PluriCourts Lunch Seminar: Regulatory Sovereignty: Emerging Interstitial Rubrics in Environment, Oceans, Trade and Investment Disputes
Lunch seminar with Caroline E. Foster.
This event will either be held in DJ7227 or online using Zoom if the University buildings have not yet opened.
This presentation draws on work towards a book contracted for publication in early 2021 with Oxford University Press focusing on the role of international adjudicatory bodies in the 21st-century. Drawing on three years of comparative empirical studies and interviews, the book addresses the handling of regulatory disputes across international law, focusing on international environmental cases. The work looks at disputes in the International Court of Justice and at dispute settlement under the Law of the Sea, in the WTO and in investment treaty arbitration. This broad viewpoint facilitates an analysis embracing cases concerning the extent of States’ regulatory obligations as well as their regulatory freedom. The book’s primary enquiry has revolved around the question of how these adjudicatory bodies actively read the law so as to determine the extent of States’ regulatory freedom and regulatory obligations.
The book begins from the understanding that international courts and tribunals set out to base their rulings on the interpretation of States’ substantive obligations. From here the book identifies emerging patterns in the products of this interpretation, considers the modes of interpretation being employed, and reassesses the function being performed by international courts and tribunals in the global legal order. We find that the ‘global administrative law’ that is gradually emerging through the adjudication of regulatory disputes embraces a wide range of formulae or rubrics. International courts and tribunals have identified rubrics of due regard for the rights of others, and due diligence in relation to control of private actors’ extra-jurisdictional activity, as well as sophisticated rubrics for applying more familiar concepts such as necessity, rationality and reasonableness in the exercise of regulatory powers.
The book offers a defence of the necessarily creative role of international courts and tribunals in the development of these interstitial rubrics, by explaining the pressures associated with determining regulatory disputes and exploring the ways in which the characteristics of international adjudicatory process suit it to contribute to these developments. However, theory on legitimate authority in conditions of global legal plurality does indicate the need for greater public deliberation on this emerging global administrative law, particularly in regard to its presuppositions as to the potential reconception of sovereignty. At the same time, our understandings of the management and evolution of co-existing or plural legal orders, here domestic and international law, may need to be updated in order better to recognise the dynamics that may be inherent in the management of plurality, with the important part played by considerations of social and objective legitimacy as co-drivers meriting further investigation.
About Caroline Foster
Associate Professor Caroline Foster’s current research interests include the interface between international economic law and international environmental and health law; and international environmental law with a focus on harm to common spaces and the law on transboundary harm including in the law of the sea and the law relating to Antarctica. Dr. Foster’s articles appear in numerous international journals including the European Journal of International Law, the International and Comparative Law Quarterly, the Journal of International Economic Law and the Journal of International Dispute Settlement. She regularly collaborates internationally and serves on the Editorial Advisory Boards of the New Zealand Yearbook of International Law and the New Zealand Journal of Environmental Law.
Dr. Foster graduated from the Andres Bello Chilean Diplomatic Academy as a foreign diplomat, working as a legal and policy advisor with the New Zealand Ministry of Foreign Affairs from 1992 to 1999 where she advised on a wide range of international legal issues, including United Nations legal issues and the work of the International Law Commission. She served as a New Zealand representative at international negotiations in a number of different areas of international law, and worked at the New Zealand High Commission in London. On the environmental side she worked on the Kyoto Protocol to the UN Framework Convention on Climate Change, and on the relationship between the Cartagena Biosafety Protocol on the safe transfer and handling of living modified organisms and the WTO Agreement on Sanitary and Phytosanitary Measures.
She holds an LLM and PhD from the University of Cambridge, where she took the Whewell Scholarship in International Law in 1997. Her previous monograph Science, Proof and Precaution in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (Cambridge University Press, 2011/2013) was cited by Judges Simma and Al-Khasawneh in the International Court of Justice in the Case Concerning Pulp Mills (Argentina v Uruguay) and by Japan in Whaling in the Antarctic (Australia v Japan).
PluriCourts Lunch Seminars are a forum for pluridisciplinary discussion of core issues relating to international courts and tribunals. PluriCourts scholars or invited speakers present new and ongoing research or comment on current questions. The seminars are open to everyone.