Professional Documents
Culture Documents
Global Regulatory Standards in Environmental and Health Disputes Regulatory Coherence Due Regard and Due Diligence Caroline E Foster Full Chapter PDF
Global Regulatory Standards in Environmental and Health Disputes Regulatory Coherence Due Regard and Due Diligence Caroline E Foster Full Chapter PDF
https://ebookmass.com/product/due-to-a-death-mary-kelly/
https://ebookmass.com/product/smokeless-tobacco-products-
characteristics-usage-health-effects-and-regulatory-implications-
wallace-b-pickworth/
https://ebookmass.com/product/global-algorithmic-capital-markets-
high-frequency-trading-dark-pools-and-regulatory-challenges-
walter-mattli/
https://ebookmass.com/product/i-due-ritratti-il-giallo-mondadori-
reginald-hill/
The Legal and Regulatory Environment of Business 19th
Edition Pagnattaro
https://ebookmass.com/product/the-legal-and-regulatory-
environment-of-business-19th-edition-pagnattaro/
https://ebookmass.com/product/human-metabolism-a-regulatory-
perspective-4th-edition/
https://ebookmass.com/product/devils-due-complete-series-
books-1-4-eva-charles/
https://ebookmass.com/product/102-things-to-do-before-you-are-
due-dawn-dais/
https://ebookmass.com/product/environmental-health-from-global-
to-local-public-health-environmental-health-3rd-edition-ebook-
pdf/
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
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Caroline E. Foster 2021
The moral rights of the author have been asserted
First Edition published in 2021
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2021932330
ISBN 978–0–19–881055–1
DOI: 10.1093/oso/9780198810551.001.0001
Printed and bound by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
For Rob, Catherine and Zoe
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.
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
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
Bibliography 351
Index 373
Table of Cases
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
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
United States—Measures Concerning the Importation, Marketing and Sale of Tuna and
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
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
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
United States—Measures Concerning the Importation, Marketing and Sale of Tuna and
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
United States—Measures Concerning the Importation, Marketing and Sale of Tuna and
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
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)
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
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
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
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
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)
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
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.
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