POSTPONED - International Regulatory Disputes, Interstitial Rubrics and Global Governance - Caroline Foster
Tue 5 May 2020
*** This event has been postponed to a later date ***
The Edinburgh Centre for International and Global Law presents
International Regulatory Disputes, Interstitial Rubrics and Global Governance
About the seminar
This presentation draws on work towards a book contracted for publication in 2020/2021 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 paper addresses the handling of regulatory disputes across international law, focussing on international environmental cases. The work looks at disputes in the International Court of Justice and in 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.
Eschewing the notion, at least as a starting point, that international adjudication of regulatory disputes involves ‘judicial review’, the paper instead adopts a public international law perspective questioning reliance on the exogenous language of ‘standards of review’. Instead the paper 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 paper considers the modes of interpretation being employed, identifies emerging patterns in the products of this interpretation, and reassesses the function being performed by international courts and tribunals in the global legal or constitutional order.
Importantly, we find that the global administrative law that is gradually emerging through the adjudication of regulatory disputes embraces formulae or 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 rubrics for applying more familiar concepts such as necessity, rationality and reasonableness in the exercise of regulatory powers.
The paper offers a defence of the necessarily creative role of international courts and tribunals in the development of these interstitial rubrics, 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 reveal the need for greater public deliberation on this emerging global administrative law. At the same time, theory on legitimate authority may itself require to be revisited in order better to recognise the constitutionalising dynamics inherent in the management of plurality and the ways in which twentieth concepts of sovereignty are necessarily finally undermined.
About the speaker
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).
This event is free and open to all. No registration necessary.