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Issues at Stake, Challenges and Recommendations
Lucky Belder and Helle Porsdam
Anthony F. Lang, Jr. and Antje Wiener
This chapter provides an introduction and framework to the volume. It provides a historical overview of constitutional thought and highlights the four principles of constitutionalism: rule of law, separation of powers, constituent power, and rights. It demonstrates the ways in which this history and these principles are relevant for global constitutionalism. It argues that a practice-based approach to global constitutionalism provides space for contestation of the traditional liberal history and principles of constitutional thought, highlighting new ways in which this idea can be understood and assessed.
Edited by Anna Grear
Kirsten Davies, Sam Adelman, Anna Grear, Catherine Iorns Magallanes, Tom Kerns and S Ravi Rajan
The Declaration on Human Rights and Climate Change responds to the profound crisis of human hierarchies now characterizing the climate crisis. The Declaration, initiated prior to the 2015 COP 21 meeting by scholars from the Global Network for the Study of Human Rights and the Environment (GNHRE), is one of a convergence of initiatives reflecting the need to understand human rights as intrinsically threatened by climate change. This article introduces the Declaration, the necessity for it, its philosophical and legal background and its support by contemporary cases providing evidence of the escalating legal need for such a tool. A key aim of the Declaration is to trace out a potential normative approach for establishing responsibility towards the planet and redressing unevenly distributed vulnerabilities and climate injustices while recognizing that it is vital that respect for human rights should be understood as an indispensable element of any adequate approach to climate change. The Declaration strives to offer a compelling level of ethical appeal, as well as to be legally literate and philosophically rigorous. The drafting process engaged scholars and communities from across the world, prioritized indigenous involvement, and drew on indigenous ontologies and epistemologies. Newer philosophical approaches such as new materialist understandings of lively materiality also informed the drafting process. Accordingly, the language of the Declaration creates space for non-Western ways of seeing and being as well as responding to insights emerging from new scientific understandings of the world.
Peter H Sand
This article begins with an assessment of an elderly wildlife-related treaty, the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973 (CITES), and explains both how the convention was originally designed and how its Parties managed to develop it in innovative ways not envisaged by the original drafters. The article then turns to an assessment of the effectiveness of the convention in the modern world, and how an enforcement regime based on trade embargoes has been developed. This success, at least measured by indicators such as length of time it takes for states subject to sanctions to fall back into compliance, aside, the article then proceeds to question effectiveness as measured by indicators with less ‘high face validity’. Through close analysis of the history of trade embargoes, it is demonstrated that by and large it is developing countries that have been the subjects of sanctions under CITES. In view of recent enforcement issues (illustrated by current whaling in the North Pacific), the article concludes by highlighting the quality of trust which, it is argued, is a critical requirement that must underpin the international regime if there is to be true legitimacy and, ultimately, credibility.
Edited by Ed Couzens and Tim Stephens
Kerryn Anne Brent
The customary law duty to prevent significant transboundary harm and harm to the global commons (‘no-harm’ rule) has developed considerably since it was first enunciated in the 1938/1941 Trail Smelter arbitration. This article reflects on this development and analyses what implications the 2015 Certain Activities case has for existing understandings of the no-harm rule. The International Court of Justice (ICJ)'s judgment provides greater clarity concerning procedural obligations flowing from the no-harm rule by establishing a positive obligation to ascertain risk and a sequence in which procedural obligations arise. However, it raises questions concerning the nature of the substantive obligation under the no-harm rule. Specifically, whether breach of the substantive obligation is subject to establishing that an activity has resulted in significant transboundary harm. The ambiguity in the Certain Activities case highlights the need to further clarify and develop the content of the no-harm rule to better enable it to contribute to the governance of contemporary transboundary and global environmental problems.
Thomas David DuBois
This chapter examines the roots of public welfare in China, spanning the crucial 100 years before the 1949 founding of the People’s Republic, and highlighting the political importance of welfare provision across a range of very different Chinese regimes. Rather than attempting to map the contemporary Western understanding of welfare onto history, it presents Chinese ideas and institutions on their own terms. During the late nineteenth century, well-established traditions of State and private charity provision began to transform in the face of new pressures and opportunities, including the arrival of Christian missionary institutions. In the early twentieth century, China was divided into a number of regimes, including the Republic of China, the Communist-held areas and the Japanese client regime in Manchuria. This political fragmentation caused the welfare tradition to diversify into a number of competing ideologies and strategies. The transformation of welfare provision during this century was driven by a number of interrelated processes: the growing influence of foreign actors and institutions; the formation of legal and legislative frameworks for the rights and responsibilities of welfare providers; and the shift in balance between private and State initiative, and between disaster relief and longer-term programmes of economic development. This history continues to tangibly shape contemporary political and social attitudes towards welfare provision.