Normative conflicts in international investment law: the case of environmental law

This dissertation investigates the relationship between investment and environmental obligations from the perspective of international investment law. In order to do so, the dissertation will consider how these obligations might enter into conflicts and what tools are available to investment tribunals to solve these normative conflicts. The dissertation analyses in order interpretative techniques, conflict resolution tools available in general international law, as expressed in the Vienna Convention on the Law of Treaties, and finally express clauses in international investment agreements. The dissertation includes the review of some relevant case law arising from investment agreements in investment treaty tribunals, to discover how in practice these conflict resolution tools are applied and to assess their effectiveness. This dissertation places itself squarely within the debate between the unity and the fragmentation of international law; therefore it tackles the issue of normative conflicts resolution in a dispute settlement environment with the view of gauging their value in maintaining the unity of international law and defuse the risk of fragmentation. The dissertation can only conclude that much work remains to be done, including by providing a more comprehensive taxonomy of possible interventions, both on the legal and political sphere.

A regulatory analysis of international climate change regulation

The political challenges impeding the negotiation of a comprehensive multilateral agreement on international climate change have received a great deal of attention. A question that has gone somewhat overlooked is what essential components an effective regulatory scheme to reduce greenhouse gas emissions should contain. The objective of this article is to examine the regulatory architecture of current international arrangements relating to global climate change regulation. A systematic analysis of the structure, substantive composition, and administrative characteristics of the UNFCCC and Kyoto Protocol is undertaken. The analytical standard against which the agreements are examined is whether current international regulatory arrangements satisfy the basic requirements of regulatory coherence. The analysis identifies how the present scheme consists of a complex institutional structure that lacks a substantive regulatory core. The implications of the absence of functional and effective mechanisms to govern greenhouse gas emission reductions are considered in relation to the principles of good regulatory design. This, in turn, provides useful insights into how a better regulatory scheme might be designed.

Deforestation, REDD and international law

International environmental law governing conservation and management of forests has been largely limited to soft-law instruments. Nevertheless, increasing attention has been given to forest issues, most recently in the context of the climate change regime and the reducing emissions from deforestation and degradation (REDD) mechanism. The current law impacting upon the protection of forests and the contribution of emissions from deforestation will be considered in this chapter. The way forward will be explored, including the current options being considered for the post-Kyoto period.

Foundations of International Climate Law : Objectives, principles and methods

This chapter explores the objectives, principle and methods of climate law. The United Nations Framework Convention on Climate Change (UNFCCC) lays the foundations of the international regime by setting out its ultimate objectives in Article 2, the key principles in Article 3, and the methods of the regime in Article 4. The ultimate objective of the regime – to avoid dangerous anthropogenic interference – is examined and assessments of the Intergovernmental Panel on Climate Change (IPCC) are considered when seeking to understand the definition of this concept. The international environmental principles of: state sovereignty and responsibility, preventative action, cooperation, sustainable development, precaution, polluter pays and common but differentiated responsibility are then examined and their incorporation within the international climate regime instruments evaluated. This is followed by an examination of the methods used by the mitigation and adaptation regimes in seeking to achieve the objective of the UNFCCC. Methods of the mitigation regime include: domestic implementation of policies, setting of standards and targets and allocation of rights, use of flexibility mechanisms, and reporting. While it is noted that methods of the adaptation regime are still evolving, the latter includes measures such as impact assessments, national adaptation plans and the provision of funding.

Towards a dignified and sustainable electricity generation sector in Australia : a comparative review of three models

Electricity is the cornerstone of modern life. It is essential to economic stability and growth, jobs and improved living standards. Electricity is also the fundamental ingredient for a dignified life; it is the source of such basic human requirements as cooked food, a comfortable living temperature and essential health care. For these reasons, it is unimaginable that today's economies could function without electricity and the modern energy services that it delivers. Somewhat ironically, however, the current approach to electricity generation also contributes to two of the gravest and most persistent problems threatening the livelihood of humans. These problems are anthropogenic climate change and sustained human poverty. To address these challenges, the global electricity sector must reduce its reliance on fossil fuel sources. In this context, the object of this research is twofold. Initially it is to consider the design of the Renewable Energy (Electricity) Act 2000 (Cth) (Renewable Electricity Act), which represents Australia's primary regulatory approach to increase the production of renewable sourced electricity. This analysis is conducted by reference to the regulatory models that exist in Germany and Great Britain. Within this context, this thesis then evaluates whether the Renewable Electricity Act is designed effectively to contribute to a more sustainable and dignified electricity generation sector in Australia. On the basis of the appraisal of the Renewable Electricity Act, this thesis contends that while certain aspects of the regulatory regime have merit, ultimately its design does not represent an effective and coherent regulatory approach to increase the production of renewable sourced electricity. In this regard, this thesis proposes a number of recommendations to reform the existing regime. These recommendations are not intended to provide instantaneous or simple solutions to the current regulatory regime. Instead, the purpose of these recommendations is to establish the legal foundations for an effective regulatory regime that is designed to increase the production of renewable sourced electricity in Australia in order to contribute to a more sustainable and dignified approach to electricity production.

Legal Reasoning in Environmental Law : a Study of Structure, Form and Language

This book analyses the structure, form and language of a selected number of international and national legal instruments and reviews how an illustrative range of international and national judicial institutions have responded to the issues before them and the processes of legal reasoning engaged by them in reaching their decisions. This involves a very detailed discussion of these primary sources of international and national environmental law with a view to determining their jurisprudential architecture and the processes of reasoning expected of those responsible for implementing these architectural arrangements. This book is concerned not with the effectiveness or the quality of an environmental legal system but only with its jurisprudential characteristics and their associated processes of legal reasoning.

International sentencing law: in search of a justification and coherent framework

An international sentencing jurisprudence is emerging from the decisions by the International Criminal Tribunal for the Former Yugoslavia (ICTY or the Yugoslav tribunal) and the International Criminal Tribunal for Rwanda (ICTR or the Rwanda tribunal) (collectively, 'the tribunals'). This article examines international sentencing law and practice and discusses the justification for the practice. International sentencing law has several objectives. The main goals are reconciliation, deterrence, retribution and rehabilitation. The sentencing inquiry is marked by a high degree of discretion and has resulted in sentencers developing a large amount of aggravating and mitigating considerations, such as being in a position of authority, remorse and good character. It is argued that the current international sentencing approach is flawed - fundamentally so. Most of the stated goals of international sentencing in the form of reconciliation, retribution and rehabilitation are either highly speculative or misguided. The only justification for the practice is general deterrence. This is, however, significantly undermined by the selective and infrequent enforcement of crimes within the jurisdiction of such tribunals. The stated aggravated and mitigating considerations are not valid given that they are not justified by reference to the stated aims of sentencing and only serve to undermine the search for a penalty which is commensurate the serious of the offence. This article suggests a coherent framework for international sentencing policy and practice.

In search of coherent jurisprudence for international criminal law : correlating universal human responsibilities with universal human rights

I. The Evolution of International Criminal Law International criminal justice concerns breaches of international rules entailing the personal criminal liability of individuals (as opposed to the State for which the individuals may act as agents or organs), and presently includes acts such as genocide, torture, crimes against humanity, aggression and terrorism. ... A rule stating: any act of armed conflict which directly causes the death of a civilian is a war crime unless it can be shown that the military advantage gained by the attack outweighs the harm. ... Thus, so far as international criminal law is concerned any act during armed conflict which results in the death or injury to a person who does not pose a direct threat to the life of the accused should be a war crime. ... Pursuant to the Rome Statute and as a matter of customary international law torture is a war crime when performed in the context of an armed conflict, and a crime against humanity when it is part of systematic criminal conduct. ... Torture can also constitute an individual international crime, even where it does not satisfy the criteria of a war crime or crime against humanity. ...

Limitations of market driven sustainability : the case of environmental management systems for food production in Australia

Environmental Management Systems (EMSs) address environmental risks in supply chains and certification of environmental claims. Governments supporting EMSs have encouraged producers to respond to anticipated consumer environmental concerns. Attempts at implementing EMSs have rarely been in direct response to market demand but are usually farmer organisation driven – to forestall increased regulation. In Australia, consumer demand for foods produced to environmentally sustainable standards is minimal because consumers don’t believe these products offer special benefits. EMS implementation is expensive and onerous; and the products require a market premium. Food consumers have difficulty differentiating the terms organic, environmentally-friendly, and sustainably-produced in food labelling.