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John B. Welfield and Le Thuy Trang

Interstate conflict, in the view of one-third of the global decision-makers and experts assembled to compile the World Economic Forum 2015 Global Risks Report, was the most probable serious danger facing the East Asia-Pacific region over the coming decade.1 A Pew Research Center global opinion poll conducted in the spring of 2014 found that people in eight of the 11 Asian countries surveyed expressed fears about possible military conflict over territorial disputes involving the People’s Republic of China and its neighbors. In China itself, more than six in every ten citizens expressed similar concerns. Two-thirds of Americans in 2014 also feared that intensifying territorial disputes between China and its neighbors could spark an armed conflict.2 Although the World Economic Forum 2017 Global Risks Report considered such conflict as a decreasing risk in terms of likelihood and impact,3 majorities in China, Japan and several other East Asian nations remained concerned about territorial tensions and the strategic drama being played out between the United States and China on land and at sea across the region had begun to fuel fears that the “Pacific century” might be shattered by a new Pacific war.4 For better or for worse, Southeast Asia, the region which has given birth to the most vigorous efforts to construct a regional security architecture designed to ensure long-term peace and stability in Asia and the wider Pacific Basin, is today confronted by a series of intractable problems that may well constitute the greatest tests it has faced since the end of the Cold War. Much has been said about the significance of the South China Sea for the security and development of the Indo-Pacific. This sea offers the shortest route from the Pacific Ocean to the Indian Ocean. About half of the world’s commerce, half of global liquefied natural gas and a third of global crude oil transit through this body of water each year.5 Two-fifths of the world’s tuna are born in the South China Sea, contributing to a multibillion-dollar fisheries industry.6 These statistics, oft-cited, are just a few indicators of the South China Sea’s importance to the region and the world at large. A durable regional security system that can deliver lasting stability and prosperity for the Indo-Pacific cannot be constructed in the absence of a smoothly functioning regional maritime order in this critical area. Yet this body of water, blessed with so many valuable resources and crisscrossed by a network of vital sea-lanes, has become the home to some of the most intractable territorial disputes in Asia and a stage for intensifying great power strategic competition. The longstanding territorial and maritime disputes simmering in the South China Sea and the machinations of great powers have been slowing down the momentum for regional cooperation and frustrating attempts to forge a robust and mutually beneficial security architecture. There is also another troubling dimension of very great significance. While the tempo of regional cooperation has slackened, the rate at which the South China Sea marine environment is deteriorating has accelerated. Forty percent of the South China Sea’s fish stocks have already been exhausted and, according to the United Nations Food and Agriculture Organization, most fish resources in the western part of the South China Sea have been exploited or overexploited.7 Meanwhile, 70 percent of the South China Sea’s coral reefs are reported to be in poor or only fair condition.8 Put simply, while the challenges to the South China Sea marine environment are growing, the capacity of regional mechanisms to effectively address those challenges has been undermined or severely constrained.

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Duncan French and Louis J. Kotzé

This chapter provides the context, a broad introduction and the essence of each of the chapters in the book.

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Niko Soininen

Rule of law is a Sustainable Development Goal (SDG) seeking to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels (SDG 16). It enjoys wide global support, and within the United Nations system the rule of law is considered paramount for achieving other sustainable development goals, such as the rights to water, food, and energy. While there is much merit to this view, this chapter argues that the rule of law may at times be the single biggest obstacle for achieving the other SDGs. The chapter starts by highlighting the main rule of law theories from which SDG 16 draws, namely formal, procedural and substantive. All three theories require different kinds of certainty that is at odds with the uncertainty of the socio-ecological ‘real’ world. This uncertainty is caused mainly by the lack of scientific data and understanding of biological systems, economic and social risks, and the dynamic and complex nature of socio-ecological systems. If science cannot be certain of how the socio-ecological world operates or will operate, neither can the (rule of) law that seeks to regulate the human–environment interface. The chapter concludes by discussing two categories of legal mechanisms that may be used to reconcile the (rule of law’s) need for certainty, and the uncertainty of the socio-ecological world. In the first line of inquiry it suggests that environmental regulations should be designed to alleviate scientific uncertainty by being adaptive. In the second line of inquiry it suggests courts are required to exercise their discretion in evaluating evidence and interpreting the law. These two mechanisms to tackle scientific uncertainty require major concessions from the rule of law but they need not be its demise. The rule of law trickles down to questions like how well and openly the decisions are reasoned.

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David Freestone

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Amrita Bahri

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.

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Abbreviations and acronyms

A Constitutional Political Economy Approach

John M. Mbaku

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Edited by Ed Couzens, Alexander Paterson, Sophie Riley and Yanti Fristikawati

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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.

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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.

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Edited by Celine Tan and Julio Faundez