Boundary-Work and Dynamics of Exclusion by Law:International Investment Law as a Case Study

This chapter explores the thesis that a powerful way to sustain inequalities and realize exclusion is through the construction of ideational boundaries. It is argued that doctrinal legal method can function as a means to crystallize boundaries and (re-)produce exclusion. Critical legal scholarship comes to the rescue in identifying dynamics of exclusion. Within the realm of critical approaches to law, critique of ideology and Third World Approaches to International Law (TWAIL) appear particularly illuminating. It is further contended that critical legal scholarship, by means of exposing contradictions and eroding boundaries, can be instrumental in defying exclusion in practice. The regime of International Investment Law (IIL) is taken as a case study to show how boundaries can be (and have been) erected in ways that reproduce relations of domination. IIL is an illustrative case as other legal domains rest on similarly constructed boundaries (eg between the economic and the non-economic). The IIL case also shows how critical legal perspectives, by breaking free of doctrinal legal analysis, can contribute to change, possibly paving the way to transformative change in practice

On how the ECT fuels the fossil fuel economy:<i>Rockhopper v Italy</i> as a case study

The central thesis of this article is that the Energy Charter Treaty can be deployed to expand the fossil fuel industry’s rights and contextually counter democratic forces that animate the ecological transition. More specifically, the article shows the entanglement between the suppression of ecological democracy and the expansion of fossil rights. To offer a more granular understanding of how the Energy Charter Treaty empowers the fossil industry, this article zooms in on the case of Rockhopper v Italy. The case was launched in 2017 by the UK company Rockhopper against the Italian Republic because the latter denied a production concession for offshore oil drilling off the coast of Italy. After a long process of resistance from local communities, in 2016, the Italian government adopted a law of general applicability banning offshore drilling within 12 nautical miles of the coast. Drawing on political theory, this article conceptualises people’s successful forms of resistance to the oil extractivist project as ecological democracy. By unpacking the main facts underpinning this case and the legal reasoning in the award, the article shows how the Rockhopper award has bestowed new property rights on the fossil fuel investor while contextually compressing democratic spaces vital for the ecological transition..</p

Floating Degassing on Dutch River:International Rights and Obligations of the Dutch State

Uncontrolled degassing is the process of letting any lingering vapours in the tanks of ships carrying oil or certain liquid chemicals into the open air. Floating degassing happens on a regular basis in an uncontrolled way in Dutch rivers. The official position of successive Dutch governments has been that the international legal framework on inland navigation does not allow individual states to regulate floating degassing unilaterally. According to various Minister for Water and Infrastructure the Netherlands should wait until the 2017 Amendments to the Convention on the Collection, Deposit, and Reception of Waste Generated During Navigation on the Rhine and Other Inland Waterways (CDNI) are ratified by all member states and enter into force for implementing a ban on floating degassing on Dutch inland waterways. This article examines the applicable international legal framework on floating degassing. It finds that the international legal framework does offer governments adequate policy space to take unilateral domestic actions to regulate floating degassing to protect public health and the environment. The international legal agreements referred to by the Dutch government to justify its inability to regulate contain no specific provisions prohibiting states to regulate floating degassing. Even more, existing international legal rules on degassing include specific provisions granting states the right to regulate to protect public health and the environment. The article further shows that there are valid legal arguments under international human rights law for the claim that the Government is actually required to regulate floating degassing to protect the right to life and the respect for private and family life of its residents, as guaranteed by the European Convention on Human Rights

The global financial regulatory system and the rule of law : An appraisal of the regulatory process under Basel III

The efficacy of the existing international financial regulation and adoption of an institutionalised form of regulation are among the global financial governance issues which have been well addressed by scholars in the field. The less investigated but directly related and worth considering issue is the impact of the contemporary global financial governance system on fundamental values like the rule of law. This article examines this less explored yet worth investigating issue with a focus on Basel III, namely, how far does the regulatory process under Basel III, as it stands today, inhibit or foster the rule of law. Soft law, informal groups of this regulatory network and the regulatory process are analyzed in the light of the relevant elements of the rule of law. The article shows that the accountability deficit and lack of inclusive governance in the Basel III regulatory system have inhibited the advancement of the rule of law which should have been fostered to build legitimacy in this regulatory system