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Sam Adelman

This chapter analyses tropical forests as objects of neoliberal environmental governmentality regimes which combine a range of discourses, rationalities and techniques and legal regimes with the aim of conserving them as sources of livelihoods and carbon sinks by treating them as sources of profit best managed by market forces. The chapter discusses the discourses of green governmentality and ecological modernization and the degree to which technology enables forests to be subject to surveillance, monitored and measured and their inhabitants subjected to market discipline under REDD+ regime. It examines indigenous rights and the unexpected inclusion of REDD+ as a standalone Article in the Paris Agreement. A discussion of the vexed relationship between international environmental law and neoliberal environmental governmentality is discussed provides the basis for the conclusion that conflicting principles and inadequate enforcement mechanisms limit the efficacy of international environmental law and suggest that effective forest governance which safeguards the interests of forest dwellers ultimately depends as much on political will as legal regulation. Keywords: climate change; green governmentality; indigenous peoples; international environmental law; REDD+;sustainable development; tropical forests

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Sustainable chemical regulation in a global environment

International Economic Law Perspectives

Sharron McEldowney

The globalization and unintended impacts of chemicals sets substantial challenges for sustainable development and the protection of natural resources such as land and water. Currently, there are three key chemical Conventions: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal which came into force in 1992; the 1993 Rotterdam Convention on Trade in Dangerous Chemicals; and the Stockholm Convention on Persistent Organic Pollutants (POPs) (2004). These Conventions have as common features a mechanism for assessment of chemical safety, a process for the addition of new chemicals to a list of controlled substances and capacity-building in developed countries. However, they cover only a small fraction of the chemicals manufactured and traded across the world. Defining effective regulation of chemicals is an on-going debate that has the potential to have a significant impact on vested commercial and political interests. A sustainable chemical industry should take account of evidence-based standards and through legal mechanisms adopt long-term precautionary evaluations rather than short-term market-driven decisions. It is argued in this chapter that effective international chemical regulation in the future will come from the adoption of sound chemical management and corporate social responsibility, but it recognizes that this will face the challenge of economic disparity between countries and the potential export of regulatory risk from big chemical conglomerates to poorly regulated jurisdictions. Keywords: chemicals regulation; international environmental law; corporate social responsibility; precautionary approach; sustainable development; transboundary chemical and hazardous waste regulation

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Situating the Amazon in world politics

International Economic Law Perspectives

Manuela Lavinas Picq

This chapter proposes Amazonia as a site to think international politics and law. The region is largely invisible in studies of the international yet its experiences are global. The chapter presents international dynamics at play in Amazonia at different historical moments to show how this periphery has contributed to forging international practices and norms. In particular, the Amazon’s absence from the study of international politics speaks about the larger inequality in processes of knowledge production. Serious engagements with Amazonia are one way to invite a plurality of worlds in the production of theories, disrupting global divisions of labor in knowledge production. Key words: Amazonia, coloniality, core-periphery, international relations, knowledge production, state-centrism

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John McEldowney

China offers an important case study on the changing role of law in the protection of natural resources within a developing economy. In the last decade, China has experienced rapid economic growth with a market-driven global influence on the Chinese economy, the second-largest world economy. China’s achievements have been accomplished at a high environmental cost with serious implications for the environment through pollution and the exploitation of natural resources. Faced with severe environmental pollution, public unrest and international pressure, in April 2014 China introduced a new, and in theory much tougher, Environmental Protection Law 2014. The new law for the first time sets penalties for polluters and watchdogs alike that are expected to conform to a tough new regime and greater transparency. Citizen empowerment is intended to ensure that the new law is made effective. Sustainable development is expected to accompany economic development. This chapter provides an initial evaluation of the new Environmental Protection Law that was implemented on 1 January 2015. While it is too soon to calculate the likely success of the new law, it is possible to outline the main provisions of the law and the significance of the new law as the severity of China’s environmental problems is becoming more apparent. Keywords: China; economic growth; environmental protection; governance; international environmental law; natural resources; pollution control

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Celine Tan

This chapter explores the implications of political risk insurance (PRI) in the regulation and governance of natural resources sectors in developing countries. Operating in a hybrid public-private sphere, PRI arrangements involve a more complex web of contractual and non-contractual relations than commercial insurance products and parties to such arrangements are inserted into a much more intricate framework of legal and political governance, with correspondingly broader international and domestic implications. The chapter argues that PRI represents a form of government rationality that provides a framework for organizing and regulating the behaviour of actors involved in natural resource investments in developing countries. In natural resources projects where tensions regularly exist between the interests of the foreign investor, the host state and local communities, PRI arrangements can reframe the terms of engagement between these various stakeholders and redefine the host state’s engagement with the broader international community. Key words: community safeguards; governance; governmentality; international financial institutions; international investment law; natural resources; political risk insurance

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Claire Buggenhoudt

During the last few decades, trans-border investment has steadily grown. The increase in foreign investment has led to a significant rise in disputes between foreign private investors and host states, especially in the area of natural resource exploitation. Furthermore, foreign investors increasingly bring these disputes to international arbitration mechanisms. By opting for international arbitration between states and private parties, rather than domestic judicial mechanisms, investment treaties aim to counterbalance the legislative power that the host state has over foreign investors. Despite its promises of impartiality and independence, this type of arbitration is often criticized because it seems to constrain the state’s power to protect public interest values such as environmental protection. The reasoning underlying this critique is the arbitrators’ strong reliance on legal principles developed in the context of commercial dispute settlement. The use of commercial dispute settlement techniques allegedly keeps the arbitrators from considering the wider interests of society in their decisions. To examine how investment tribunals deal with conflicts between the protection of foreign investors and the state’s power to pursue sustainable development goals, this Chapter highlights the role of one public interest, namely environmental sustainability, in (mainly) ICSID arbitrations that are relevant for disputes on natural resources. The interpretation of two types of international investment provisions is studied. The first section studies the influence of public interest policy objectives on the interpretation of provisions that include specific protection standards such as non-discrimination. The second section examines the interpretation of exception clauses in international investment agreements, which allow inconsistent measures if they are necessary to protect important public interest concerns. The study shows that investment tribunals are willing to take account of public interests through a broad interpretation of protection standards and the use of a proportionality test to review the suitability of public interest measures. The use of proportionality balancing is, however, controversial in this context because it is hard to distil which standard of review is used by investment tribunals; this leads to considerable uncertainty regarding the right of states to regulate public interest matters. Keywords: exception cluases; investment agreements; investment protection standards ; investor-state arbitration; proportionality; public interest policy

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Preface

International Economic Law Perspectives

Edited by Celine Tan and Julio Faundez

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Natural Resources and Sustainable Development

International Economic Law Perspectives

Edited by Celine Tan and Julio Faundez

Examining the law, regulation and governance of natural resources, this timely work addresses the conflicts and contradictions arising at the intersection between international economic law, sustainable development and other areas of international law, most notably human rights law and environmental law. Bringing together a collection of legal and policy expertise from a range of academic and practitioner perspectives, this book will appeal to scholars of law, political science, international relations, political economy and development studies.
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Fiona Smith

Natural resources are critical to global value chains as minerals, good climate and fertile soil are commonly required for the beginning of the chain, with the consequence that any interruption in their supply threatens the chain’s continued integrity. Trade in such resources provides a valuable source of income for resource-rich states. Yet, exploitation of natural resources can result in their exhaustion and biodiversity loss, while their extraction can lead to environmental damage and human rights abuses, with the result that any positive contribution to sustainable development for resource-rich states is quickly undermined. Effective regulation is critical to maximize benefits and minimize potential harm. The WTO’s rules seem ideally suited to allow the state to impose measures that militate against the over-exploitation of the resource by corporations, whilst simultaneously ensuring that regulation does not unnecessarily impede the flow of resources within the value chain. However, this chapter will show that applying the WTO’s rules to natural resource use in global value chains presents both substantive and normative challenges.

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David Ong

This chapter will examine a specific aspect within a range of continuing legal issues arising from the non-compliance of environmental protection standards by private transnational economic actors operating beyond the national jurisdiction from which they originate. The focus here is on litigation within the ‘home’ state jurisdictions of multinational oil companies for the alleged harmful effects of their activities conducted within ‘host’ state jurisdictions abroad. This ‘home’ state litigation against multinational companies on behalf of the victims of alleged pollution by these companies when they operate in the ‘host’ states of these victims will be examined in terms of their viability from both legal and practical perspectives. Key words: Multinational Oil Companies; Pollution Damage Claims; ‘Home’ State Jurisdiction; Alien Tort Statute; Brussels Regulation; Compensation