This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.
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Duncan French and Louis J. Kotzé
Enabling Developing Countries
Chapter 1 provides a conceptual background on the WTO DSU participation benefits, the participation challenges that developing countries face at WTO DSU, and how these challenges can be overcome. In doing so, it outlines various capacity-building solutions that can be employed at the international and domestic levels, with a special focus on strategies that can be employed at the domestic level. The focus of this chapter is to provide an overview of how disputes can be handled effectively at the domestic level in order to improve the performance and participation of developing countries at WTO DSU.
An Institutional Critique
Frank H. Stephen
Chapter 1 sets the scene for the book. It discusses the reasons for the interest in the relationship between the law and economic development beginning with an outline of theories of development. The theory of development currently favoured by multilateral development agencies such as the World Bank is one of market-led development which emphasizes the role of the financial sector. Drawing on an analysis of the reasons why the Law and Development Movement of the 1960s and 1970s failed, criteria by which theories of law and the legal system’s role in development should be evaluated are identified. It is argued that a theory based on New Institutional Economics can satisfy these criteria.
Ed Couzens, Alexander Paterson and Sophie Riley
This chapter begins with an explanation of the various threats facing, first, marine biodiversity and, second, biodiversity in forests. Both suffer from numerous threats and from the increased cumulative impact of these threats. The chapter then considers the legal framework for governance of marine biodiversity, explaining that there have been four major documents or instruments which have driven this legal development more than have any others: Huig de Groot’s pamphlet Mare Liberum, published in 1609; the judgment in 1898 of the arbitral tribunal in the Bering Sea Fur Seals Arbitration; the Proclamation by US President Truman in 1945 of a ‘Policy with Respect to Coastal Fisheries in Certain Areas of the High Seas’; and finally the United Nations Convention on the Law of the Sea (UNCLOS) (adopted 1982, entered into force 1994). A fifth may soon be adopted – if current efforts toward a global convention on the protection of biodiversity in areas beyond national jurisdiction are successful. In addition to these, there are hundreds of relevant international instruments, of global, regional and bilateral scope. In contrast, it is explained, there is little international regulation of forests, with many of the most relevant instruments being of a non-binding nature, such as the Forest Principles of 1992. In the face of this absence of regulatory instruments, recourse must be had to instruments of a more general nature. In conclusion, similarities and differences are highlighted between the regulatory regimes for forests and the marine environment, and it is noted that while one is arguably over-, and the other under-, regulated, neither is having the desired effect, and biodiversity is declining in both. That neither approach is working effectively is instructive, and a topic worth further study.
International Economic Law Perspectives
Edited by Celine Tan and Julio Faundez
International Economic Law Perspectives
Celine Tan and Julio Faundez
The current economic and ecological climate calls for a reappraisal of the international legal and political framework governing natural resources, defined broadly to include materials and organisms naturally occurring in the environment, such as water, mineral and fossil fuels, and cultivated resources, such as food crops, both renewable and exhaustible. This reappraisal is urgent because the governance and management of natural resources have formed a pivotal backdrop to the evolution of international economic law in the post-war period and have been critical components of the process of economic globalization. Contributors to this collection explore the different dimensions of natural resource governance in the contemporary economic, political and legal landscape. They reflect upon and address the different aspects of the conflicts and contradictions arising at the intersection between international economic law, sustainable development and other areas of international law, notably human rights law and environmental law.
Bridget M. Hutter
This chapter outlines some of the most prominent environmental issues we face, including changes in our understandings of environmental risks, uncertainties and damage and the inequalities attaching to them. It discusses strategies for managing these risks, focusing in particular on risk and resilience perspectives and the ways in which they relate to environmental law. The chapter introduces the organisation of the book around major themes such as variable perspectives on risk regulation; the compatibility of law with notions of risk and resilience; transnational efforts to manage environmental risks; and the difficulties associated with managing inequalities within and between countries. It concludes with an introduction to some of the emerging governance issues generated by these debates.