single presentation requirements (SPR) infringed investors’ rights to use its trademark, the Tribunal applied the doctrine confirming Uruguay’s rights to regulate for the benefit of public health. However, one arbitrator submitted a dissenting opinion rejecting its applicability to the investment dispute given the SPR was adopted without sufficient evidence and due consideration by the Uruguayan government.\u0000This paper tries to examine whether and how the margin of appreciation doctrine can be applied by an investment tribunal to evaluate the legality of a newly introduced tobacco control regulation devoid of supporting scientific evidences. This paper argues that such doctrine should be applied cautiously to avoid having an easy excuse for the tribunal to refrain from substantive reviews over investor’s claims, and this doctrine can be adjusted by investment tribunals to establish a balanced standard of review theory, accommodating both the States’ rights to regulate and the private rights of investors.","PeriodicalId":313746,"journal":{"name":"Brill Open Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134079320","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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