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Maritime claims and competition for resources often disregard conservation and sustainability, undermining cooperation on environmental protection. The South China Sea presents a case where the rule of law is failing to protect the marine environment. Overlapping maritime claims and open confrontation for control over areas of the SCS culminated in the PCA South China Sea Arbitration. The requirement to cooperate under UNCLOS is at fundamental odds with the competition for natural resources. Even UNCLOS’s due regard mechanism which ensures a balance of rights and interests among coastal and non-coastal States in their uses of EEZs presumes peaceful co-existence and willingness to cooperate. A binding ASEAN Code of Conduct is a possible avenue to enforce a moratorium over the claims and drive urgent cooperation based on Chapter XII to reverse the fast-deteriorating marine environment. The rule of law is relevant to conservation cooperation in the South China Sea.
Many of our oceans and seas are under threat. Strengthening the environmental rule of law for better protection and sustainable use of the oceans is therefore urgent. This Chapter introduces the concept of the environmental rule of law for oceans and the diverse perspectives and topics that will be addressed throughout the book.
If the goal of the political elite is to amass power, this chapter examines policies that maximize political power. Power maximization does not have specific policies associated with it, but is a process by which the elite encourage the masses to give them more power. Political platforms tend to be vague, offering the message that things are not as good now as they could be, but if you give me more power, I will make things better. People see problems and demand that the government should do something, which gives more power to those who already hold it. The chapter discusses the appeal of populism, which is based on the idea that the system is run for the benefit of the elite, and if the populist politician is given power, things will change to benefit the masses. However, the result is to replace one set of elites with another. Policies that maximize political power are those that create dependence on the political elite. This can occur by expanding the welfare state; by giving regulatory, tax, and other benefits to rent-seekers; and by creating apprehension about potential domestic and foreign threats to people’s well-being.
The rule of law is a contested and multidimensional concept. In this chapter, the aspects highlighted in the UN Secretary General’s 2004 Report are used as a point of departure, focusing on equal enforcement and independent adjudication of legal rules and principles as well as fairness in the application of the law, legal certainty, the avoidance of arbitrariness and procedural and legal transparency. From such rule of law-perspective, investor-state arbitration will be scrutinized, in particular, in regard to independence and impartiality of arbitrators, what is required for parties to have a ‘fair trial’ before an investment tribunal (procedural fairness, the right to be heard, equality of arms), access to justice given the financial implications for both host states and investors, as well as the adequacy of the ‘control’ system, be it ICSID annulment or set-aside procedures before domestic courts, to guarantee predictable, consistent and legitimate outcomes.
This chapter does not provide an argument for or against the legitimacy of investment arbitration, but analyzes the discourse on legitimacy from a conceptual standpoint. Rather than offering an abstract analysis of different theoretical conceptions or concepts of legitimacy, it focuses on the concrete aspects addressed by different participants in the debate under the heading of legitimacy and the differences in underlying assumptions. It explains that because of similarities between investment arbitration and mechanisms of public law and governance, the legitimacy critique of investment arbitration in essence results from the observation of a mismatch between the private-law-inspired rationale of investment arbitration and the demands of principles of constitutional law that are generally used to assess the legitimacy of governance mechanisms. The chapter then turns to how states and policy-makers, arbitral tribunals, and scholarship can and in parts do react to the legitimacy critique of investment arbitration and how they aim at reestablishing legitimacy.
This chapter addresses the question of why teach arbitration, what should be taught, and how it should b e taught. It does so from the perspective of one who believes the Vis International Commercial Arbitration Moot is one of the best pedagogical tools in legal education, and in particular for teaching arbitration. I begin with comments about Professor Eric Bergston’s vision that underlies the Vis Moot. In determining that arbitration should be taught in order to train the coming generations of arbitrators and arbitration counsel, I provide five core reasons for teaching arbitration. I follow with consideration of what should be taught, which must include not only doctrine and skills, but an understanding of the importance of arbitration to the rule of law generally. I close with some brief thoughts on how to teach arbitration and the importance of fitting the method to the teacher.
The usage of delegated legislation as a means of governance deserves significant attention, in view of the enormous impact that it is capable of having on the lives of citizens. While reforms to the process of parliamentary scrutiny are an important means of minimising the inappropriate usage of delegated legislation, this paper explores the possibility of drawing more fruitfully upon judicial review as an additional control mechanism. It undertakes a theoretical analysis of what makes delegated legislation distinct from primary legislation and other types of executive action for the purposes of judicial review, with a view towards identifying the proper normative orientation of judicial review of delegated legislation – upholding the moral requirements of delegation relationships and safeguarding democratic accountability and the rule of law. It then argues that existing grounds of review applied towards delegated legislation go some way towards but are inadequately directed at this normative orientation. Drawing inspiration from Irish and US jurisprudence, the paper critically evaluates several possible means of filling this doctrinal space, and concludes that the non-delegation doctrine and a rule of law-based ground of judicial review directed at exercises of delegated law-making power can supplement the law of judicial review of delegated legislation.
The Sustainable Development Goal’s (SDG) blueprint to global sustainability exemplifies the global governance trend towards the displacement of law by indicators. Indicators purport to produce objective measurement and comparison, a desirable trait for international public authorities that struggle to bolster the legitimacy of environmental and sustainability norms. This paper adopts a pragmatic approach to indicators by taking seriously their limitations, weaknesses, and dangers, but also their potential contributions to international sustainability objectives. We explore a reframing of the relationship between law and indicators in complementary, not adversarial, terms. Several examples of this complementarity are explored, including the potential use of the SDGs for evaluating the instrumental effectiveness of legal regimes, as well as the ways that international sustainability law supplements the SGDs by providing legal ramifications for violations of state-specific obligations. Finally, we argue that law and legal normativity make invaluable contributions to international environmental and sustainability governance, contributions that metrics and other managerial and technocratic forms of governance cannot make.
The chapter focuses on the interaction between European law and national criminal legislation, analysed in the light of the fundamental principles underpinning their relationship, especially the principle of primacy and the duty of loyal cooperation. After distinguishing between direct and indirect effects, paragraph 2 turns to the principle of primacy of EU Law. This cornerstone concept of Union Law affects domestic legislation in so far as it ‘neutralizes’ incompatible domestic criminal law through interpretation and disapplication of inconsistent provisions. This principle develops into a duty of loyalty for Member States (para. 3) which are thus bound to respect and enforce the rules and laws of the EU so as to secure the full and effective implementation of European criminal law in accordance with Art. 4 (3) TEU. Paragraph 4 examines how EU law penetrates the national legal systems of the Member States, focusing on the role of national judges that let European Law enter into the realm of national legal orders. This power represents the most relevant and disruptive manifestation of the ‘internal’ criminal effects of EU law. Selected case law will further demonstrate how EU law applies to and influences domestic criminal legal systems.
With the principle of mutual recognition, the EU facilitates effective and efficient law enforcement cooperation among its Member States. Foreign judicial decisions are treated like domestic decisions, while differences in the national criminal justice systems are maintained. Prolonged examinations are no longer necessary and “safe havens” for criminals are closed. The basis of this cooperation, however, is mutual trust in the rule of law. The author uses, inter alia, the current example of Encrochat to show concrete possibilities for application. There, the French criminal authorities achieved a considerable cross-border investigative success by decrypting crypto-mobile devices of that company, which were frequently used by criminals. Through the recognition and execution of European Investigation Orders in France, those findings could also be used in other Member States and considerable prosecution successes achieved. However, the scope and variety of such measures can lead to problems: Only corresponding measures can be recognised. Violations of the Charter of Fundamental Rights EU must not be enforced. Inhumane treatment of detainees may prevent the enforcement of a European Arrest Warrant in individual cases. The loss of trust in the rule of law in some Member States, the EUs reaction to this danger and the control function of CJEU decisions are currently determining legal policy.
[3.1] The constitutional framework of legislation, federal and state, is relevant to statutory interpretation in various ways. At its most general level, the framework identifies the source of interpretative law for legislation. Further, three fundamental constitutional concepts – the separation of powers, the rule of law and parliamentary supremacy – both influence and provide a foundation for statutory interpretation law. Although these concepts are complex, and the subject of considerable discourse in constitutional law, it is important to understand their basic characteristics as a backdrop to the more detailed examination of statutory interpretation law that follows in this book.
Our article presents an empirical investigation of the relationship between the export performance of Italian provinces and the quality of their local institutions, specifically the rule of law, over the period 2004–2016. According to the results obtained by different econometric approaches (OLS, FE, SYS-GMM), in general a secure and well-defined legal framework – by reducing transaction costs and uncertainty, facilitating capital accumulation and an increase in the firms' scale of production – is associated with better export performance. Interestingly, when the analysis is replicated at the level of the Italian macro-areas (North, Centre and South), the results indicate that the rule of law has a statistically significant and positive association with export performance only in northern provinces, thus suggesting that the effectiveness of this institutional dimension might depend on the level of development of the socioeconomic and institutional features at the local level, i.e. only when a set of suitable economic incentive mechanisms are already in place.
The general principle of effective judicial protection grants the right to obtain a remedy in the fields covered by EU law and is an essential component of the EU enforcement toolkit. Recent jurisprudential developments have complexified the role of this principle, by transforming it into a vehicle for the enforcement of the rule of law in the EU. As a result, the principle of effective judicial protection appears as the factotum of the EU legal system: it acts as a fundamental right and is an expression of the EU rule of law; furthermore, it is a legal basis to influence national fundamental rights and to impose procedural obligations on the EU institutions. This overview Article offers a novel account of the evolution of this principle in the EU legal landscape. First, it reflects on the trajectory of this evolving principle in the EU case law and in the academic discourse. Second, it identifies conceptual issues surrounding the role of effective judicial protection in the EU legal order in the light of the latest jurisprudential developments.
This chapter explores the value of and bases for police legitimacy. In doing so, it distinguishes between descriptive (or perceived, popular) legitimacy, and normative legitimacy, ultimately arguing that the latter is the natural ground of democratic policing and the more critical of the two, given policing’s commitment to practical, substantive justice. One of the principal hazards of descriptive legitimacy is its ability to yield a popular perception of policing’s legitimate authority that can sanction populist sentiments, ones that do not necessarily protect minority rights or honor a commitment to pluralism. Legitimacy is critical in the police pursuit of cooperation, especially in times of epistemic uncertainty, and the argument here is that the careful pursuit of substantive justice that conforms to the requirements of normative legitimacy will yield descriptive legitimacy across a substantial part of the community, and especially among its more marginalized or vulnerable members.
This chapter offers a pluralist reading of transitional justice built around three meanings of pluralism. The first is value pluralism – the idea, dear to Isaiah Berlin, that values are irreducibly manifold, potential conflicting and frequently incommensurable in such a way that they cannot be ranked or weighed on any single scale. The second meaning of pluralism is cultural pluralism. It refers to the fact that there are many different cultures, many different collective ways of life, none of which can claim superiority. While insisting on the possibility of a cross-cultural conversation around core values, the proposed pluralist approach rejects the normal model’s tendency to reduce transitional justice to one set of (Western) cultural forms. The third form of pluralism briefly considered is legal pluralism, meaning the coexistence of competing legal orders. Discussing Rwanda’s experience with the so-called gacaca courts, the chapter suggests a pluralist understanding of the rule of law flexible enough to accommodate cultural variation while remaining committed to what I take to be its universal core. The chapter ends by proposing a pluralist method for thinking about transitional justice, which is linked to basic commitments referred to as sense of reality, anti-monism, situated thinking, decolonised cosmopolitanism and fallibilistic mentality. The chapter argues that these commitments can help mitigate a number of problematic trends in contemporary transitional justice discourse and practice.
Chapter 8 summarises the main findings from the preceding chapters, and discusses the best way to deal with the China challenge. Contrary to those who prefer unilateral and plurilateral approaches, we argue that the potential of multilateralism has yet been fully explored. As we have documented, it was the desire to normalise its trade relations within the multilateral framework that prompted China’s initial decision to return to the multilateral trading system. While China did pursue unprecedented market-oriented reform, the potential of the multilateral rules in taming China’s state capitalism has not been fully unleashed since China’s accession. Of course, recognising the potential of multilateralism does not mean that multilateralism is perfect. Instead, we believe that multilateralism is the most promising compared with unilateral measures and bilateral and plurilateral negotiations outlined above. In addition to making fuller use of the existing rules under the WTO, this book has also put forward some approaches for the negotiation of new rules at the multilateral level where such rules are needed and suggested ways to engage China in a more constructive manner.
There is a memorable line by ancient Greek poet Archilochus: 'The fox knows many things, but the hedgehog knows one big thing.' Drawing on this metaphor made popular by Isaiah Berlin, this book sets out to 'think like a fox' about transitional justice in an intellectual environment largely dominated by hedgehogs. Critical of the unitary 'hedgehog-like' vision underlying mainstream discourse, this book proposes a pluralist reading of the field. It asks: What would it mean for transitional justice to constructively deal with conflicts of values and interests in societies grappling with a violent past? And what would it imply to make meaningful room for diversity, to see 'the many' rather than just 'the one'?
This chapter makes the case for judicial morality as a safeguard against result-selective reasoning, a decision-making flaw especially pernicious in human rights adjudication. Human rights claims are more value-laden than other judicial work. They can tempt judges to depart from disciplined judging according to the rule of law. One purpose of the rule of law is to constrain discretionary judicial power. Research into the psychology of judging supports the need for constraints. But the legal system affords opportunities – margins of judicial manoeuvre – to engage in result-selective reasoning, from the indeterminacy of human rights texts, the replacement of rules with standards, and the adoption of proportionality analysis. The rule of law’s constraints are not self-enforcing and cannot safeguard against the failure of judges to abide by them. What is required is commitment to judicial morality comprising the modes of judicial responsibility: do no harm, and then, do the right thing, for the right reason, in the right way, at the right time, and in the right words. When judges neglect these moral imperatives, they undermine the quest for consistent adjudication that underpins justice.
This article explores the role which Member State-led infringement proceedings can play in overcoming the EU’s rule of law crisis, and hypothesizes that it can prove helpful in breaking the current impasse. It begins by understanding why the EU’s “traditional” rule of law enforcement mechanisms—such as Article 7 of the Treaty on European Union (TEU) and the recent rule of law conditionality regulation—have failed (Section 2), before exploring how infringement proceedings operate, what their shortcomings are, and why Scheppele’s proposed “systemic infringement proceedings” are important (Section 3). It then seeks to apply said findings to the rule of law crisis, using two recent developments as an example: The oral proceedings of Commission v. Poland (Régime disciplinaire des juges) and a recent vote by the Dutch Parliament compelling its government to take Poland before the Court of Justice of the European Union (CJEU) (Section 4). Finally, it explores the broader constitutional implications of relying on Article 259 Treaty on the Functioning of the European Union (TFEU) to overcome the rule of law crisis: It discusses Kochenov’s notion of “biting intergovernmentalism”, what Article 259 illustrates about the European Union’s (EU) hybrid constitution, and how intergovernmental legal instruments can facilitate further European integration (Section 5). It concludes by restating and summing up article’s hypothesis.
The “established by law” criterion recently emerged as an independent element of Article 6 of the European Convention on Human Rights (ECHR), through the European Court of Human Rights’ (ECtHR’s) judgment in Ástráðsson v. Iceland. The criterion imposes the obligation on states to appoint judges in accordance with the respective legal framework. Its emergence occurred at a precarious moment in European intergovernmental politics, with illiberal governments in several European states exhibiting tactics aimed at softening obstacles to their governing powers, upheld by their respective judiciaries. Through a dialog between the European Free Trade Association (EFTA) Court, the Court of Justice of the European Union (CJEU), and the ECtHR, the “established by law” criterion has now emerged in the European constitutional repository for thwarting such tactics. In this article, the story of this development is told through highlights from the case law of the European supranational courts and through the Icelandic backstory of the Ástráðsson case. This story reveals important nuances in how the case law needs to be understood with regards to the constitutional forces at stake. The conceptual approach of the ECtHR in Ástráðsson is also analyzed in context with Lon Fuller’s rule of law principle of congruence, which provides a framework for evaluating the merits of the Court’s tactic.