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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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Acknowledgments

The Role of Law

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

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Preface

International Economic Law Perspectives

Edited by Celine Tan and Julio Faundez

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Introduction

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.

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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.

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Edited by Bridget M. Hutter

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William Schabas

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Joanna R. Quinn

The chapter traces the development of transitional justice (TJ), focusing on four of the most widely used instruments of TJ (criminal prosecutions, reparations, amnesty and truth-telling). It then outlines the development of TJ approaches and instruments around the world. Those same four commonly used instruments are utilized as a means of comparing experiences across continents. Finally, the chapter considers the ‘growing pains’ of the scholarship and practice of transitional justice. The questions raised have arisen because the field has matured to the extent that critical questions can and must be asked. Six of these are considered: deepening international engagement; the effect of contagion; simultaneity and the problems it brings; the call to address economic, social and cultural rights; the limits of what transitional justice can actually address; and the parameters of the transition in question. Origins and development of transitional justice; Europe; Latin America; Sub-Saharan Africa; Asia.

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Integration through law

A Critical Assessment of the EU-SADC Economic Partnership Agreement

Clair Gammage

Chapter 1 presents the main epistemological framework and ontological claims of the book and asserts that regions should be understood primarily as legal regimes. Through the marriage of material power, ideational forces and institutions this book aims to promote an understanding of regions as fundamentally legal regimes. The law generates an assumption of the ‘right’ and ‘just’ way to live, guiding behaviour of institutions and of people through legal codification of norms. Legal philosophers are concerned with the validity of legal norms, their claim to correctness, and to understanding the reasoning and logic of the legal system while sociologically informed analyses of law seek to reveal the practical or empirically valid nature of legal norms in relation to other spheres of action, such as politics and the economy. Using the discourse theory of law, this book proposes that legitimate law is that which is normatively perceived to provide ‘good’ reasons for action. This book aims to demonstrate how legitimate law can emerge from a discursive and participative process of deliberation. It will be argued that the EPAs have created discursive spaces for deliberation albeit the inclusion of non-state actors in that process across the regional groupings has been limited. As such, the extent to which the EPAs constitute legitimate legal regimes in a Habermasian sense is questionable.