Global Regulatory Standards in Environmental and Health Disputes Regulatory Coherence Due Regard and Due Diligence Caroline E Foster Full Chapter

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Regulatory Coherence, Due Regard,
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Global Regulatory Standards
in Environmental and Health Disputes
Global Regulatory
Standards
in Environmental and
Health Disputes
Regulatory Coherence, Due Regard, and
Due Diligence
C A R O L I N E E . F O ST E R
1
3
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For Rob, Catherine and Zoe
Foreword
I am delighted to have been invited to write a foreword to this book by my friend

and colleague, Dr Caroline Foster. Addressing the international legal principles
which have arisen in transnational regulatory disputes, and the particular chal-
lenges facing international adjudicators in their interpretation and application,
this is a timely and important contribution to a topic of enduring significance.
The idea that transnational regulatory disputes might be subject to binding third
party dispute resolution at the international level has become so familiar to inter-
national lawyers over the last three decades, that it is easy to lose sight of the unique-
ness of the historical circumstances in which it has come about, and the novelty of
the associated challenges. On one side is the much remarked upon judicialization
of international relations in the post-Cold War era, centrally including the emer-
gence of international adjudication as a primary tool of economic diplomacy, as
well as the emergence of a cadre of professional jurists –practitioners, scholars,
and others –engaged in the practical task of building an organised body of rules
and practices in response. On the other, there are the conditions which give rise to
regulatory disputes themselves: the proliferation of diverse regulatory demands;
the increased commercial salience of regulatory differences in conditions of inten-
sified globalisation; and an increased awareness of the significance of regulation as
a terrain of competition in global economic life. Together, these trends set the stage
for the emergence, through international adjudication, of a new set of practices in
the application of international law to domestic regulatory action.
One of the immensely valuable functions that this book performs is to help us
to look back over the last thirty years of attempts to resolve the difficulties asso-
ciated with international law’s increasing occupation of the domestic regulatory
space, and to assess in the round what has emerged as a result. It turns out not to
have been an easy nut to crack, not by a long shot. The book focusses primarily
on the role played by international courts and tribunals, to whom the task of au-
thoritatively interpreting and applying international law governing domestic regu-
lation has primarily fallen. This period is probably best understood as a period of
adjudicatory experimentation and innovation –though, interestingly and possibly
importantly, one in which international adjudicators more often approached their
quasi-entrepreneurial role with some degree of awkwardness and uncertainty, ra-
ther than obvious hubris or heroism. There have been some triumphs, some mis-
takes, some jurisprudential dead ends, and some important paths not taken. But
the result has a been a new body of international jurisprudence not quite like any
viii Foreword
other. Critical reflection on this enterprise, as this book provides, seems particu-
larly crucial now.
Given the vastness of the jurisprudence, Dr Foster focusses her enquiries on a
particular slice of it: disputes concerning States’ actions to protect the environment
and public health. From this vantage point, she discerns three broad principles
which have structured adjudicators’ understanding of the applicable international
legal rules. She calls these regulatory coherence, due regard for the rights of others,
and due diligence in the prevention of harm. ‘Regulatory coherence’ in this context
refers to a range of tests, at times apparent on the face of the law, which focus on the
relationship of the ends of a regulatory measure to the means used to achieve them.
These include the design, proportionality, necessity and rationality tests which are
familiar to international trade and investment lawyers in particular, and which
have attracted so much commentary in the field. The principle of ‘due regard’ seeks
to ensure a degree of outward-lookingness on the part of regulatory actions, and
an awareness of actual and potential impacts of regulatory actions on stakeholders
outside the jurisdiction. ‘Due diligence’ primarily refers to what is required of states
to prevent transboundary harm, a principle which has come to prominence pri-
marily in international environmental law, but has much more general application.
Foster’s second principle –‘due regard’ –is very significant, and indeed Foster
herself notes its advantages as compared to potentially more intrusive regulatory
coherence tests. As this book shows, while the content and boundaries of the ‘due
regard’ principle still remain under-defined, some of its key elements can already
be clearly stated. It includes, for example: an emerging obligation on regulators to
take into account the external impacts of their regulatory actions; an encourage-
ment towards the adjustment of regulatory measures according to the different
conditions pertaining in different countries; procedural requirements of consult-
ation and notification in relation to external stakeholders; perhaps also a require-
ment of calibration to the nature and extent of the underlying risks addressed by
regulatory action. In the coming years, the juridical development of these and
other standards will be particularly pressing, given the increasing role that regu-
latory co-ordination and co-operation at the bilateral and subnational level, in-
cluding recognition arrangements, play in structuring global economic life.
None of these three principles emerged in a vacuum, of course. As the material
covered in this book clearly illustrates, some were influenced by particular tradi-
tions of domestic public law, while others are now found in new rules and juris-
prudence developed through projects of regional economic integration. They also
clearly bear the imprint of the emergence from the 1980s onwards of a new body of
regulatory policy expertise, which was generated as a field of expertise in its own
right in the context of late 20th century transformations of the regulatory state.
Nevertheless, borrowings have been creative, and one of the strengths of Foster’s
account of the development of these principles is that it shows very clearly the par-
ticular meanings they took on, and the particular functions they performed, as
Foreword ix
they were picked up, and projected into different spaces of international regulation.
They were, Foster tells us, in significant part a response to the special pressures
faced by international adjudicators and the institutions in which they work –in-
stitutions which sometimes suffer from a real legitimacy deficit, even as they have
been entrusted with the difficult tasks of maintaining stable economic relations,
and ensuring non-regression in projects of economic integration.
This question of legitimacy is, rightly, a key focus of Foster’s critical insight
throughout this book. Her analysis shows that the ‘global regulatory standards’
that she identifies are fundamentally pluralist rather than constitutionalist in
orientation –they are designed as interface norms between different regulatory
jurisdictions, taking the form of ‘meta-regulatory’ principles. As a result, the legit-
imacy demands they face are different from those which attach to the substantive
legal provisions themselves. Nevertheless, it is clear that a serious legitimacy def-
icit remains. Indeed, Foster claims, with good reason, that ‘the emerging global
regulatory standards appear to do too little to enhance traditional substantive jus-
tifications for international law’s claim to legitimate authority’ and that they ‘con-
tribute only partially to an ideal balancing of international interests’. This sanguine
assessment is coupled with a realistic appraisal of the conditions under which ju-
dicial institutions must operate, constrained as they are not only by their narrow
institutional mandates, but also by the practicalities of dispute resolution including
the importance of the disputants’ pleadings. ‘More is not to be expected’, Foster
notes, ‘from international adjudicatory bodies’ which ‘remain formally and so-
cially constrained.’ Foster’s book reminds us that, because of this, adjudicatory
bodies’ identification and application of regulatory standards that might better re-
inforce international law’s legitimacy claims from a substantive perspective would
likely undermine these same claims from a procedural point of view.
The picture which emerges from this book, then, is perhaps that there is some-
thing of a mismatch between the task at hand and the set of institutions we have
to carry it out. At the same time, it may be the set of institutions we have available
to us for at least some time. It is true, of course, that WTO dispute settlement has
been seriously disrupted by the Appellate Body’s absence, and ISDS is also fam-
ously under fire from certain quarters. But is also true that international adjudica-
tion on trade and investment matters –whether under next generational bilateral
or regional agreements, or the multilateral panel process –is very far from disap-
pearing, and the incentives for political actors to delegate the resolution of such
disputes to adjudicatory bodies remain strong. Furthermore, the structural con-
ditions for regulatory disputes remain as powerful as they ever were. Indeed, to
some extent, they may be stronger, if, as some argue, the global financial crisis and
the pandemic have undermined the legitimacy and acceptability of convergence
around international standards as a potential solution to global regulatory conflict.
All of this makes the need for a book such as this more urgent, and its appear-
ance even more timely. The three regulatory principles that Foster identifies are
x Foreword
potentially hugely important, and her work in identifying them aids us immeas-
urably in determining and developing their appropriate contours. Foster must be
right to say that, in this process of development, what is crucial is the transparent
articulation of reasons by international adjudicators, combined with ‘ongoing re-
flective interactions between judges, practitioners and the broader scholarly com-
munity’. It is precisely this sort of interaction which is facilitated by this remarkable
book, and I am delighted to commend it as a significant contribution to the field.
Professor Andrew Lang

Chair in International Law and Global Governance
Edinburgh Law School
University of Edinburgh
Acknowledgements
There are many people to thank for the part they have played in the production of
this book. The Royal Society of New Zealand’s Marsden Council funded the project
from 2014 to 2020, with the University of Auckland’s Faculty of Law as the project’s
institutional home. Colleagues at the Faculty took a valued interest in the work. For
their engagement and comments at different stages I am grateful especially to An
Hertogen, Janet McLean, Arie Rosen, Nicole Roughan, Paul Rishworth and Hanna
Wilberg, as well as all those who participated in and offered their thoughts at the
Faculty workshops that helped clarify the project’s focus, scope and arguments.
Sandra Shaw was eternally patient in the help she provided in the early days and
I am grateful to the Davis Law Library staff also for their ever-cheerful assistance.
A number of the Faculty’s current and former students provided valuable research
assistance over the multi-year period during which the project ran. Thank you par-
ticularly to Tim Conder, Grace Abbott, Emily Wright, Ana Lenard, Eleonora Paci,
Daniel Brinkman, Rachel Buckman and Naushyn Janah, and especially to Hannah
Reid for her excellent work on the manuscript.
I am grateful also to the wider group of colleagues who supported and helped
with the research on which the book is based in different ways, including by
welcoming me to their own universities. The Lauterpacht Research Centre for
International Law at the University of Cambridge offered the same warm wel-
come as ever during research visits in the initial and mid stages of the project.
I was pleased also to take up an invitation to speak at a symposium at the Max
Planck Institute for International, European and Regulatory Procedural Law in
Luxembourg in the course of the project, and I thank Director Hélène Ruiz Fabri
for her welcome on that visit. Gabrielle Marceau was a wonderful host in Geneva.
Andrew Lang at the University of Edinburgh provided important practical sup-
port for the work, meeting with me in the course of its development, visiting New
Zealand, and commenting on the first draft of the book. He has also graciously
agreed to write the book’s foreword.
In the final year of the research, the Pluricourts Centre at the University of Oslo
and the Law Faculty at the University of Canterbury hosted invited presentations
on the work and I thank Christina Voigt and Karen Scott for their company and
their hospitality. Together with a number of unnamed individuals, I also thank for
their help and support at different times over the multi-year period of the project’s
research and development Sir Kenneth Keith, Judge Joan Donoghue, Judge James
Crawford, Sir Christopher Greenwood, Sir Franklin Berman, Vaughan Lowe,
Pierre-Marie Dupuy, Judge Albert Hoffman, Fred Soons, Georges Abi-Saab, Peter
xii Acknowledgements
van den Bossche, Thomas Cottier, Georgio Sacerdoti, Claus-Dieter Ehlermann,

James Bacchus, James Flett, Graham Cook, Lauro Locks, Gretchen Stanton,
Mireille Cossy, Christiane Wolff, William Ehlers, Jan Bohannes, Frieder Roessler,
Patricia Holmes, Christian Häberli, Nicolas Lamp, Anna Kirk, Robert Volterra,
Chris Thomas, the late Johnny Veeder, Jorge Viñuales, Andrew Newcombe,
Stephan Schill, Ingo Venzke, and Joshua Paine who commented on a full second
draft of the book.
At Oxford University Press Merel Alstein and Jack McNichol have been stal-
wart in their support and guidance and always a pleasure to communicate with,
in person or by email. Selected portions of a parallel publication appear in the
text of the present work by permission of the respective publishers: Caroline E
Foster, ‘The Emergence of Global Regulatory Standards in International Courts
and Tribunals: Whaling, Tobacco and Renewable Energy’ in Sam Bookman,
Anna Crowe, Max Harris, Edward Willis and Hanna Wilberg (eds), Pragmatism,
Principle, and Power in Common Law Constitutional Systems: Essays in Honour of
Bruce Harris (Intersentia 2021).
Finally, my family has been tolerant and kind in the time they have allowed me
to develop and complete the work needed to produce this book and I thank them
profoundly.
Table of Contents
Table of Cases xix

List of Abbreviations xxix
PA RT I I N T R O D U C T IO N
1. Introduction 3
2. Introducing Regulatory Standards 19
A. Regulatory Standards in International Adjudicatory Practice 22
1. Introducing key standards 22
a) Regulatory coherence 24
i) Capability 24
ii) Necessity 25
iii) Reasonableness 25
iv) Rational relationships 26
v) Proportionality 26
b) Due regard 27
c) Due diligence 28
2. The influence of the abuse of rights doctrine and global
administrative law 30
B. The Origins and Nature of Regulatory Standards 33
C. Constitution Building or Ordering Plurality? 36
D. International Law’s Legitimate Authority 41
1. Substantive and procedural justification of authority 44
2. The invisibility of governance reasons 46
E. Conclusion 47
PA RT I I T H E I N T E R NAT IO NA L C OU RT O F J U S T IC E ,
L AW O F T H E SE A D I SP U T E SE T T L E M E N T A N D T H E
P E R M A N E N T C O U RT O F A R B I T R AT IO N
3. Regulatory Coherence 51
A. Introduction 51
B. The International Court of Justice 52
C. Law of the Sea Dispute Settlement 53
D. The Permanent Court of Arbitration 55
E. Regulatory Standards Identified in the Disputes 55
1. An overview 55
2. Regulatory coherence 60
xiv Table of Contents
a) Capability testing 60
i) Fisheries Jurisdiction (Spain v Canada) 60
ii) The Arctic Sunrise Arbitration (Kingdom of the
Netherlands v Russian Federation) 63
b) Self-evident necessity 69
i) Right of Passage over Indian Territory (Portugal v India) 69
ii) Indus Waters Kishenganga Arbitration (Islamic Republic of
Pakistan v Republic of India) 70
c) Reasonableness in relation to objectives 72
i) Dispute Concerning Filleting within the Gulf of St Lawrence
(‘La Bretagne’) (Canada v France) 72
ii) Whaling in the Antarctic (Australia v Japan: New Zealand
intervening) 74
d) More complex formulae 78
i) North Atlantic Coast Fisheries Case (Great Britain v
the United States) 80
ii) The Iron Rhine (‘Ijzeren Rijn’) Railway (Kingdom of
Belgium v Kingdom of the Netherlands) 81
iii) Dispute regarding Navigational and Related Rights
(Costa Rica v Nicaragua) 82
iv) The Arctic Sunrise Arbitration (Kingdom of the
Netherlands v Russian Federation) 85
F. Conclusion 85
4. Due Regard and Due Diligence 89
A. Introduction 89
B. Due Regard and Due Diligence 89
1. Due regard 89
a) Chagos Marine Protected Area Arbitration
(Mauritius v United Kingdom) 90
b) Whaling in the Antarctic (Australia v Japan:
New Zealand intervening) 96
2. Due diligence 99
a) Gabčikovo-Nagymaros Project (Hungary v Slovakia) 104
b) Case concerning Pulp Mills (Argentina v Uruguay) 105
c) Responsibilities and Obligations of States Sponsoring Persons and
Entities with Respect to Activities in the Area (Advisory Opinion) 107
d) Request for an Advisory Opinion Submitted by the Sub-Regional
Fisheries Commission (SRFC) (Advisory Opinion) 113
e) South China Sea Arbitration (Republic of the Philippines v People’s
Republic of China) 121
f) The Environment and Human Rights (Advisory Opinion) 126
g) Conclusion 128
C. Reflections on Regulatory Standards in the International
Court of Justice, Law of the Sea Dispute Settlement and the
Permanent Court of Arbitration 129
Table of Contents xv
PA RT I I I WO R L D T R A D E O R G A N I Z AT IO N
D I SP U T E SE T T L E M E N T
5. Necessity Testing 135
A. Introduction 135
B. World Trade Organization Dispute Settlement 137
C. An Introduction to Relevant WTO Disciplines 142
D. Regulatory Standards in WTO Disputes 144
E. Introduction to Necessity Testing 147
1. Necessity under Article XX of the GATT and Article XIV
of the GATS 149
a) Article XX(d)—‘necessary’ to secure compliance 149
b) Article XX(a)—‘necessary’ to protect public morals 153
c) Article XX(b)—‘necessary’ to protect human, animal or plant
life or health 155
d) Article XX(j)—‘essential’ to the acquisition or distribution of
products in general or local short supply 160
2. Necessity under Article 2.2 of the TBT Agreement 162
a) United States—Measures Affecting the Production and Sale
of Clove Cigarettes 162
b) Australia—Certain Measures Concerning Trademarks,
Geographical Indications and Other Plain Packaging
Requirements Applicable to Tobacco Products 166
3. Necessity under Article 5.6 of the SPS Agreement 172
F. Conclusion 172
6. Rational Relationships 175
A. Introduction to Rational Relationship Requirements 175
The general exceptions chapeau
1. 179
Article 2.1 of the TBT Agreement
2. 183
Articles 2.3 and 5.5 of the SPS Agreement
3. 184
Divergent policy objectives
4. 186
a) Brazil—Measures Affecting Imports of Retreaded Tyres 187
b) European Communities—Measures Prohibiting the Importation
and Marketing of Seal Products 189
c) United States—Measures Concerning the Importation, Marketing
and Sale of Tuna and Tuna Products (US—Tuna II) 191
‘Stems exclusively’ from a legitimate regulatory distinction
5. 193
a) United States—Measures Affecting the Production and
Sale of Clove Cigarettes 193
b) United States—Certain Country of Origin Labelling (COOL)
Requirements 197
Even-handedness
6. 201
B. Conclusion 206
C. Reflections on Regulatory Standards in WTO Dispute Settlement 208
xvi Table of Contents
PA RT I V I N V E S T M E N T T R E AT Y A R B I T R AT IO N
7. Regulatory Coherence Requirements in Investment Treaty
Arbitration 215
A. Introduction 215
B. An Introduction to Investment Disciplines 216
C. Regulatory Coherence Requirements in Investment Treaty
Arbitration 221
1. Fair and equitable treatment: arbitrary or unreasonable
conduct: reasonable relationships to rational policies 221
a) Glamis Gold Ltd v United States 224
b) Mesa Power Group LLC v Canada 227
2. National treatment: a reasonable nexus to rational government policies 231
a) Apotex Holdings Inc and Apotex Inc v United States 232
b) Parkerings-Compagniet AS v Republic of Lithuania 233
3. Expropriation: ‘for a public purpose’ 235
a) Vestey Group Ltd v Venezuela 237
b) Philip Morris Brands Sàrl and ors v Uruguay 239
D. Conclusion 243
8. Proportionality in Investment Treaty Arbitration 247
A. Introduction 247
B. Proportionality in the Practice of Investment Treaty Arbitration 253
1. Expropriation 253
2. Fair and equitable treatment 255
C. The Competing Interests in Investment Treaty Disputes 258
D. Refocusing Proportionality Analysis 263
1. Proportionality in relation to regulatory purpose 263
2. Looking beyond individual burdens 265
3. Manifest disproportionality 267
a) European Union law 268
b) World Trade Organization law 268
E. Conclusion 272
F. Reflections on Regulatory Standards in Investment
Treaty Arbitration 274
PA RT V C R I T IC A L Q U E S T IO N S
9. Regulatory Standards, Legitimate Authority and the
Adjudicatory Role 279
A. Introduction 279
B. Regulatory Standards and International Law’s Claim to
Legitimate Authority 281
1. Procedural justification: accommodation of domestic decision-making 282
2. Substantive justification: the challenge of balancing global interests 283
3. Attaining relative authority? 284
Table of Contents xvii
C. The Role of International Courts and Tribunals 285

The strengths of international adjudicatory process
1. 286
The constraints on international adjudicatory process
2. 288
a) Social constraints 288
b) Formal constraints 290
The abuse of rights doctrine
3. 293
The absence of public deliberation
4. 299
D. Conclusion 301
10. Systemic Challenges and Opportunities 305
A. Introduction 305
B. Systemic Challenges Associated with the Advent of Regulatory
Standards 307
Sovereign freedom as conferred power
1. 307
The fragmentation of international law
2. 310
Developments in the status of private entities in international law
3. 320
C. Opportunities for Reconsideration 323
Employing due regard standards in place of proportionality tests
1. 323
a) Proportionality 323
b) Due regard 327
International adjudication as judicial review?
2. 337
a) Judicial review and standards of review 337
b) Deference and margin of appreciation 342
D. Conclusion 346
11. Conclusion 347
Bibliography 351
Index 373
Table of Cases
EUROPEAN COURT OF HUMAN RIGHTS

Handyside v United Kingdom 1976 ECHR 5 ��151n.65, 344n.199
James and ors v UK 1986 ECHR 2��252n.26, 265–66
Lithgow and ors v UK 1986 ECHR 8�� 265n.94
The Sunday Times v UK 1979 ECHR 1�� 222n.25
INTER-A MERICAN COURT OF HUMAN RIGHTS

The Environment and Human Rights (State Obligations in Relation to the Environment
in the Context of the Protection and Guarantee of the Rights to Life and Personal
Integrity: Interpretation and Scope of Articles 4(1) and 5(1) in relation to Articles
1(1) and 2 of the American Convention on Human Rights), Advisory Opinion
OC-23/17 (15 November 2017), Inter-American Court of Human Rights Series
A, No 23�� 59–60, 126–28, 298n.70
INTERNATIONAL COURT OF JUSTICE

Aegean Sea Continental Shelf (Greece v Turkey) Judgment of 19 December 1978 [1978]
ICJ Rep 3��62n.54
Anglo-Iranian Oil Co (United Kingdom v Iran) Judgment of 22 July 1952 (Jurisdiction)
[1952] ICJ Rep 93��61n.53
Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Judgment of
5 February 1970 [1970] ICJ Rep 3�� 73
Case Concerning Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy)
Judgment of 20 July 1989 [1989] ICJ Rep 15��221–22, 296n.59
Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment of 20 April 2010
[2010] ICJ Rep 14�� 28–30, 59–60, 102–3, 105–7,
108–9, 118–19, 121, 124–25, 129
Case Concerning the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Judgment of
26 February 2007 (Merits) [2007] ICJ Rep 43�� 101
Gabčikovo-Nagymaros Project (Hungary v Slovakia) Judgment of 25 September 1997
[1997] ICJ Rep 7��28, 77–78, 102, 104–5, 314
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v
Nicaragua) and Construction of a Road in Costa Rica along the San Juan
River (Nicaragua v Costa Rica) Judgment of 16 December 2015 [2015]
ICJ Rep 665�� 59–60, 102–3
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France)
Judgment of 4 June 2008 [2008] ICJ Rep 177 �� 77–78n.163, 296–97
Dispute Over the Status and Use of the Waters of the Silala (Chile v Bolivia)
(Application Instituting Proceedings, 6 June 2016)��103–4
Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment
of 13 July 2009 [2009] ICJ Rep 213�� 10, 25–26, 27, 58, 76–77,
77–78n.163, 78–80, 82–85, 86–87, 261,
264, 288–89, 290–91, 297–98
xx Table of Cases
Fisheries Jurisdiction (Spain v Canada) Judgment of 4 December 1998 [1998]

ICJ Rep 432��24, 56, 60–63, 86
Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland
v Iceland) Judgment of 25 July 1974 (Merits) [1974] ICJ Rep 3�� 89–90, 329–30
Fisheries Jurisdiction (Federal Republic of Germany v Iceland) Judgment of 25 July
1974 (Merits) [1974] ICJ Rep 175�� 89–90, 329–30
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970)
Advisory Opinion of 21 June 1971 [1971] ICJ Rep 16�� 314n.35
Right of Passage over Indian Territory (Portugal v India) Judgment of 12 April 1960
(Merits) [1960] ICJ Rep 6 ��56, 69–70
South West Africa Cases (Liberia v South Africa; Ethiopia v South Africa)
Judgment of 21 December 1962 (Preliminary Objections) [1962]
ICJ Rep 319��292n.33, 296n.53
Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of
8 July 1996 [1996] ICJ Rep 226�� 100–1, 102–3, 292–93
Whaling in the Antarctic (Australia v Japan: New Zealand intervening) Judgment of 31
March 2014 [2014] ICJ Rep 226��10, 22–23,
25–26, 56–57, 58, 62, 72, 74–79, 86–87, 90, 96–99,
130, 131, 243–44, 246, 288–89, 290–91, 294, 295–96,
309–10, 335, 338–39, 342, 343–45
INTER-S TATE ARBITRATION

Arbitration Between the Republic of Croatia and the Republic of Slovenia (Final Award)
(29 June 2007) PCA Case No 2012–04�� 327n.97
Arbitration regarding the Iron Rhine (‘Ijzeren Rijn’) Railway between the Kingdom of
Belgium and the Kingdom of the Netherlands (Award) (24 May 2005) PCA Case
No 2003-02 140 ILR 1 �� 25–26, 55, 58, 78–79, 81–82, 86–87, 297–98
Dispute Concerning Filleting within the Gulf of St Lawrence (‘La Bretagne’) (Canada v
France) (Award) (17 July 1986) 82 ILR 590�� 57, 72–74, 98, 314n.33, 321–22
F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States (1926)
4 RIAA 60; 3 ILR 213��222, 225
Harza Engineering v Republic of Iran (Award) 30 December 1982,
1 Iran-US CTR 499�� 237n.125
Indus Waters Kishenganga Arbitration (Islamic Republic Pakistan v Republic of India)
(Partial Award) (18 February 2013) PCA Case No 2011-01 154 ILR 1 �� 55, 56,
69–72, 82, 85–86
Indus Waters Kishenganga Arbitration (Islamic Republic of Pakistan v Republic of
India) (Final Award) (20 December 2013) PCA Case No 2011-01 157 ILR 362�� 55,
56, 69–72, 82, 85–86
Lake Lanoux Arbitration (France v Spain) (16 November 1957)
24 ILR 101��90, 96–97, 114
North Atlantic Coast Fisheries Case (Great Britain v United States)
(7 September 1910) (1910) Scott Hague Court Rep 141��25–26, 55, 58, 73,
78–79, 80–81, 86–87, 288–89, 294, 298–99
INVESTMENT ARBITRATION
AES Summit Generation Limited and AES-Tisza Erömü Kft v Hungary ICSID
Case No ARB/07/22, Award, 23 September 2010 (Claus von Wobeser, J William
Rowley and Brigitte Stern) �� 217n.7, 223n.30, 223n.33, 223n.35
Table of Cases xxi
Al Tamimi v Oman ICSID Case No ARB/11/33, Award, 3 November 2015 (David

A R Williams, Charles N Brower and J Christopher Thomas) ��255–56
Álvarez y Marín Corporación SA and ors v Panama ICSID Case No ARB/15/14,
Award, 12 September 2018 (Juan Fernández-Armesto, Henri Alvarez and
Horacio A. Grigera Naón)�� 262n.78
Apotex Holdings Inc and Apotex Inc v United States ICSID Case No ARB(AF)/12/1,
Award, 25 August 2014 (V V Veeder, J William Rowley and John R Crook) ��232–33
Azurix Corporation v Argentina ICSID Case No ARB/01/12, Award, 14 July 2006
(Andrés Rigo Sureda, Mark Lalonde and Daniel Hugo Martins)��253–54, 265n.92,
267n.103
BayWa r.e. Renewable Energy GmbH and BayWa re Asset Holding GmbH v Spain
ICSID Case No ARB/15/16502, Decision on Jurisdiction: Liability and
Directions on Quantum, 2 December 2019 (James Crawford, Horacio Grigera
Naón and Loretta Malintoppi)�� 257n.54, 264n.87, 267–68
Bear Creek Mining Corporation v Peru ICSID Case No ARB/14/21, Award,
30 November 2017 (Karl-Heinz Böckstiegel, Michael Pryles and
Philippe Sands)��220n.15, 315n.41
Blusun SA and ors v Italy ICSID Case No ARB/14/3, Award, 27 December 2016
(James Crawford, Stanimir A Alexandrov and Pierre-Marie Dupuy)�� 256n.49,
264n.87, 267–68
CC/Devas (Mauritius) Limited and ors v India PCA Case No 2013-09, Award on
Jurisdiction and Merits, 25 July 2016 (Marc Lalonde, David R Haigh and Anil
Dev Singh)�� 332n.128
Charanne BV and Construction Investments SARL v Spain SCC Case No 062/2012,
Final Award, 21 January 2016 (Alexis Mourre, Guido Santiago Tawil and Claus
von Wobeser)��257n.55, 257n.57
Chevron Corporation and Texaco Petroleum Company v Ecuador PCA Case No 2009-
23, Second Partial Award on Track II, 30 August 2018 (V V Veeder, Vaughan
Lowe and Horacio Grigera Naón) �� 316n.49
Chemtura Corporation v Canada PCA Case No 2008-01, Final Award, 2 August 2010
(Gabrielle Kaufmann-Kohler, Charles N Brower and James R Crawford)�� 343n.194
Continental Casualty Company v Argentina ICSID Case No ARB/03/9, Award,
5 September 2008 (Giorgio Sacerdoti, V V Veeder and
Michell Nader)��253–54, 263–64
Cortec Mining Kenya Limited and ors v Kenya ICSID Case No ARB/15/29,
Award, 22 October 2018 (Ian Binnie, Kanaga Dharmananda and
Brigitte Stern)�� 262, 316n.49
Crystallex International Corporation v Venezuela ICSID Case No ARB(AF)/11/2,
Award, 4 April 2016 (Laurent Lévy, John Y Gotanda and Laurence Boisson de
Chazournes)�� 343n.196, 345n.209
David R Aven et al v Costa Rica ICSID Case No UNCT/15/3, Final Award, 18
September 2018 IIC 1472 (2018), 18 September 2018 (Eduardo Siqueiros T,
Pedro Nikken and C Mark Baker) �� 316n.49
EDF (Services) Ltd v Romania ICSID Case No ARB/05/13, Award,
8 October 2009 (Piero Bernadini, Arthur W Rovine and Yves Derains)�� 222n.26,
265n.92, 266n.96
Eiser Infrastructure Limited and Energia Solar Luxembourg SARL v Spain ICSID Case
No ARB/13/36, Award, 4 May 2017 (John R Crook, Stanimir A Alexandrov and
Campbell McLachlan)�� 257n.57
El Paso Energy International Company v Argentina ICSID Case No ARB/03/15,
Award, 31 October 2011 (Lucius Caflisch, Piero Bernadini and
Brigitte Stern)�� 223n.31, 231, 237
xxii Table of Cases
Electrabel S.A. v Hungary ICSID Case No ARB/07/19, Award, 25 November 2015

(Gabrielle Kaufmann-Kohler, Brigitte Stern and V V Veeder)�� 223n.33
Electrabel S.A. v Hungary ICSID Case No ARB/07/19, Decision on Jurisdiction,
Applicable Law and Liability, 30 November 2012 (V V Veeder, Brigitte Stern and
Gabrielle Kaufmann-Kohler)�� 245n.172, 255–56, 257n.58, 334n.136
Feldman Karpa v Mexico ICSID Case No ARB(AF)/99/1, Award and Dissenting
Opinion, 16 December 2002 (Konstantinos Kerameus, Jorge Covarrubias Bravo
and David Gantz)�� 232n.92
GAMI Investments, Incorporated v Mexico UNCITRAL, Final Award, 15 November
2004 (Jan Paulsson, W Michael Reisman and Julio Lacarte Muró) �� 231n.88
Genin and ors v Estonia ICSID Case No ARB/99/2, Award, 25 June 2001 (L Yves
Fortier, Meir Heth and Albert Jan van den Berg)��222n.23, 223n.32, 223n.36
Glamis Gold Ltd v United States UNCITRAL, Award, 8 June 2009 (Michael K Young,
David R Caron and Kenneth D Hubbard)��223–27, 230–31, 244,
259, 274–75, 343n.194
Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v Spain ICSID Case No ARB/15/42,
Decision on Jurisdiction, Liability and Directions on Quantum, 9 March 2020
(Lawrence Collins, Peter Rees and Rolf Knieper)�� 230n.84, 264
Kim and ors v Uzbekistan ICSID Case No ARB/13/6, Decision on Jurisdiction,
8 March 2017 (David D Caron, L Yves Fortier and Toby Landau)�� 262n.78, 262
Lauder v Czech Republic UNCITRAL, Final Award, 3 September 2001
(Robert Briner, Lloyd Cutler and Bohuslav Klein)�� 221n.22
Les Laboratoires Servier, SAS and ors v Poland UNCITRAL, Final Award,
14 February 2012 (William W Park, Marc Lalonde and Bernard Hanotiau) �� 254,
274–75, 343n.196
LG&E Energy Corp, LG&E Capital Corp, LG&E International INC v Argentine
Republic ICSID Case No ARB/02/1, Decision on Liability, 3 October 2006
(Tatiana B de Maekelt, Francisco Rezek and Albert Jan van den Berg)�� 236n.120,
253–54, 263–64, 267n.103, 331n.120, 333n.132
Marfin Investment Group v Cyprus ICSID Case No ARB/13/27, Award, 26 July 2018,
(Bernard Hanotiau, David A O Edward and Daniel M Price) �� 261n.76
Mesa Power Group, LLC v Canada PCA Case No 2012-17, Award, 24 March 2016
(Gabrielle Kaufmann-Kohler, Charles N Brower and Toby Landau)��223–24,
227–31, 244, 343–44
Metalclad Corporation v Mexico ICSID Case No ARB(AF)/97/1, Award, 30 August
2000 (Elihu Lauterpacht, Benjamin R Civiletti and José Luis Siqueiros)��332–33
Methanex Corporation v United States UNCITRAL, Final Award on Jurisdiction
and Merits, 3 August 2005 (J William Rowley, W Michael Reisman and
V V Veeder)��235n.118, 333n.134, 345n.210
Micula and ors v Romania ICSID Case No ARB/05/20, Award and Separate
Opinion, 11 December 2013 (Laurent Lévy, Stanimir A Alexandrov and Georges
Abi-Saab)�� 28n.34, 223n.35, 264n.89
Occidental Petroleum Corporation and Occidental Exploration and Production
Company v Ecuador ICSID Case No ARB/06/11, Award, 5 October 2012
(L Yves Fortier, David A R Williams and Brigitte Stern)�� 255
Occidental Petroleum Corporation and Occidental Exploration and Production
Company v Ecuador ICSID Case No ARB/06/11, Decision on Annulment of the
Award, 2 November 2015 (Juan Fernández-Armesto, Florentino P Feliciano and
Rodrigo Oreamuno Blanco)�� 250n.12
OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v Spain ICSID Case No
ARB/15/36, Award, 6 September 2019 (Karl-Heinz Böckstiegel, August Reinisch,
Philippe Sands)�� 256
Table of Cases xxiii
Parkerings-Compagniet AS v Lithuania, ICSID Case No ARB/05/8,

Award, 11 September 2007 (Julian Lew, Marc Lalonde and
Laurent Lévy)��232n.95, 233–35, 244
Perenco Ecuador Limited v Ecuador ICSID Case No ARB/08/6, Interim Decision on
the Environmental Counterclaim, 11 August 2015 (Peter Tomka, Neil Kaplan
and Christopher Thomas)�� 316n.49
Philip Morris Brands Sàrl and ors v Uruguay ICSID Case No ARB/10/7, Award, 8 July
2016 (Piero Bernardini, Gary Born and James Crawford) ��6n.10, 216, 236, 239–43,
244, 263–64, 267n.104, 315–16,
319–20, 343n.195, 344n.198
The PV Investors v Spain PCA Case No 2012-14, Award, 28 February 2020 (Gabrielle
Kaufmann-Kohler, Charles Brower and Bernardo Sepúlveda Amor)�� 257n.58
PL Holdings S.à.r.l. v Poland SCC Case No V 2014/163, Partial Award, 28 June 2017
(George Bermann, Julian D M Lew and Michael E Schneider) ��252–53
Pope & Talbot Incorporated v Canada UNCITRAL, Award on the Merits of
Phase 2, 10 April 2001 (Lord Dervaird, Benjamin J Greenberg and
Murray J Belman)��222n.27, 232n.92, 233n.100
Quiborax SA and Non Metallic Minerals SA v Bolivia ICSID Case No ARB/06/2,
Award, 16 September 2015 (Gabrielle Kaufmann-Kohler, Marc Lalonde and
Brigitte Stern)�� 345n.208
Rockhopper Italia S.p.A., Rockhopper Mediterranean Ltd, and Rockhopper Exploration
Plc v Italian Republic ICSID Case No ARB/17/14, Decision on the Intra-EU
Jurisdictional Objection, 26 June 2019 (Klaus Reichert, Charles Poncet and
Pierre-Marie Dupuy)��218n.8
RREEF Infrastructure (GP) Limited and RREEF Pan-European Infrastructure Two
Lux Sàrl v Spain ICSID Case No ARB/13/30, Decision on Responsibility and on
the Principles of Quantum and Dissenting Opinion, 30 November 2018 (Alain
Pellet, Pedro Nikken and Robert Volterra)�� 253n.31, 256n.49, 256–57
RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v Spain ICSID Case No ARB/14/
34, Decision on Jurisdiction, Liability and Certain Issues of Quantum,
30 December 2019 (Anna Joubin-Bret, Judd L Kessler and Samuel
Wordsworth)��266–68, 331n.123
Saluka Investments BV v Czech Republic PCA Case No 2001-04, Partial Award, 17
March 2006 (Arthur Watts, L Yves Fortier and Peter Behrens)�� 219, 223, 225n.46,
227n.65, 232n.92, 235n.118, 264n.88
SD Myers Incorporated v Canada UNCITRAL, First Partial Award on the Merits and
Separate Opinion, 13 November 2000 (Bryan P Schwartz, Edward C Chiasson
and J Martin Hunter)�� 333n.134, 345n.208
Serafín García Armas and Karina García Gruber v Venezuela PCA Case No 2013–3,
Award, 26 April 2019 (Eduardo Grebler, Guido Santiago Tawil and Rodrigo
Oreamuno Blanco)�� 231n.86
SolEs Badajoz GmbH v Spain ICSID Case No ARB/15/38, Award, 31 July 2019 (Joan E
Donogue, Giorgio Sacerdoti and David A R Williams)�� 257n.55
South American Silver Limited v Bolivia PCA Case No 2013-15, Award, 22 November
2018 (Eduardo Zuleta Jaramillo, Francisco Orrego Vicuña and Osvaldo César
Guglielmino)�� 236n.119
Stadtwerke München GmbH and ors v Spain ICSID Case No ARB/15/1, Award, 2
December 2019 (Jeswald W Salacuse, Kaj Hobér and Zachary Douglas)�� 261n.75,
261n.76, 266n.96
Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.
v Argentina ICSID Case No ARB/03/19, Decision on Liability, 30 July 2010
(Jeswald W Salacuse, Gabrielle Kaufmann-Kohler and Pedro Nikken)�� 315n.41
xxiv Table of Cases
Técnicas Medioambientales Tecmed SA v Mexico ICSID Case No ARB(AF)/00/2,

Award, 29 May 2003 (Horacio A Grigera Naón, José Carlos Fernández Rozas and
Carlos Bernal Verea) �� 222n.28, 253–54, 261, 263–64, 265–66
International Thunderbird Gaming Corporation v. Mexico, UNCITRAL, Award,
26 January 2006 (Agustín Portal Ariosa, Thomas W. Wälde,
Albert Jan van den Berg)�� 226
Total S.A. v Argentina ICSID Case No ARB/04/1, Decision on Liability, 27 December
2010 (Giorgio Sacerdoti, Henri C Alvarez and Luis Herrera Marcano)�� 255
Marion Unglaube and Reinhardt Unglaube v Costa Rica ICSID Case no ARB/08/1,
ICSID Case no ARB/09/20, Award, 16 May 2012 (Judd Kessler, Franklin Berman
and Bernardo Cremades) �� 223
Urbaser S.A. and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa
v The Argentine Republic ICSID Case No ARB/07/26, Award, 8 December 2016
(Andreas Bucher, Campbell McLachlan and Pedro Martinez-Fraga)�� 315n.41
Vestey Group Limited v Venezuela ICSID Case No ARB/06/4, Award, 1
5 April 2016 (Gabrielle Kaufmann Kohler, Horacio Grigera Naón and Pierre-
Marie Dupuy��237–39
Waste Management, Inc. v. United Mexican States (‘Number 2’) ICSID Case No.
ARB(AF)/00/3, Award, 30 April 2004 (James Crawford, Benjamin R. Civiletti
and Eduardo Magallón Gómez)��220n.11, 229n.78
Watkins Holdings S.à r.l. and others v Spain ICSID Case No ARB/15/44,
Award, 21 January 2020 (Cecil W M Abraham, Michael Pryles
and Hélène Ruiz Fabri) ��230n.84, 256n.51
Westmoreland Coal Company v Canada ICSID Case No UNCT/20/3, Notice of
Arbitration and Statement of Claim, 12 August 2019 ��217n.5
Windstream Energy LLC v Canada PCA Case No 2013-22, Award, 27 September 2016
(Veijo Heiskanen, R Doak Bishop and Bernardo Cremades)�� 345n.209
Yukos Universal Limited v Russian Federation PCA Case No 2005-04/AA 227, Final
Award, 18 July 2014 (L Yves Fortier, Charles Poncet and
Stephen M Schwebel)�� 254n.38
Zelena NV and Energo-Zelena doo Inđija v Serbia ICSID Case No ARB/14/27 �� 231n.88
PERMANENT COURT OF INTERNATIONAL JUSTICE

Certain German Interests in Polish Upper (Germany v Poland) (Judgment of 25 May
1926) (Merits) PCIJ Rep Series A No 7 �� 293n.40
Free Zones of Upper Savoy and the District of Gex (France v Switzerland)
(Order of 6 December 1930) (1930) PCIJ Series A No 24�� 293n.40
Free Zones of Upper Savoy and the District of Gex (France v Switzerland)
(Judgment of 7 June 1932) (1932) PCIJ Series A/B No 46�� 293n.40
Territorial Jurisdiction of the International Commission of the River Oder
(Judgment of 10 September 1929) PCIJ Series A No 23��28n.32
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

‘ARA Libertad’ (Argentina v Ghana) (Order of 15 December 2012) ITLOS Reports
2012, 332��68–69n.103
The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation)
(Provisional Measures, Order of 22 November 2013) ITLOS Reports 2013, 230 �� 68–69
The Arctic Sunrise Arbitration (Kingdom of the Netherlands v Russian Federation)
(Award on the Merits) (14 August 2015) PCA Case No 2014-02 171 ILR 1 �� 24,
25n.21, 27, 56, 58, 60, 62–69, 78–80, 85,
86–87, 288–89, 290–91, 297–98
Table of Cases xxv
Chagos Marine Protected Area Arbitration (Republic of Mauritius v United Kingdom)

(Award) (18 March 2015) PCA Case No 2011-03 162 ILR 1�� 10–11, 27–28, 58, 85,
90–97, 131, 282, 283, 290–91, 328, 335
M/V ‘SAIGA’ (No. 2) (Saint Vincent and the Grenadines v Guinea) (Judgment of 1 July
1999) ITLOS Reports 1999, 10��66–67
M/V ‘Virginia G’ (Panama v Guinea-Bissau) (Judgment of 14 April 2014) ITLOS
Reports 2014, 4�� 62–63, 66–67
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission
(Advisory Opinion of 2 April 2014) ITLOS Reports 2015, 4��29–30, 59–60, 103–4,
113–21, 124–25, 130, 290–91
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area (Advisory Opinion of 1 February 2011)
ITLOS Reports 2011, 10�� 29, 59–60, 103–4, 107–13, 114, 117,
118–19, 121, 124–25, 130, 290–91
South China Sea Arbitration (Republic of the Philippines v People’s Republic of China)
(Award of 12 July 2016) PCA Case No 2013-19 170 ILR 1 �� 30n.41, 59–60, 80–81,
103–4, 121–26, 314
Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan)
(Provisional Measures, Order of 27 August 1999) ITLOS Reports 1999, 280�� 116,
125n.250, 314n.36
WORLD TRADE ORGANIZATION

Argentina—Safeguard Measures on Imports of Footwear, Report of the Appellate Body
(14 December 1999) WT/DS121/AB/R, DSR 2000:I, 515�� 331n.118
Australia—Measures Affecting the Importation of Apples from New Zealand,
Report of the Appellate Body (29 November 2010) WT/DS367/AB/R, DSR
2010:V, 2175 �� 77n.156
Australia—Certain Measures Concerning Trademarks, Geographical Indications and
Other Plain Packaging Requirements Applicable to Tobacco Products, Reports of
the Panels (28 June 2018) WT/DS435/R, WT/DS441/R WT/DS458/R,
WT/DS467/R ��32n.53, 158, 166–71, 178, 271, 317, 318–19
Australia—Certain Measures Concerning Trademarks, Geographical Indications and
Other Plain Packaging Requirements Applicable to Tobacco Products, Reports of
the Appellate Body (9 June 2020) WT/DS435/AB/R, WT/DS441/AB/R �� 158,
166–71, 318–19
Australia—Measures Affecting Importation of Salmon, Report of the Panel (12 June
1998) WT/DS18/R, WT/DS18/R/Corr.1, DSR 1998:VIII, 3407�� 186n.57
Australia—Measures Affecting Importation of Salmon, Report of the Appellate
Body (20 October 1998) WT/DS18/AB/R, DSR 1998:VIII, 3327 �� 172n.222,
184n.47, 186n.57
Brazil—Certain Measures Concerning Taxation and Charges, Reports of the Panel
(30 August 2017) WT/DS472/R, WT/DS497/R��149, 155, 205–6n.162, 317
Brazil—Certain Measures Concerning Taxation and Charges, Reports of the Appellate
Body (13 December 2018) WT/DS472/AB/R, WT/DS497/AB/R�� 155
Brazil—Measures Affecting Imports of Retreaded Tyres, Report of the Appellate Body
(3 December 2007) WT/DS332/AB/R, DSR 2007:IV, 1527 ��148–49, 152–53,
153n.80, 155–58, 162, 163n.151, 166,
168n.189, 170, 172–73, 176, 178n.18,
178, 179n.21, 180n.26, 182, 186–87
Canada—Continued Suspension of Obligations in the EC—Hormones Dispute,
Report of the Appellate Body (16 October 2008) WT/DS321/AB/R,
DSR 2008:XIV��77n.156, 340n.172
xxvi Table of Cases
China—Measures Related to the Exportation of Rare Earths, Tungsten and

Molybdenum, Reports of the Panel (26 March 2014) WT/DS431/R,
WT/DS431/R/Add.1, WT/DS432/R, WT/DS432/R/Add.1, WT/DS433/R,
DSR 2014:IV, 1127��179–81
China—Measures Related to the Exportation of Rare Earths, Tungsten, and
Molybdenum, Reports of the Appellate Body (7 August 2014) WT/DS431/AB/R,
WT/DS432/AB/R, WT/DS433/AB/R, DSR 2014:III, 805�� 179–81, 205–6n.162
China—Measures Related to the Exportation of Various Raw Materials, Reports
of the Panel (5 July 2011) WT/DS394/R, WT/DS395/R, WT/DS398/R,
DSR 2012:VII, 3501��179–80, 345n.207
China—Measures Related to the Exportation of Various Raw Materials, Reports of the
Appellate Body (30 January 2012) WT/DS394/AB/R, WT/DS395/AB/R, WT/
DS398/AB/R, DSR 2012:VII, 3295��179–80
China—Measures Affecting Trading Rights and Distribution Services for Certain
Publications and Audiovisual Entertainment Products, Report of the
Appellate Body (21 December 2009) WT/DS363/AB/R, DSR 2010:I, 3�� 153n.76,
153n.78, 153n.80
European Communities—Measures Concerning Meat and Meat Products (Hormones),
Report of the Appellate Body (16 January 1998) WT/DS26/AB/R, WT/DS48/
AB/R, DSR 1998:I, 135��153–54
European Communities—Measures Affecting the Approval and Marketing of Biotech
Products, Reports of the Panel (29 September 2006) WT/DS291/R, WT/DS292/
R, WT/DS293/R�� 320n.66
European Communities—Measures Affecting Asbestos and Asbestos Containing
Products, Report of the Appellate Body (12 March 2001) WT/DS135/AB/R,
DSR 2001:VII, 3243��142n.45, 153n.77, 163n.151, 269
European Communities—Measures Prohibiting the Importation and Marketing of Seal
Products, Reports of the Panel (25 November 2013) WT/DS400/R,
WT/DS401/R, DSR 2014:II, 365�� 157–58, 163, 186–87, 189–91
European Communities—Measures Prohibiting the Importation and Marketing of Seal
Products, Reports of the Appellate Body (22 May 2014) WT/DS400/AB/R, WT/
DS401/AB/R, DSR 2014:I, 7��154n.81, 157–58, 186–87, 189–91,
192, 319–20, 330n.113
India—Measures Concerning the Importation of Certain Agricultural Products, Report
of the Panel (14 October 2014) WT/DS430/R, DSR 2015:V, 2663�� 172n.222,
184n.48, 185
India—Measures Concerning the Importation of Certain Agricultural Products, Report
of the Appellate Body (4 June 2015) WT/DS430/AB/R, DSR 2015:V, 2459 �� 184n.48
India—Certain Measures Relating to Solar Cells and Solar Modules, Report
of the Appellate Body (16 September 2016) WT/DS456/AB/R,
DSR 2016:IV, 1827��145n.48, 147n.50, 152n.73, 160–61, 317–18
Indonesia—Measures Concerning the Importation of Chicken Meat and Chicken
Products, Report of the Panel (17 October 2017) WT/DS484/R, WT/DS484/R/
Add.1, DSR 2017:VIII, 3769�� 158
Japan—Taxes on Alcoholic Beverages, Report of the Appellate Body (4 October 1996)
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, DSR 1996:I, 97�� 78n.169,
136n.4, 191n.82
Japan—Measures Affecting the Importation of Apples, Report of the Panel (15 July
2003) WT/DS245/R, DSR 2003:IX, 4481 ��267n.106, 269–70
Japan—Measures Affecting the Importation of Apples, Report of the Appellate Body
(26 November 2003) WT/DS245/AB/R, DSR 2003:IX, 4391��269–70
Table of Cases xxvii
Korea—Import Bans, and Testing and Certification Requirements for Radionuclides,

Report of the Panel (22 February 2018) WT/DS495/R ��172, 184
Korea—Import Bans, and Testing and Certification Requirements for Radionuclides,
Report of the Appellate Body (11 April 2019) WT/DS495/AB/R�� 172
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the
Panel (31 July 2000) WT/DS161/R, WT/DS169/R, DSR 2001:I, 59�� 149–50, 269
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the
Appellate Body (11 December 2000) WT/DS161/AB/R, WT/DS169/AB/R,
DSR 2001:I, 5�� 145, 149–53, 269
Russia—Measures Concerning Traffic in Transit, Report of the Panel (5 April 2019)
WT/DS512/R �� 345n.204
Russian Federation—Measures on the Importation of Live Pigs, Pork and Other Pig
Products from the European Union, Report of the Panel (19 August 2016)
WT/DS475/R, DSR 2017:II, 361�� 170n.204
Thailand—Restrictions on the Importation of and Internal Taxes on Cigarettes,
Report of the Panel (7 November 1990) DS10/R-37S/200�� 319n.63
United States—Certain Measures Affecting Imports of Poultry from China, Report
of the Panel (29 September 2010) WT/DS392/R, DSR 2010:V, 1909��185–86
United States—Continued Suspension of Obligations in the EC—Hormones
Dispute, Report of the Appellate Body (16 October 2008) WT/DS320/AB/R,
DSR 2008:X, 3507��77n.156, 340n.172
United States—Certain Country of Origin Labelling (COOL) Requirements,
Reports of the Panel (18 November 2011) WT/DS384/R, WT/DS386/R,
DSR 2012:VI, 2745�� 197–201
United States—Certain Country of Origin Labelling (COOL) Requirements, Reports of
the Appellate Body (29 June 2012) WT/DS384/AB/R, WT/DS386/AB/R, DSR
2012:V, 2449 ��165n.161, 165n.163, 183n.45, 193, 195n.105, 197–202
United States—Certain Country of Origin Labelling (COOL) Requirements, Recourse
to Article 21.5 of the DSU by Canada and Mexico, Reports of the Panel (20
October 2014) WT/DS384/RW, WT/DS386/RW, DSR 2015:IV, 2019�� 197–201
United States—Certain Country of Origin Labelling (COOL) Requirements,
Recourse to Article 21.5 of the DSU by Canada and Mexico, Reports of the
Appellate Body (18 May 2015) WT/DS384/AB/RW, WT/DS386/AB/RW, DSR
2015:IV, 1725��165n.166, 165n.167, 166n.171,
166n.172, 183n.45, 197–201, 270–71
United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of
the Appellate Body (12 October 1998) WT/DS58/AB/R, DSR 1998:VII, 2755 �� 28,
56–57, 176n.7, 176n.11, 177–78, 179,
181–82, 186–87, 205–6n.162, 268–69,
297, 316–17, 330n.113, 331
United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse
to Article 21.5 of the DSU by Malaysia, Report of the Panel (15 June 2001) WT/
DS58/RW, DSR 2001:XIII, 6529�� 182n.37
United States—Import Prohibition of Certain Shrimp and Shrimp Products, Recourse
to Article 21.5 of the DSU by Malaysia, Report of the Appellate Body
(22 October 2001) WT/DS58/AB/RW, DSR 2001:XIII, 6481�� 182n.37
United States—Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, Report of the Panel (10 November 2004) WT/DS285/R, DSR
2005:XII, 5797��153n.78, 153–54
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting
Services, Report of the Appellate Body (7 April 2005) WT/DS285/ABR, DSR
2005:XII, 5663��28n.33, 152–54, 155
xxviii Table of Cases
United States—Measures Affecting the Importation of Animals, Meat and Other Animal
Products from Argentina, Report of the Panel (24 July 2015) WT/DS447/R, DSR
2015:VIII, 4085�� 185n.52
United States—Measures Affecting the Production and Sale of Clove Cigarettes, Report
of the Panel (2 September 2011) WT/DS406/R, DSR 2012:XI, 5865�� 153n.77,
162–66, 178n.17, 188–89, 193–97, 270n.125, 318–19
United States—Measures Affecting the Production and Sale of Clove Cigarettes,
Report of the Appellate Body (22 March 2012) WT/DS406/AB/R,
DSR 2012:XI, 5751��162–66, 193–97, 198, 200n.126, 201n.132, 205–6, 207n.169
United States—Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products, Report of the Panel (15 September 2011) WT/DS381/R, DSR
2012:IV, 2013��201–5
Tuna Products, Report of the Appellate Body (16 May 2012) WT/DS381/SB/R,
DSR 2012:IV, 1837��153n.79, 165n.161, 165n.162, 165n.164, 186–87, 198, 201–5
United States—Measures concerning the Importation, Marketing and Sale of Tuna and
Tuna Products, Recourse to Article 21.5 of the DSU by Mexico, Report of the
Panel (14 April 2015) WT/DS381/RW, DSR 2015:XI, 5653 ��201–5
Tuna Products, Recourse to Article 21.5 of the DSU by Mexico, Report of the
Appellate Body (20 November 2015) WT/DS381/AB/RW, DSR 2015:X, 5133
�� 183n.44, 183n.45, 184n.46, 186–87, 191–92, 199–200, 201–5, 330n.111
Tuna Products, Recourse to Article 21.5 of the DSU by the United States, Second
Recourse to Article 21.5 of the DSU by Mexico, Reports of the Panels
(26 October 2017) WT/DS381/RW/USA, WT/DS381/RW2��201–5
Tuna Products, Recourse to Article 21.5 of the DSU by the United States, Second
Recourse to Article 21.5 of the DSU by Mexico, Report of the Appellate Body
(14 December 2018) WTDS381/AB/RW/USA, WT/DS381/AB/RW2�� 183n.44,
183n.45, 193n.95, 196n.109, 200, 201–5
United States—Section 337 of the Tariff Act of 1930, (16 January 1989) BISD 36S/345152n.74
United States—Standards for Reformulated and Conventional Gasoline, Report
of the Appellate Body (29 April 1996) WT/DS2/AB/R, WT/DS4/AB/R, DSR
1996:I, 3��157n.104, 168n.189, 175–76,
176n.9, 177n.16, 179n.21, 181–82
OTHER
Review Panel established under the Convention on the Conservation and
Management of High Seas Fishery Resources in the South Pacific Ocean with
regard to the Objection by the Republic of Ecuador to a Decision of the Commission
of the South Pacific Regional Fisheries Management Organisation (CMM 01-2018)
(Findings and Recommendations of the Review Panel) (5 June 2018) PCA Case
No 2018-13�� 98
List of Abbreviations
Anti-Dumping Agreement Agreement on Implementation of Article VI of the General

Agreement on Tariffs and Trade 1994
BIT bilateral investment treaty
CETA Canada-European Union Comprehensive Economic and
Trade Agreement
CITES Convention on International Trade in Endangered Species of
Wild Fauna and Flora
CPTPP Comprehensive and Progressive Agreement for Trans-Pacific
Partnership
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
ECJ European Court of Justice
EEZ Exclusive Economic Zone
ETP Eastern Tropical Pacific Ocean
EU European Union
FCTC Framework Convention on Tobacco Control
FDA Food and Drug Administration
FIT programme feed-in tariff programme
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
GEIA Green Energy Investment Agreement
ICJ International Court of Justice
ICRW International Convention on the Regulation of Whaling
ILC International Law Commission
ISA International Seabed Authority
ITLOS International Tribunal for the Law of the Sea
IUU fishing illegal, unreported and unregulated fishing
JARPA II Second Phase of the Japanese Whale Research Programme
under Special Permit in the Antarctic
MCA Convention Convention on the Determination of the Minimal
Conditions for Access and Exploitation of Marine Resources
within the Maritime Areas under Jurisdiction of the Member
States of the Sub Regional Fisheries Commission
MERCOSUR Mercado Común del Sur
NAFO North Atlantic Fisheries Organisation
NAFTA North American Free Trade Agreement
PCA Permanent Court of Arbitration
SBDC Seabed Disputes Chamber
SPR Single presentation requirement
xxx List of Abbreviations
SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures

SRFC Sub-Regional Fisheries Commission
TBT Agreement Agreement on Technical Barriers to Trade
TRIMS Agreement on Trade-Related Investment Measures
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
TTIP Transatlantic Trade and Investment Partnership
UK United Kingdom
UNCLOS United Nations Convention on the Law of the Sea
US United States
USMCA Agreement between the United States of America, the United Mexican
States, and Canada
WHO World Health Organization
WTO World Trade Organization
PART I
IN T RODU C T ION
1
Introduction
The early decades of the 21st century have brought a continued expansion in inter-
national legal requirements geared towards addressing common problems and
pursuing common interests in an interdependent world.1 With globalisation has
come a continuous rise in international legal and administrative requirements
across a wide range of fields, including in the spheres of environmental protec-
tion, the fight against climate change, development, security, trade in goods and
services, banking and finance, telecommunications and e-commerce, movement
of people, labour standards and public health.2 As this body of law continues to
grow, disputes about its meaning and application naturally arise more frequently.
Consequently, the scope of States’ regulatory freedom and obligations under
international law is subject to ongoing elaboration through international adjudica-
tion.3 Predictably perhaps, as the on-flow of all this heightened international legal
activity, the reasoning of international adjudicatory bodies in regulatory disputes
is gradually producing the rudiments of an emerging set of general constraints on
States’ regulatory activity. Potentially global regulatory standards for the exercise
of States’ regulatory freedom and obligations are emerging. The book enquires into
the legitimacy of the resulting standards-enriched international law, the appropri-
ateness of the part played by international courts and tribunals in its articulation,
and systemic challenges arising.
Regulatory disputes in the environmental and health spheres are the book’s
main focus, including oceans-related disputes. Environmental and health policy
is central to States’ regulatory functions and these are areas where pressures and
difficulties for international tribunals are palpable, and where adjudicatory rea-
soning has been diversifying in response. The term ‘regulatory’ is used in a broad
sense throughout the book, with regulatory freedoms and obligations understood
as including freedoms and obligations both to establish rules and policies, and to
monitor and enforce them.4 Disputes over activities affecting shared watercourses
and the rights and obligations of riparian States feature centrally, as seen in the
1 Paul Craig, UK, EU and Global Administrative Law: Foundations and Challenges (CUP 2015).
2 Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative
Law’ (2005) 68 LCP 15, 16.
3 JHH Weiler, ‘The Geology of International Law—Governance, Democracy and Legitimacy’ (2004)
64 ZaöRV 547, 549–551.

4 Peter Cane, ‘A Framework for Historical Comparison of Control of National, Supranational and
Transnational Public Power’ in Susan Rose-Ackerman, Peter L Lindseth and Blake Emerson (eds),
Comparative Administrative Law (2nd edn, Edward Elgar 2017) 601.
Global Regulatory Standards in Environmental and Health Disputes. Caroline E. Foster, Oxford University Press.
© Caroline E. Foster 2021. DOI: 10.1093/oso/9780198810551.003.0001
4 Introduction
International Court of Justice (ICJ) and in inter-State arbitration. Similarly, judi-

cial and arbitral rulings have been needed to help define the balance between the
freedoms of the high seas and national measures to protect fisheries and other re-
sources in disputes arising under the United Nations Convention on the Law of
the Sea (UNCLOS). In the World Trade Organization (WTO), Members’ common
legal interests in free trade and their interests in the protection of human health,
biodiversity and other important regulatory goals are reconciled through inter-
pretations of WTO treaties that have evolved through dispute settlement under the
WTO general exceptions clauses and relevant provisions in the WTO agreements
governing technical barriers to trade and the application of sanitary and phyto-
sanitary measures. An ample complement of tests for the acceptability of domestic
regulatory activity is being produced in investment treaty arbitration in disputes
where host State regulatory interests and investment protection diverge.
Although there are many differences and distinctions between the adjudicatory
processes and cases, there are marked commonalities in the regulatory standards
articulated in disputes concerning the environment and health. Most notably there
is a call for coherence in domestic regulatory decision-making, requiring certain
relationships between regulatory measures and their objectives often based on
interrelated concepts of rationality, reasonableness and necessity. The development
of such requirements appears to be a natural result of the deepening overlap be-
tween international and domestic regulatory requirements. This is borne out by
the book’s empirical studies, which demonstrate that these standards are emerging
by virtue of interpretive processes employing common sense and intuition or logic
in light of the aims and purposes of the rules and regimes in question. The prin-
ciples of contextualism and effectiveness are frequently employed, even though
this may not always be readily apparent.
Overall, three emerging ‘global regulatory standards’ are prominent. First, the
standard most consistently emerging is arguably the requirement for ‘regulatory
coherence’ between States’ domestic measures and their legitimate objectives, as
just mentioned. Second, there are growing requirements for domestic administra-
tive processes to take into account the interests of those in other States who will
be affected by regulatory decision-making, in the form of ‘due regard’ formulae.
Third, States are increasingly expected to exercise ‘due diligence’ in the prevention
of harm to others, including through a certain level of control over private actors
in areas beyond national jurisdiction. These three standards—requirements for
regulatory coherence, due regard and due diligence—together offer a parcel of dis-
ciplines on States that will help strengthen public international law and fit it for
purpose in the next decades.
As international law gains in range and develops a combined need for greater
flexibility and detail it is to be expected that we should see a range of standards
emerge from the folds of diverse international legal provisions. The nature of these
regulatory ‘standards’ can be understood by adopting from general legal literature
Introduction 5
the distinction sometimes made between rules and standards.5 Any given law or
legal provision may incorporate both rules and standards. The content of a rule is
generally well specified. The content of a standard is not, and may require to be de-
termined through judicial or administrative processes.6 The authoritative articu-
lation of the standards embedded in the various legal provisions helps capture the
balance of legal interests embodied in these provisions, and render the provisions
more amenable to consistent application. The more broadly international law seeks
to govern domestic regulatory decision-making, the more likely disputes will arise
requiring specificity in the extent to which it does so, prompting the articulation of
the necessary regulatory standards.
Unelaborated standards are found across international and domestic law, and
within international law they may be found both in treaty provisions and in cus-
tomary international law. International adjudicatory bodies’ contribution is to
identify the indeterminate standards in the relevant international provisions and
rules, whatever the subfield of international law in which they operate. The formal
elaboration of these standards can be expected to help facilitate the consistent
application of international law in diverse circumstances, although they may be
articulated differently through different ‘tests’ in different contexts. In some situ-
ations standards and tests may be identifiable on the face of the relevant treaty pro-
visions but require adjudicatory elaboration. For instance writers in the investment
field use the term ‘standard’ to describe investment treaty disciplines of particularly
indeterminate content such as the guarantee of fair and equitable treatment,7 and
WTO lawyers may think in terms of the standards apparent on the face of WTO
law, such as necessity tests. In other situations standards are articulated when inter-
national courts and tribunals read them into the relevant provisions in order to
make these provisions function.
Suggesting that the relevant formulae currently identified by diverse inter-
national adjudicatory bodies in regulatory disputes represent standards in an es-
tablished sense would arguably be premature. A degree of iteration and a certain
level of acceptance will be needed for the regulatory standards and tests to ensconce
themselves in international law. There is, after all, no doctrine of precedent in inter-
national law and adjudicatory decisions are binding only between the parties and
in respect of the particular case. Advisory opinions remain advisory, although ad-
visory opinions are often encompassed in this book’s references to international
‘adjudicatory’ proceedings—employing the terms ‘adjudication’ and ‘adjudicatory’
5 Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (OUP 2005) 170; see
also HLA Hart, The Concept of Law (Clarendon Press 1961) 127–128.
6 Duncan Kennedy, ‘Form and Substance in Private Law Adjudication’ (1976) 89(8) Harv.L.Rev.
1685; Pierre Schlag, ‘Rules and Standards’ (1985) 33(2) UCLA L.Rev. 379.
7 E.g. N Jansen Calamita, ‘International Human Rights and the Interpretation of International
Investment Treaties: Constitutional Considerations’ in Freya Baetens (ed), Investment Law within
International Law: Integrationist Perspectives (CUP 2013) 164, 169–174.
6 Introduction
with licence. However, international courts’ and tribunals’ pronouncements enjoy

a special status among material sources of international law,8 and have the poten-
tial to modify how legal rules are perceived.9 In the WTO, Appellate Body deci-
sions have been understood as giving rise to a jurisprudence constante, and the
same concept has been referenced in investment treaty arbitration.10 Further, the
content of what may be the core emerging global regulatory standards may be ex-
pected increasingly to stabilise as commonalities in their articulation in different
fields of international law become increasingly apparent. This has already been
seen to a certain extent in the case of the due diligence standard attaching to pre-
ventive obligations.
The developments we are seeing in the international adjudicatory space do not
represent the full story of the development of global regulatory standards. These
developments are complemented by the inclusion of innovative formulae gov-
erning the exercise of States’ regulatory freedom in negotiated instruments.11
A requirement for certain forms of coherence between regulatory measures and
their objectives often features in negotiated treaty provisions, as seen in a range
of recently concluded investment protection treaties and regional free trade
agreements.12 Concepts of due diligence and due regard will naturally have a
certain bearing also in contexts such as the fulfilment of the Paris Agreement,
where the acuity of the climate change challenge acts as a particular catalyst,13
and further afield in spheres such as the exploration and exploitation of the deep
seabed,14 and the protection of biological diversity in areas beyond national
8 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24
October 1945), art 38(1)(d); Gerald G Fitzmaurice, ‘Some Problems Regarding the Formal Sources of
International Law’ in Frederick Mari van Asbek (ed), Symbolae Verzijl: présentées au professeur J. H.
W. Verzijl à l’occasion de son LXXX-ième anniversaire (Martinus Nijhoff 1958) 153, 172.
9 Gleider I Hernández, The International Court of Justice and the Judicial Function (OUP 2014)
292, 928.
10 Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (OUP 2014) 198; Philip
Morris v Uruguay ICSID Case No ARB/1017, Decision on Jurisdiction (Piero Bernardini, Gary Born
and James Crawford), 2 July 2013, [204].
11 Benedict Kingsbury and others (eds), Megaregulation Contested: Global Economic Ordering After
TPP (OUP 2019).

12 For instance see Comprehensive and Progressive Agreement for Trans- Pacific Partnership
(CPTPP) (signed 8 March 2018, entered into force 30 December 2018), Annex 9-B (Expropriation),
art 3(b) stating that non-discriminatory regulatory actions designed and applied to protect legitimate
public welfare objectives will not constitute indirect expropriations, except in rare circumstances.
Emphasis added.
13 Paris Agreement under the United Nations Framework Convention on Climate Change (signed
22 April 2016, entered into force 4 November 2016); ‘Decision 1/CP.21’ Framework Convention on
Climate Change Conference of the Parties (29 January 2016) FCCC/CP/2015/10/Add.1, [102]–[103].
14 Consider the ‘Decision of the Assembly of the International Seabed Authority relating to the
Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area’
International Seabed Authority Assembly (22 October 2012) ISBA/18/A/11, Annex; ‘Decision of the
Assembly of the International Seabed Authority relating to the regulations on prospecting and explor-
ation for polymetallic sulphides in the Area’ International Seabed Authority Assembly (15 November
2010) ISBA/16/A/12/Rev.1; and ‘Draft Regulations on Exploitation of Mineral Resources in the Area’
International Seabed Authority (8 August 2017) ISBA/23/LTC/CRP.3*.
Introduction 7
jurisdiction.15
The overall picture is dynamic and complex as these various distinct legal dis-
cussions contribute respectively to the gradual development of more sophisticated
international legal requirements in regard to regulatory activity. Amidst all this
activity, the part being played in the development of the international legal order
by international courts and tribunals remains constant, justifying a thorough con-
sideration of the contribution they are making. It is also to be remembered that,
although the reasoning of international courts and tribunals is guided by a range
of considerations in addition to the pleadings of the parties, governments are key
actors in the adjudicatory setting. As international law gradually settles itself it is
likely that greater convergence between international adjudicatory understandings
of existing texts and the content of newly negotiated provisions will emerge.
The apparent transition to a ‘standards-enriched’ international law prompts
us to ask about its legitimacy. Global administrative law scholars have been con-
tending with the proper conditions for regulatory activity with an international
reach for some time. The global administrative law project addresses the exercise
of administrative power internationally with an emphasis on how the activities of
international organisations may be governed, while also addressing the activities of
States which are the subject of this book.16 In the investment treaty field especially,
comparative public law thinking has made a complementary contribution.17 As a
result in part of these influences, reference to standards and tests like some of those
addressed in this book as standards ‘of review’ has become commonplace. Yet the
book doubts that global regulatory standards are necessarily best understood as
distinct standards ‘of review’. The book emphasises instead how regulatory stand-
ards emanate directly from and are an embodiment of States’ substantive commit-
ments under various legal provisions.
Global administrative law as it presently stands may not directly assist with the
question of the legitimacy of public international law and the justifiability of inter-
national law’s enrichment through the admixture of global regulatory standards
in the course of international adjudication. Global administrative law does not at-
tempt to provide a normative foundation for the guidance it offers on achieving
good administration.18 Indeed, it is said that global administrative law serves
15 See the negotiations initiated under ‘International legally binding instrument under the United
Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological
diversity of areas beyond national jurisdiction’ UNGA Res 72/249 (24 December 2017) UN Doc A/
RES/72/249.
16 Benedict Kingsbury, Nico Krisch and Richard B Stewart, ‘The Emergence of Global Administrative
Law’ (2005) 68 LCP 15; Richard B Stewart, ‘Global Standards for National Societies’ in Sabino Cassese
(ed), Research Handbook on Global Administrative Law (Edward Elgar 2016) 175.
17 Stephan W Schill (ed), International Investment Law and Comparative Public Law (OUP 2010).
18 Benedict Kingsbury, Megan Donaldson and Rodrigo Vallejo, ‘Global Administrative Law
and Deliberative Democracy’ in Anne Orford and Florian Hoffmann (eds), Oxford Handbook of
International Legal Theory (OUP 2016) 526; Benedict Kingsbury and Megan Donaldson, ‘From
Bilateralism to Publicness in International Law’ in Ulrich Fastenrath and others (eds), From Bilateralism
8 Introduction
primarily as an inspiration for reflection on administration globally and an attempt

to expand the available intellectual and practical resources.19 Therefore, although
this book may make a contribution to global administrative law scholarship, the
book looks beyond global administrative law writings for insight into the question
of legitimacy, turning to jurisprudential theory on legitimate authority.
Specifically, the book is informed by normative theory on legitimate authority in
plural or concurrently operating legal orders. Here these plural orders are domestic
legal orders and the international legal order. Drawing in part but not exclusively
on the work of Joseph Raz, prevailing normative theory on legitimate authority in
circumstances of legal plurality suggests a concept of ‘relative authority’ requiring
consideration of both substantive and procedural justifications for authority as well
as a relativity that will affect these justifications and may require the co-ordinated
exercise of authority.20 Taking into account these considerations, the book poses
and responds to three questions about the change in international law that may be
brought about through the regulatory standards emerging from international dis-
pute settlement and international courts’ and tribunals’ advisory opinions. Firstly,
how effective are the regulatory standards elaborated by international courts and
tribunals in preserving or enhancing international law’s claim to legitimate au-
thority? Secondly, how appropriate is it to rely on international adjudicatory pro-
cesses as one of the main avenues through which to create a ‘standards-enriched’
international law? Thirdly, what are the opportunities, challenges and dilemmas
arising in the course of this process of transition to a standards-enriched inter-
national law?
This approach rests on the view that the articulation of global regulatory
standards by international courts and tribunals represents a managing of the re-
lationships between domestic and international legal systems, and an ordering
of plurality. However, we are prompted also to ask about the extent to which the
emergence of regulatory standards might be understood as a constitutional pro-
cess. What we are seeing looks distinctly like a taming of sovereignty, and a form
of constitutionalisation. Indeed, the empirical studies on which the analyses in
the book are based reveal that in the search for a stronger doctrinal foundation
for the standards identified, international courts and tribunals appear tacitly to be
drawing on certain aspects of the international law abuse of rights doctrine previ-
ously connected mainly with the concept of the misuse of power. The regulatory
freedom of States is in effect treated as akin to conferred power. Regulatory stand-
ards thus infer a conceptualisation of the concept of sovereignty in international
to Community Interest: Essays in Honour of Judge Bruno Simma (OUP 2011) 79; Carol Harlow, ‘Global
Administrative Law: The Quest for Principles and Values’ (2006) 17 EJIL 187.
19 Nico Krisch, ‘Global Administrative Law and the Constitutional Ambition’ in Petra Dobner and
Martin Loughlin (eds), The Twilight of Constitutionalism? (OUP 2010) 245, 246, 256–257.
20 Nicole Roughan, Authorities: Conflicts, Cooperation and Transnational Legal Theory (OUP 2013)
(hereafter Roughan, Authorities). Though see Chapter 9, section B 3, 285.

Introduction 9
law in which it becomes a degree more analogous with sovereignty as commonly

understood today in domestic constitutional law, and subject to similar forms of
constitutional containment in certain instances.
Such a metamorphosis in the understanding of sovereignty undoubtedly fol-
lows from the adoption of the great multilateral treaties of the 20th century, but
the transmutation in its nature that now becomes apparent is a new stage, an
emergence from a chrysalis, a culmination in development, and, from a practical
perspective, a profound transition. Nevertheless, the recognition of inherent limi-
tations on sovereign regulatory freedom through the global regulatory standards
elaborated in international courts and tribunals constitutionalises international
legal relations only by degree. Revision in the concept of sovereignty and other
significant changes within legal systems are alluded to in the theory on relative au-
thority in co-existing plural legal orders drawn upon in this book, but greater con-
solidation of these orders will not always follow. However, it may be that certain
conceptual and structural developments within legal orders are to be expected in a
search for relative authority in any legal setting, including for instance in relations
between State authority and that of indigenous peoples.21
The Book’s Methodology and Structure
The book is closely based on analysis of environmental and health disputes, sup-
ported by reference to relevant literature. Valuable insights gained from a series of
interviews with present and former adjudicators, lawyers, legal advisors, registrars
and secretariat staff have helped sensitise the work to the lived realities of inter-
national adjudication, and are referred to in the book’s discussions although indi-
viduals must remain unidentified due to ethical commitments.
The book is divided into five parts. Part I of the book explains the scope and
thrust of the work, going on to familiarise the reader more closely with the con-
cept of regulatory standards and the book’s conceptual framing. Parts II, III and
IV of the book engage in the analyses of health and environmental jurisprudence
on which the book is founded. They address regulatory disputes in three clusters
of international courts and tribunals. Part II enquires into the developments in the
ICJ and in dispute settlement under UNCLOS, as well as inter-State arbitration
administered by the Permanent Court of Arbitration (PCA). Part III looks at the
reports of WTO panels and the Appellate Body, incorporating a perspective on the
latter’s appointments crisis and subsequent paralysis. Part IV considers the deci-
sions of tribunals appointed to determine investor claims against host States under
the many investment protection treaties now in existence worldwide, taking into
21 Ibid, 215–246.
10 Introduction
account current moves towards the establishment of an international investment

court or appeals mechanism. Drawing on the analyses conducted in Parts II, III
and IV, Part V of the book returns to address the book’s overarching enquiries in
greater depth, together with associated issues.
As discussed in Part II of the book, in the ICJ and under the law of the sea there
are relatively few regulatory cases. However, the regulatory standards elaborated in
these cases may as a group be the most significant ones. They relate both to States’
regulatory freedom and to their regulatory obligations, whereas the latter are less
visible in WTO dispute settlement, where the emphasis lies on the elimination of
trade restrictions, and investment treaty arbitration. As to disputes involving a
need to determine the extent of States’ regulatory obligations, the standard that
stands out most strongly in the environmental decisions of the ICJ and under
the law of the sea is the standard of due diligence that is read into international
legal rules and provisions on the prevention of transboundary harm and harm to
common spaces and resources and interests. In the longer term the ICJ’s reasoning
and dicta concerning constraints on States’ regulatory authority in the Dispute re-
garding Navigational and Related Rights (Costa Rica v Nicaragua) and Whaling in
the Antarctic (Australia v Japan: New Zealand intervening) may also prove particu-
larly significant in so far as disputes concerning constraints on States’ regulatory
freedoms are concerned. The breadth of the formula for domestic regulatory co-
herence elaborated in Navigational Rights is notable. Meantime the ICJ’s require-
ment in Whaling in the Antarctic that the design and implementation of Japan’s
scientific whaling programme be reasonable in relation to achieving its stated ob-
jectives in order to qualify as a programme for purposes of scientific research ap-
pears further to mark the ICJ’s endorsement of the trend towards the development
of an international standard that looks to regulatory coherence. Together with
the UNCLOS Annex VII Tribunal’s decision in the Chagos Marine Protected Area
Arbitration (Republic of Mauritius v United Kingdom), the judgment in Whaling in
the Antarctic also importantly advances international thinking on the significance,
scope and modes of due regard required of States in respect of others’ interests.
By virtue of its institutional context WTO dispute settlement, discussed in Part
III, has carried the flag in terms of demonstrating how international dispute settle-
ment can identify tests that give life and effect to bare treaty provisions. An on-
going series of diverse regulatory disputes arising since the adoption of the WTO’s
Dispute Settlement Understanding in 1995 has impelled panels and the Appellate
Body into elaborating a range of tests for regulatory coherence which, though still
evolving, have bedded themselves down in WTO jurisprudence. Understanding
the dynamics of the production of these tests in the trade context in the light of the
broader analyses provided in this book and more widely may be particularly im-
portant for sensitising governments whose concerns about practice in the WTO
have pushed the appellate system into disoperation. Current calls for reform in the
WTO need to be informed by a stronger appreciation of why it is that WTO dispute
Introduction 11
settlement in regulatory disputes has necessarily had to be creative in the clarifi-

cation of WTO law, while remaining conservative and accommodating towards
WTO Members.
There are important differences between the bodies studied in Parts II and III of
the book and investment treaty arbitration addressed in Part IV. Investment treaty
arbitration is the most flexible form of international adjudication studied in this
book, conducted ad hoc through small tribunals appointed specifically for the pur-
pose of each case arising under a wide range of different investment treaties, and
presently still lacking an appeal mechanism. Successive tribunals, and individual
tribunal members themselves, often express different and contrasting perspectives,
as evident in majority decisions and dissents. A particular responsiveness to the
parties can be seen, in part due to the appointments process as well as to the arbitral
traditions strongly characterising this form of dispute settlement and the presence
of private complainants.
The book bases its enquiry on developments in health and environmental cases
in all these international courts and tribunals as well as further inter-State arbitra-
tions of relevance. Considerable similarity between emerging regulatory standards
and the standards identified in this book could be predicted in many other fields,
with differences depending on the characteristics of the field. Resource limitations
have precluded extending the research into additional fora, or into areas beyond
environmental and health disputes. Important work beyond the scope of this pro-
ject could be carried out for instance by examining decisions in international and
regional human rights courts.22 It would be necessary to contend with the argu-
ment that the character of human rights norms as primarily inward-looking dis-
tinguishes that body of law from the areas addressed in this study where regulatory
standards are key to establishing a concrete balance of interests between States.23
However, this point is open to challenge, and increased international recognition
of a right to a healthy environment will further bring into question this concep-
tion of human rights, with its fulfilment resting heavily on appropriate domestic
regulation across all jurisdictions.24 Dispute resolution under regional free trade
agreements could also be the subject of future study. The book’s focus falls squarely
within public international law broadly speaking, although certain European
Union cases are referred to where helpful to the book’s analysis. The emergence
of regulatory standards in areas such as tax or competition, the regulation of
22 See for instance Johannes Hendrik Fahner, Judicial Deference in International Adjudication (Hart
2020) 30–58.
23 For discussion, Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International
Law?’ (2005) 16(5) EJIL 907, 919–921. On international investment law as the balancing of interests be-
tween States see Chapter Eight, section C.
24 Particularly if the right to a healthy environment were oriented around environmental protection
as a global public good, as proposed by Catherine Redgwell and Alan Boyle, ‘From Anthropocentric
to Ecocentric Rights’, (Human Rights for the Planet, High Level Conference on Human Rights and
Environmental Protection, Webinar, 5 October 2020).
12 Introduction
particular markets such as the energy market, or specific areas such as government
procurement may also merit investigation.
The Book’s Three Questions
Based on the analyses carried out on cases in the fora identified above, how ef-
fective are the regulatory standards elaborated in international courts and tribu-
nals in preserving or enhancing international law’s claim to legitimate authority?
From a procedural perspective, the emergence of the regulatory standards iden-
tified in this study appears on its face to help sustain this claim. Their consistent
accommodation of domestic legal authority should help ensure that domestic
decision-making in democratic States is not blocked. From a substantive perspec-
tive, the standards also appear in certain measure to help sustain international law’s
claim to legitimate authority. The standards help generate greater certainty in re-
lation to how relatively indeterminate international legal rules and provisions will
operate and thus contribute to the better operation of international legal regimes.
However, the standards’ indulgence of domestic authority limits their contribu-
tion to the development of international law’s capacity to achieve the balancing of
international interests in ways better calibrated to global substantive needs and to
an appropriate co-ordination of domestic and international legal authority, which
weakens the authority claim.
This may be disappointing, but to understand the situation better we need to
turn to the book’s second question. How appropriate is it to rely on international
adjudicatory processes in the development of regulatory standards in international
law? International adjudicatory bodies’ skills and institutional practices incorp-
orate many elements going to the strength of international adjudication as a means
for the production of regulatory standards. Yet, while the expertise of international
courts and tribunals is high, the international adjudicatory process remains con-
strained both formally and socially. Formally, international courts and tribunals
must generally work within the bounds of accepted legal procedures. Socially they
must be responsive to their immediate audiences, especially litigants and their in-
stitutional constituencies,25 and the studies in this book demonstrate that the in-
fluence of the pleadings on the standards identified by international courts and
tribunals is significant. Both types of constraint explain why we should not expect
the elaboration of standards and tests that might serve to co-ordinate domestic and
international legal authority more optimally.
Indeed, it would arguably be inappropriate for international courts and tribu-
nals to go it alone in developing, for instance, regulatory coherence tests requiring
25 Karen J Alter, Laurence R Helfer and Mikael Rask Madsen (eds), International Court Authority
(OUP 2018).
Introduction 13
proportionality stricto sensu between regulatory measures and their aims.

International adjudication is a relatively closed process. Little communal deliber-
ation informs the generation of regulatory standards through international dispute
settlement. Yet the emerging global regulatory standards will have an effect for all.
These circumstances pose a difficulty in relation to the procedural justification for
the authority of the standards-enriched international law that is being produced
through adjudicatory proceedings, as these developments are insufficiently par-
alleled in discussions elsewhere, including in multilateral fora. The difficulty is
most acute in relation to proportionality testing as compared with tests based on
rationality and reasonableness. This is because of the way in which proportionality
testing formally elevates responsibility for value judgements onto the international
plane (references to ‘proportionality’ here and throughout the book are intended as
references to proportionality stricto sensu unless otherwise indicated).26
International courts’ and tribunals’ contribution to the development of global
regulatory standards may be the best and most appropriate that can be achieved
in international adjudicatory fora in the light of these considerations concerning
legitimacy. A standard for regulatory coherence that relies on rational and reason-
able connections between regulatory measures and their effects is a serviceable
standard, as are standards that call for due regard and due diligence. The inter-
pretive processes through which the standards are elaborated are supportable, and
depending on the circumstances this may assist with procedural justification.
Accordingly, the book defends the part necessarily and constructively played by
international courts and tribunals in the elaboration of these regulatory standards,
while also calling for greater attention from the international community to the
choices to be made in the development of regulatory standards and greater deploy-
ment of political efforts in order to address the deficit. This may require greater
transparency and public involvement in international legal negotiations.
What are the broader opportunities, challenges and dilemmas arising in the
course of international adjudicatory participation in the global transition to a
‘standards-enriched’ international law? In addition to changes in the under-
standing of sovereignty, the book considers here the importance of integration
rather than fragmentation within international law, and the changing status of
private actors. As to the fragmentation problem, the difficulty is that the adjudi-
cation of regulatory disputes using certain forms of standard may constrain ef-
forts better to integrate international law. Effort will be needed to ensure that the
verticalised perception of international law’s interaction with domestic law that
may be engendered by the adoption of common standards in the regulatory space
does not reinforce the silo effect that presently tends to segment international law
into its various institutional areas such as international trade law, international
26 Chapter Eight; Chapter Ten, section C 1.

14 Introduction
environmental law, international human rights law and international investment

law. The need for an integrated international law calls for an active response, set-
ting out to find methods by which it can more concretely be assured that recog-
nition is given to the ways in which international law broadly speaking does and
must infuse States’ regulatory actions.
Identifying opportunities for syntheses between social, environmental and eco-
nomic law and policy under the emerging new global regulatory standards will be
important here. There may be potential for international law to embrace new ideas
to help achieve appropriate effects as part and parcel of the application of regula-
tory standards. For instance, it is possible to envisage a requirement that domestic
decision-makers take into account, as mandatory relevant considerations, legal is-
sues arising in flanking subfields of international law, perhaps as part of States’ due
regard for the interests of other States as seen in domestic public law in a number
of jurisdictions. Attention must also be devoted to the changing status of private
actors within public international law, and their future standing and influence
across the public international law field.27 The proper place for private interests
in global law, and especially of non-natural persons in the form of incorporated
entities, requires careful and ongoing consideration. The influence of private actors
in global law will continue to grow. Through an expanding body of transnational
law, public and private actors together progress the rules governing much of the
commercial and economic activity around the world.28 Business’s contributions to
global regulation may be inevitable and indeed invaluable as the private sector out-
paces government capacity in a wide range of areas. Focusing on the transparency
and accountability of private action will be important for the future.
Traversing these opportunities and challenges are further considerations con-
cerning the appropriateness of regulatory standards that would rely on the notion
of proportionality stricto sensu to determine the legality of regulatory measures.
Proportionality might possibly enable international law better to serve its subjects’
needs by overcoming domestic biases and producing decisions more aligned with
a grounded balancing of international interests and improved co-ordination of do-
mestic and international authority. This may explain the extent to which propor-
tionality is hailed as a principle of distinct importance for the constitutionalisation
of the global legal order, including in the context of investment treaty arbitration.
However, as indicated, in principle it is not for international courts and tribunals
to institute proportionality testing. International law’s legitimacy would not be en-
hanced by the addition of a regulatory coherence test of such substantive signifi-
cance for the balancing of global interests without more representative processes.
27 Neil Walker, Intimations of Global Law (CUP 2015) 180.

28 Philip C Jessup, Transnational Law (Yale University Press 1956); Harold Hongju Koh,
‘Transnational Legal Process’ (1996) 75 Neb.L.Rev. 181; Terence C Halliday and Gregory Shaffer,
Transnational Legal Orders (CUP 2015).
Another random document with
no related content on Scribd:
of infamous crime, person unable to read Constitution
in English, and to write his name.
COLORADO.
Citizen or alien, male or female, who has declared intention 4
months prior to election.
Under guardianship, insane, idiots, or imprisoned.
CONNECTICUT.
Citizen of United States.
Convicted of felony or theft, unless pardoned.

Person unable to read Constitution or statutes.
DELAWARE.
Citizen who has paid registration fee of $1.
Idiots, insane, paupers, felons. Person who can not

read the English language and write his name.
FLORIDA.
Insane, under guardianship, convicted of felony or any

infamous crime.
GEORGIA.
Citizen of the United States who has paid all
his taxes since 1877.
Idiots, insane, convicted of crime punishable by imprisonment

until pardoned, failure to pay taxes.
IDAHO.
Citizen of the United States, male or female.
Under guardianship, idiots, insane, convicted of felony,
treason, or embezzlement of public funds, polygamist or
bigamist.
ILLINOIS.
Citizen of the United States.
Convicted of felony.
INDIANA.
Citizen of United States, or alien who has declared intention
and resided 1 year in United States and 6 months in State.
Convicted of crime and disfranchised by judgment of the court,

United States soldiers, sailors, and marines.
IOWA.
Idiots, insane, convicted of infamous crime.
KANSAS.
Citizen of United States, alien who has declared intention, or
[under] treaties with Mexico.
Felons, insane, duelists, rebels, not restored to

citizenship, under guardianship, public embezzlers,
offering or accepting a bribe.
KENTUCKY.
Treason, felony, bribery at election.
LOUISIANA.
Citizen of United States or alien who has declared intention.
Idiots, insane, convicted of treason, embezzlement of public
funds, all crime punishable by imprisonment in penitentiary,
persons unable to read and write, and not owning property in
the State assessed at $300, or not the son or grandson of a
citizen of the United States prior to January 1, 1867, person
who has not paid pool tax.
MAINE.
Paupers, persons under guardianship, Indians not taxed, and in

1893 all new voters who can not read the Constitution or write
their own names in English.
MARYLAND.
Convicted of larceny or other infamous crime, unless pardoned,

persons convicted of bribery.
MASSACHUSETTS.
Paupers and persons under guardianship, person who can not

read Constitution in English and write his name.
MICHIGAN.
Citizen or inhabitant who has declared intention under United
States laws 6 months before election and lived in State
2½ years.
Indians, duelists, and accessories.
MINNESOTA.
Citizen of United States or alien who has declared intention,
and civilized Indians.
Convicted of treason or felony, unless pardoned, persons
under guardianship or insane.
MISSISSIPPI.
Insane, idiots, Indians not taxed, felons, persons who have

not paid taxes, persons who can not read or understand
Constitution.
Missouri.
Citizen of United States or alien who has declared intention
not less than 1 year or more than 5 before offering to vote.
United States soldiers and marines, paupers, criminals

convicted once until pardoned, felons and violators of
suffrage laws convicted a second time.
MONTANA.
Felons, unless pardoned, idiots, insane, United States

soldiers, seamen, and marines, Indians.
NEBRASKA.
Citizen of United States or alien who has declared intention.
Convicts.
NEVADA.
Idiots, insane, unpardoned convicts, Indians, Chinese.
NEW HAMPSHIRE.
Paupers (except honorably discharged United States soldiers
and sailors), persons excused from paying taxes at their own
request,
NEW JERSEY.
Citizen of the United States or alien who has declared
intention 30 days prior to election.
Idiots, insane paupers, persons convicted of crimes (unless

pardoned) which exclude them from being witnesses.
NEW YORK.
Citizen who shall have been a citizen for 90 days.
Convicted of bribery or any infamous crime, Indians under

tribal relations.
NORTH CAROLINA.
Convicted of felony or other infamous crime, idiots,

lunatics, persons unable to read or write, unless lineal
descendant of citizen of United States prior to January 1,
1867, nonpayment of poll tax.
NORTH DAKOTA.
Citizen of the United States, alien who has declared
intention 1 year, and civilized Indian.
Under guardianship, persons non compos mentis, or convicted

of felony and treason, unless restored to civil rights.
OHIO.
Felony until pardoned, idiots, insane, United States

soldiers and sailors.
{677}
OREGON.
Citizen of Unite States or alien who
has declared intention 1 year preceding election.
Idiots, insane, convicted of felony, United States soldiers

and sailors, Chinese.
PENNSYLVANIA.
Citizen of the United States at least 1 month, and if 22 years
old or more, must have paid tax within 2 years.
Convicted of some offense whereby right of suffrage is

forfeited, non taxpayers.
RHODE ISLAND.
Paupers, lunatics, persons non compos mentis, convicted

of bribery or infamous crime until restored to right to
vote under guardianship.
SOUTH CAROLINA.
Convicted of treason, murder, or other infamous crime,

dueling, paupers, insane, idiots, person who has not
paid poll tax, who can not read an write any section of
the State constitution, or can show that he has paid all
taxes on property within the State assessed at $300.
SOUTH DAKOTA.
Citizen of the United States or alien
who has declared intention.
Under guardianship, idiots, insane, convicted of treason
or felony, unless pardoned.
TENNESSEE.
Citizen of the United States who has paid poll tax of
preceding year.
Convicted of bribery or other infamous offense.
TEXAS.
intention.
Idiots, lunatics, paupers, convicted of felony, United

States soldiers and seamen.
UTAH.
Citizen, male and female.
Idiots, insane, convicted of treason or violation of

election laws.
VERMONT.
Those who have not obtained the approbation of the board of

civil authority of the town in which they reside.
VIRGINIA.
Idiots, lunatics, convicted of bribery at election,

embezzlement of public funds, treason, felony and petty
larceny, duelists and abettors unless pardoned by legislature.
WASHINGTON.
Indians not taxed, idiots, insane, persons convicted of
infamous crimes.
WEST VIRGINIA.
Citizen of the State.
Paupers, idiots, lunatics, convicted of treason, felony, or

bribery at elections.
WISCONSIN.
intention.
Insane, under guardianship, convicted of treason or felony,

unless pardoned, Indians having tribal relations.
WYOMING.
Citizen of the United States, male and female.
Idiots, insane, persons convicted of infamous crimes unless

restored to civil rights, unable to read State constitution.
Congressional Record, January 4-5, 1901,

pages 618-20, and 662-5.
The resolutions of Mr. Olmsted were not adopted. The

reapportionment was made on the basis of the totals of the
census returns, with no reckoning of any denials of the right
to vote. The following is the text of the Act, as passed and
approved January 16:
"Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, That after
the third day of March, nineteen hundred and three, the House
of Representatives shall be composed of three hundred and
eighty-six members [the existing number being 357] to be
apportioned among the several States as follows:
Alabama, nine;
Arkansas, seven;
California, eight;
Colorado, three;
Connecticut, five;
Delaware, one;
Florida, three;
Georgia, eleven;
Idaho, one;
Illinois, twenty-five;
Indiana, thirteen;
Iowa, eleven;
Kansas, eight;
Kentucky, eleven;
Louisiana, seven;
Maine, four;
Maryland, six;
Massachusetts, fourteen;
Michigan, twelve;
Minnesota, nine;
Mississippi, eight;
Missouri, sixteen:
Montana, one;
Nebraska, six;
Nevada, one;
New Hampshire, two;
New Jersey, ten;
New York, thirty-seven;
North Carolina, ten;
North Dakota, two;
Ohio, twenty-one:
Oregon, two;
Pennsylvania, thirty-two;
Rhode Island, two;
South Carolina, seven;
South Dakota, two;
Tennessee, ten:
Texas, sixteen:
Utah, one;
Vermont, two;
Virginia, ten;
Washington, three;
West Virginia, five;
Wisconsin, eleven; and
Wyoming, one.
"SECTION 2.
That whenever a new State is admitted to the Union the
Representative or Representatives assigned to it shall be in
addition to the number three hundred and eighty-six.
"SECTION 3.
That in each State entitled under this apportionment, the
number to which such State may be entitled in the Fifty-eighth
and each subsequent Congress shall be elected by districts
composed of contiguous and compact territory and containing as
nearly as practicable an equal number of inhabitants. The said
districts shall be equal to the number of the Representatives
to which such State may be entitled in Congress, no one
district electing more than one Representative.
"SECTION 4.
That in case of an increase in the number of Representatives
which may be given to any State under this apportionment such
additional Representative or Representatives shall be elected
by the State at large, and the other Representatives by the
districts now prescribed by law until the legislature of such
State in the manner herein prescribed, shall redistrict such
State; and if there be no increase in the number of
Representatives from a State the Representatives thereof shall
be elected from the districts now prescribed by law until such
State be redistricted as herein prescribed by the legislature
of said State; and if the number hereby provided for shall in
any State be less than it was before the change hereby made,
then the whole number to such State hereby provided for shall
be elected at large, unless the legislatures of said States
have provided or shall otherwise provide before the time fixed
by law for the next election of Representatives therein.
"SECTION 5.
That all Acts and parts of Acts inconsistent with this Act are
hereby repealed."
No existing State quota was reduced by the new apportionment,

and the gains were as follows:
Illinois, New York and Texas, 3;
Minnesota, New Jersey and Pennsylvania, 2;
Arkansas, California, Colorado, Connecticut, Florida,
Louisiana, Massachusetts, Mississippi, Missouri, North
Carolina, North Dakota, Washington, West Virginia and
Wisconsin, 1.
{678}
That clause of the third section which requires districts to

be "composed of contiguous and compact territory" is intended
to be a bar to the partisan trick called "gerrymandering." The
vote on the bill in the House (165 against 102) was singularly
non-partisan. The minority was said to be composed of exactly
the same number of Republicans and Democrats, 51 of each, and
in the majority vote there were included 84 Republicans and 81
Democrats. The vote was also non-sectional, except that New
England voted almost solidly for the measure. East, South and
West the State delegations were almost equally divided.
UNITED STATES OF AMERICA: A. D. 1901 (February).

Act to increase the standing army of the nation to 100,000 men.
In his annual Message to Congress, December 3, 1900, the

President set forth the military needs of the country, created
by its new policy of imperial expansion, and recommended that
the permanent army be raised to 100,000 in number, from 45,000
to 60,000 of which would be required in the Philippine Islands
until their people were made submissive to the authority of
the United States. In accord with the executive
recommendation, Congress passed "an Act to increase the
efficiency of the permanent military establishment of the
United States," which became law by the President's signature
on the 2d of February, 1901. Its first section provides that
"from and after the approval of this Act the Army of the
United States, including the existing organizations, shall
consist of fifteen regiments of cavalry, a corps of artillery,
thirty regiments of infantry, one Lieutenant-General, six
major-generals, fifteen brigadier-generals, an
Adjutant-General's Department, an Inspector-General's
Department, a Judge-Advocate-General's Department, a
Quartermaster's Department, a Subsistence Department, a
Medical Department, a Pay Department, a Corps of Engineers, an
Ordnance Department, a Signal Corps, the officers of the
Record and Pension Office, the chaplains, the officers and
enlisted men of the Army on the retired list, the professors,
corps of cadets, the army detachments and band at the United
States Military Academy, Indian scouts as now authorized by
law, and such other officers and enlisted men as may
hereinafter be provided for." A subsequent section enacts that
the total enlisted force of the line of the army shall not exceed
at any one time 100,000.
Section 2 provides that "each regiment of cavalry shall

consist of one colonel, one lieutenant-colonel, three majors,
fifteen captains, fifteen first lieutenants, and fifteen
second lieutenants; two veterinarians, one sergeant-major, one
quartermaster-sergeant, one commissary-sergeant, three
squadron sergeants-major, two color-sergeants with rank, pay,
and allowances of squadron sergeant-major, one band, and
twelve troops organized into three squadrons of four troops
each. … Each troop of cavalry shall consist of one captain,
one first lieutenant, one second lieutenant, one first
sergeant, one quartermaster-sergeant, six sergeants, six
corporals, two cooks, two farriers and blacksmiths, one
saddler, one wagoner, two trumpeters, and forty-three
privates; the commissioned officers to be assigned from among
those hereinbefore authorized."
Sections 3-9, relating to the Artillery, are, in part, as

follows:
"That the regimental organization of the artillery arm of the

United States Army is hereby discontinued, and that arm is
constituted and designated as the Artillery Corps. It shall be
organized as hereinafter specified and shall belong to the
line of the Army. That the Artillery Corps shall comprise two
branches—the coast artillery and the field artillery. The
coast artillery is defined as that portion charged with the
care and use of the fixed and movable elements of land and
coast fortifications, including the submarine mine and torpedo
defenses; and the field artillery as that portion accompanying
an army in the field, and including field and light artillery
proper, horse artillery, siege artillery, mountain artillery,
and also machine-gun batteries: Provided, That this shall not
be construed to limit the authority of the Secretary of War to
order coast artillery to any duty which the public service
demands or to prevent the use of machine or other field guns
by any other arm of the service under the direction of the
Secretary of War. … That the Artillery Corps shall consist of
a Chief of Artillery, who shall be selected and detailed by
the President from the colonels of artillery, to serve on the
staff of the general officer commanding the Army, and whose
duties shall be prescribed by the Secretary of War: fourteen
colonels, one of whom shall be the Chief of Artillery;
thirteen lieutenant-colonels, thirty-nine majors, one hundred
and ninety-five captains, one hundred and ninety-five first
lieutenants, one hundred and ninety-five second lieutenants;
and the captains and lieutenants provided for in this section
not required for duty with batteries or companies shall be
available for duty as staff officers of the various artillery
garrisons and such other details as may be authorized by law
and regulations; twenty-one sergeants-major, with the rank,
pay, and allowances of regimental sergeants-major of infantry;
twenty-seven sergeants-major, with the rank, pay, and
allowances of battalion sergeants-major of infantry; one
electrician sergeant to each coast artillery post having
electrical appliances; thirty batteries of field artillery,
one hundred and twenty-six batteries of coast artillery, and
ten bands organized as now authorized by law for artillery
regiments: Provided, That the aggregate number of enlisted men
for the artillery, as provided under this Act, shall not
exceed eighteen thousand nine hundred and twenty, exclusive of
electrician sergeants." Concerning the Infantry it is
provided, in Section 10, that "each regiment of infantry shall
consist of one colonel, one lieutenant colonel, three majors,
fifteen captains, fifteen first lieutenants, and fifteen
second lieutenants; one sergeant-major, one
quartermaster-sergeant, one commissary-sergeant, three
battalion sergeants-major, two color sergeants, with rank,
pay, and allowances of battalion sergeants-major, one band,
and twelve companies, organized into three battalions of four
companies each. Of the officers herein provided, the captains
and lieutenants not required for duty with the companies shall
be available for detail as regimental and battalion staff
officers and such other details as may be authorized by law or
regulations. … Each infantry company shall consist of one
captain, one first lieutenant, one second lieutenant, one
first sergeant, one quartermaster-sergeant, four sergeants,
six corporals, two cooks, two musicians, one artificer, and
forty-eight privates, the commissioned officers to be assigned
from those hereinbefore authorized."
{679}
Section 11 provides that "the enlisted force of the Corps of
Engineers shall consist of one band and three battalions of
engineers. … Each battalion of engineers shall consist of one
sergeant-major, one quartermaster-sergeant, and four
companies. Each company of engineers shall consist of one
first sergeant, one quartermaster-sergeant, with the rank,
pay, and allowances of sergeant, eight sergeants, ten
corporals, two musicians, two cooks, thirty-eight first-class
and thirty-eight second-class privates."
Section 12 relates to the appointment of army chaplains—one

for each regiment of cavalry and infantry, and twelve for the
corps of artillery—no person to be appointed who has passed
the age of forty years. The office of post chaplain is
abolished. Sections 13 to 27 relate mainly to the organization
of the several Departments, of the Adjutant-General,
Inspector-General, Judge-Advocate-General,
Quartermaster-General, Commissary-General, Surgeon-General,
Paymaster-General, Chief of Engineers, Chief of Ordnance, etc.
Section 28, prescribing the rules of promotion and

appointment, is as follows: "That vacancies in the grade of
field officers and captain, created by this Act, in the
cavalry, artillery, and infantry shall be filled by promotion
according to seniority in each branch, respectively. Vacancies
existing after the promotions have been made shall be provided
for as follows: A sufficient number shall be reserved in the
grade of second lieutenant for the next graduating class at
the United States Military Academy. Persons not over forty
years of age who shall have at any time served as volunteers
subsequent to April twenty-first, eighteen hundred and
ninety-eight, may be ordered before boards of officers for
such examination as may be prescribed by the Secretary of War,
and those who establish their fitness before these examining
boards may be appointed to the grades of first or second
lieutenant in the Regular Army, taking rank in the respective
grades according to seniority as determined by length of prior
commissioned service; but no person appointed under the
provisions of this section shall be placed above another in
the same grade with longer commissioned service, and nothing
herein contained shall change the relative rank of officers
heretofore commissioned in the Regular Army. Enlisted men of
the Regular Army or volunteers may be appointed second
lieutenants in the Regular Army to vacancies created by this
Act, provided that they shall have served one year, under the
same conditions now authorized by law for enlisted men of the
Regular Army."
Important provisions are embodied in Sections 35 and 36, as

follows:
"SECTION 35. That the Secretary of War be, and he is hereby,

authorized and directed to cause preliminary examinations and
surveys to be made for the purpose of selecting four sites
with a view to the establishment of permanent camp grounds for
instruction of troops of the Regular Army and National Guard,
with estimates of the cost of the sites and their equipment
with all modern appliances, and for this purpose is authorized
to detail such officers of the Army as may be necessary to
carry on the preliminary work; and the sum of ten thousand
dollars is hereby appropriated for the necessary expense of
such work, to be disbursed under the direction of the
Secretary of War: Provided, That the Secretary of War shall
report to Congress the result of such examination and surveys,
and no contract for said sites shall be made nor any
obligation incurred until Congress shall approve such
selections and appropriate the money therefor.
"SECTION 36. That when in his opinion the conditions in the

Philippine Islands justify such action the President is
authorized to enlist natives of those islands for service in
the Army, to be organized as scouts, with such officers as he
shall deem necessary for their proper control, or as troops or
companies, as authorized by this Act, for the Regular Army.
The President is further authorized, in his discretion, to
form companies, organized as are companies of the Regular
Army, in squadron's or battalions, with officers and
non-commissioned officers corresponding to similar
organizations in the cavalry and infantry arms. The total
number of enlisted men in said native organizations shall not
exceed twelve thousand, and the total enlisted force of the
line of the Army, together with such native force, shall not
exceed at any one time one hundred thousand. … When, in the
opinion of the President, natives of the Philippine Islands
shall, by their services and character, show fitness for
command, the President is authorized to make provisional
appointments to the grades of second and first lieutenants
from such natives, who, when so appointed, shall have the pay
and allowances to be fixed by the Secretary of War, not
exceeding those of corresponding grades of the Regular Army."
Section 38 abolishes the so-called "Army Canteen," in

compliance with strenuous demands from temperance
organizations in the country, notwithstanding much testimony
favorable to the canteen system from well-informed and
conscientious witnesses. The language of the section is as
follows: "The sale of or dealing in beer, wine, or any
intoxicating liquors, by any person in any post exchange or
canteen or army transport, or upon any premises used for
military purposes by the United States, is hereby prohibited.
The Secretary of War is hereby directed to carry the
provisions of this section into full force and effect." Prompt
obedience to this command of law was given by the War
Department, which issued the required general order February
4th.
The following amendment, proposed by Senator Hoar for addition

to the Act, was voted down: "Provided, That no further
military force shall be used in the Philippine Islands, except
such as may be necessary to keep order in places there now
actually under the peaceable control of the United States and
to protect persons or property to whom, in the judgment of the
President, protection may be due from the United States, until
the President shall have first proclaimed an amnesty for all
political offenses committed against the United States in the
Philippine Islands, and shall have, if in his power, agreed
upon an armistice with persons now in hostility to the United
States, and shall have invited such number, not less than 10,
as he shall think desirable of the leaders or representatives
of the persons now hostile to the United States there to come
to the United States and state their wishes and the condition,
character, and wishes of the people of the Philippine Islands
to the Executive and Congress, and shall have offered to
secure to them safe conduct to come, abide, and return, and
shall have provided at the public charge for the expenses of
their transportation both ways and their stay in this country
for a reasonable and sufficient time for such purpose."
{680}
UNITED STATES OF AMERICA: A. D. 1910 (February).

The Russian sugar question.
United States countervailing duty and Russian retaliation.
See (in this volume)

SUGAR BOUNTIES.
UNITED STATES OF AMERICA: A. D. 1901 (February-March).

Adoption of the so-called "Spooner Amendment" to
the Army Appropriation Bill empowering the President to
establish a civil government in the Philippines.

PHILIPPINE ISLANDS: A. D. 1901 (FEBRUARY-MARCH).
UNITED STATES OF AMERICA: A. D. 1901 (February-March).

Adoption of the "Platt Amendment," prescribing conditions on
which the President is authorized to "leave the government and
control of the island of Cuba to its people."

CUBA: A. D. 1901 (FEBRUARY-MARCH).
UNITED STATES OF AMERICA: A. D. 1901 (March).

Reinauguration of President McKinley for a second term in the
executive office. His inaugural address.
The reinauguration of President McKinley, for the second term

of office to which he had been elected, was performed with the
customary ceremonies, at the capitol, in Washington, on the
4th of March, 1001. His inaugural address upon the occasion is
especially interesting, for the reason that it indicates the
understanding with which the President received his
re-election, and the interpretation which he has put upon it
as an expression of the national will on questions of
extraordinary moment. He spoke as follows:
"My Fellow Citizens: When we assembled here on March 4, 1897,

there was great anxiety with regard to our currency and
credit. None exists now. Then our treasury receipts were
inadequate to meet the current obligations of the government.
Now they are sufficient for all public needs, and we have a
surplus instead of a deficit. Then I felt constrained to
convene the Congress in extraordinary session to devise
revenues to pay the ordinary expenses of the government. Now I
have the satisfaction to announce that the Congress just
closed has reduced taxation in the sum of $41,000,000. Then
there was deep solicitude because of the long depression in
our manufacturing, mining, agricultural and mercantile
industries, and the consequent distress of our laboring
population. Now every avenue of production is crowded with
activity, labor is well employed and American products find
good markets at home and abroad. Our diversified productions,
however, are increasing in such unprecedented volume as to
admonish us of the necessity of still further enlarging our
foreign markets by broader commercial relations. For this
purpose reciprocal trade arrangements with other nations
should in liberal spirit be carefully cultivated and promoted.
"The national verdict of 1896 has for the most part been
executed. Whatever remains unfulfilled is a continuing
obligation resting with undiminished force upon the Executive
and the Congress. But fortunate as our condition is, its
permanence can only be assured by sound business methods and
strict economy in national administration and legislation. We
should not permit our great prosperity to lead us to reckless
ventures in business or profligacy in public expenditures.
While the Congress determines the objects and the sum of
appropriations, the officials of the executive departments are
responsible for honest and faithful disbursement, and it
should be their constant care to avoid waste and extravagance.
Honesty, capacity and industry are nowhere more indispensable
than in public employment. These should be fundamental
requisites to original appointment and the surest guarantees
against removal.
"Four years ago we stood on the brink of war without the

people knowing it and without any preparation or effort at
preparation for the impending peril. I did all that in honor
could be done to avert the war, but without avail. It became
inevitable, and the Congress at its first regular session,
without party division, provided money in anticipation of the
crisis and in preparation to meet it. It came. The result was
signally favorable to American arms and in the highest degree
honorable to the government. It imposed upon us obligations
from which we cannot escape, and from which it would be
dishonorable to seek to escape. We are now at peace with the
world, and it is my fervent prayer that if differences arise
between us and other powers they may be settled by peaceful
arbitration, and that hereafter we may be spared the horrors
of war.

Global Regulatory Standards in Environmental and Health Disputes Regulatory Coherence Due Regard and Due Diligence Caroline E Foster Full Chapter

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Global Regulatory Standards in

Environmental and Health Disputes:

I am delighted to have been invited to write a foreword to this book by my friend

Professor Andrew Lang

van den Bossche, Thomas Cottier, Georgio Sacerdoti, Claus-​Dieter Ehlermann,

Table of Cases  xix

C. The Role of International Courts and Tribunals  285

EUROPEAN COURT OF HUMAN RIGHTS

INTER-​A MERICAN COURT OF HUMAN RIGHTS

INTERNATIONAL COURT OF JUSTICE

Fisheries Jurisdiction (Spain v Canada) Judgment of 4 December 1998 [1998]

INTER-​S TATE ARBITRATION

Al Tamimi v Oman ICSID Case No ARB/​11/​33, Award, 3 November 2015 (David

Electrabel S.A. v Hungary ICSID Case No ARB/​07/​19, Award, 25 November 2015

Parkerings-​Compagniet AS v Lithuania, ICSID Case No ARB/​05/​8,

Técnicas Medioambientales Tecmed SA v Mexico ICSID Case No ARB(AF)/​00/​2,

PERMANENT COURT OF INTERNATIONAL JUSTICE

UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

Chagos Marine Protected Area Arbitration (Republic of Mauritius v United Kingdom)

WORLD TRADE ORGANIZATION

China—​Measures Related to the Exportation of Rare Earths, Tungsten and

Korea—​Import Bans, and Testing and Certification Requirements for Radionuclides,

Anti-​Dumping Agreement Agreement on Implementation of Article VI of the General

SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures

64 ZaöRV 547, 549–​551.

International Court of Justice (ICJ) and in inter-​State arbitration. Similarly, judi-

with licence. However, international courts’ and tribunals’ pronouncements enjoy

TPP (OUP 2019).

primarily as an inspiration for reflection on administration globally and an attempt

(hereafter Roughan, Authorities). Though see Chapter 9, section B 3, 285.

law in which it becomes a degree more analogous with sovereignty as commonly

The Book’s Methodology and Structure

account current moves towards the establishment of an international investment

settlement in regulatory disputes has necessarily had to be creative in the clarifi-

The Book’s Three Questions

proportionality stricto sensu between regulatory measures and their aims.

26 Chapter Eight; Chapter Ten, section C 1.

environmental law, international human rights law and international investment

27 Neil Walker, Intimations of Global Law (CUP 2015) 180.

Under guardianship, insane, idiots, or imprisoned.

Convicted of felony or theft, unless pardoned.

Idiots, insane, paupers, felons. Person who can not

Insane, under guardianship, convicted of felony or any

Idiots, insane, convicted of crime punishable by imprisonment

Convicted of crime and disfranchised by judgment of the court,

Idiots, insane, convicted of infamous crime.

Felons, insane, duelists, rebels, not restored to

Treason, felony, bribery at election.

Paupers, persons under guardianship, Indians not taxed, and in

Convicted of larceny or other infamous crime, unless pardoned,

Paupers and persons under guardianship, person who can not

Indians, duelists, and accessories.

Insane, idiots, Indians not taxed, felons, persons who have

United States soldiers and marines, paupers, criminals

Felons, unless pardoned, idiots, insane, United States

Idiots, insane, unpardoned convicts, Indians, Chinese.

Idiots, insane paupers, persons convicted of crimes (unless

Convicted of bribery or any infamous crime, Indians under

Convicted of felony or other infamous crime, idiots,

Under guardianship, persons non compos mentis, or convicted

Felony until pardoned, idiots, insane, United States

Idiots, insane, convicted of felony, United States soldiers

Convicted of some offense whereby right of suffrage is

van den Bossche, Thomas Cottier, Georgio Sacerdoti, Claus-Dieter Ehlermann,

Table of Cases xix

C. The Role of International Courts and Tribunals 285

INTER-A MERICAN COURT OF HUMAN RIGHTS

INTER-S TATE ARBITRATION

Al Tamimi v Oman ICSID Case No ARB/11/33, Award, 3 November 2015 (David

Electrabel S.A. v Hungary ICSID Case No ARB/07/19, Award, 25 November 2015

Parkerings-Compagniet AS v Lithuania, ICSID Case No ARB/05/8,

Técnicas Medioambientales Tecmed SA v Mexico ICSID Case No ARB(AF)/00/2,

China—Measures Related to the Exportation of Rare Earths, Tungsten and

Korea—Import Bans, and Testing and Certification Requirements for Radionuclides,

Anti-Dumping Agreement Agreement on Implementation of Article VI of the General

64 ZaöRV 547, 549–551.

International Court of Justice (ICJ) and in inter-State arbitration. Similarly, judi-