Overview

Global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and a revised conception of sovereignty in an increasingly pluralistic global legal era. However, the legitimacy of the resulting 'standards-enriched' international law remains open to question. International courts and tribunals should not be the only fora in which these standards are elaborated, and many challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality stricto sensu in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law's legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

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9780198810551

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This important book by Caroline E. Foster offers an innovative approach to the question of how to balance international and domestic legal authority when it comes to the regulation of issues of common interest ... a valuable tool * Chiara Ragni, International Community Law Review * Caroline Foster's book constitutes an outstanding contribution to the search for global regulatory standards to be applied in international adjudication, in particular in the environmental and health fields, but with potential much wider application - it is a model of careful analysis, original thinking and thoughtful considerations on the further development of legitimate standards of international law in these fields. * Alfred Soons, Utrecht University * This book is indispensable for academics, practitioners, adjudicators, governmental advisors and staffs of international courts and tribunals who need to navigate through the intricacies of emerging global regulatory standards in public international law. This work will be a must-read for those requiring thorough assistance in high-intensity disputes on domestic environmental and health policies and for those interested in empirical studies on the theory of legitimate authority in plural legal systems. * Prof Gabrielle Marceau, Senior Counsellor, World Trade Organization * In this theoretically rich and empirically grounded book, Caroline Foster makes a major contribution to our understanding of the emerging regulatory structure of international law. Drawing on case studies across environmental, trade and investment disputes, this book provides a thorough and convincing account of the development, content and role of global regulatory standards. By situating her analysis in debates respecting the nature of authority and legitimacy within an increasingly interwoven, yet pluralistic, international society, Foster provides important insight into the legal principles that mediate international regulatory cooperation. This book can be profitably read by legal and global governance scholars, practitioners, and indeed, anyone who wants to understand the evolving role of international law in structuring global regulatory interactions. * Neil Craik, Professor of Law, Balsillie School of International Affairs, University of Waterloo, Canada * States' sovereignty is not absolute; but where are the limits and who sets them? This book shows that the freedom of States to regulate issues of common interest, such as environmental and health protection, is more constrained than conventional doctrine might suggest. International courts and tribunals have developed standards such as regulatory coherence, due regard and due diligence, which amount to powerful legal tools to effectively ring-fence states' sovereignty. Caroline Foster's brilliant analysis of the practice of international courts in regulatory standard-setting is a must-read for everyone interested in the role and impact of international courts, and in the contemporary conception of sovereignty. * Christina Voigt, Department of Public and International Law, University of Oslo * This book brings conceptual clarity to a complex phenomenon that had hitherto been treated in a scattered and partial manner. Through a tight analysis of a thick body of case law from a diverse group of international judicial bodies, it distils three standards, regulatory coherence, due regard, and due diligence, which constrain the acceptability of domestic regulatory measures in the fields of health and environmental protection. Significantly, these standards are derived from a combined reading of substantive provisions rather than extrapolated from domestic judicial review to international law, as has become commonplace. As an intellectual endeavour, the road taken by Foster is much more demanding, but the results much more illuminating. * Jorge E Vinuales, Harold Samuel Chair of Law and Environmental Policy, University of Cambridge * This remarkable book offers detailed comparative analysis of some of the most cutting-edge disputes in different international adjudicatory settings that involve international standards shaping State regulatory action concerning public health and environmental protection. It shows that international courts and tribunals actively develop these standards, and in essence make international law, and explores the extent to which principles of public law can provide guidance for more legitimacy in global regulatory governance. * Stephan W Schill, Faculty of Law, University of Amsterdam * The emergence of international regulatory standards is a topic of considerable interest and importance. This book provides valuable insights into the development of such standards concerning regulatory coherence, due regard and due diligence and the role of international adjudication in shaping these norms in cases concerning the environment and health. * Paul Craig, Emeritus Professor of English Law, St John's College, Oxford * This valuable work sets this important subject in the context of the case law of the International Court of Justice and other international tribunals. * Sir Christopher Greenwood GBE, CMG, QC * In our interdependent world the regulation by states of a range of activities may carry very significant international implications. This important work examines the ways in which state measures on environmental, health and other topics have attracted the attention of international law, and how international courts have identified a body of standards that mediate the tension between state autonomy and international legal disciplines. * Tim Stephens, Professor of International Law, The University of Sydney Law School *

Caroline Foster's book constitutes an outstanding contribution to the search for global regulatory standards to be applied in international adjudication, in particular in the environmental and health fields, but with potential much wider application - it is a model of careful analysis, original thinking and thoughtful considerations on the further development of legitimate standards of international law in these fields. * Alfred Soons, Utrecht University * This book is indispensable for academics, practitioners, adjudicators, governmental advisors and staffs of international courts and tribunals who need to navigate through the intricacies of emerging global regulatory standards in public international law. This work will be a must-read for those requiring thorough assistance in high-intensity disputes on domestic environmental and health policies and for those interested in empirical studies on the theory of legitimate authority in plural legal systems. * Prof Gabrielle Marceau, Senior Counsellor, World Trade Organization * In this theoretically rich and empirically grounded book, Caroline Foster makes a major contribution to our understanding of the emerging regulatory structure of international law. Drawing on case studies across environmental, trade and investment disputes, this book provides a thorough and convincing account of the development, content and role of global regulatory standards. By situating her analysis in debates respecting the nature of authority and legitimacy within an increasingly interwoven, yet pluralistic, international society, Foster provides important insight into the legal principles that mediate international regulatory cooperation. This book can be profitably read by legal and global governance scholars, practitioners, and indeed, anyone who wants to understand the evolving role of international law in structuring global regulatory interactions. * Neil Craik, Professor of Law, Balsillie School of International Affairs, University of Waterloo, Canada * States' sovereignty is not absolute; but where are the limits and who sets them? This book shows that the freedom of States to regulate issues of common interest, such as environmental and health protection, is more constrained than conventional doctrine might suggest. International courts and tribunals have developed standards such as regulatory coherence, due regard and due diligence, which amount to powerful legal tools to effectively ring-fence states' sovereignty. Caroline Foster's brilliant analysis of the practice of international courts in regulatory standard-setting is a must-read for everyone interested in the role and impact of international courts, and in the contemporary conception of sovereignty. * Christina Voigt, Department of Public and International Law, University of Oslo * This book brings conceptual clarity to a complex phenomenon that had hitherto been treated in a scattered and partial manner. Through a tight analysis of a thick body of case law from a diverse group of international judicial bodies, it distils three standards, regulatory coherence, due regard, and due diligence, which constrain the acceptability of domestic regulatory measures in the fields of health and environmental protection. Significantly, these standards are derived from a combined reading of substantive provisions rather than extrapolated from domestic judicial review to international law, as has become commonplace. As an intellectual endeavour, the road taken by Foster is much more demanding, but the results much more illuminating. * Jorge E Vinuales, Harold Samuel Chair of Law and Environmental Policy, University of Cambridge * This remarkable book offers detailed comparative analysis of some of the most cutting-edge disputes in different international adjudicatory settings that involve international standards shaping State regulatory action concerning public health and environmental protection. It shows that international courts and tribunals actively develop these standards, and in essence make international law, and explores the extent to which principles of public law can provide guidance for more legitimacy in global regulatory governance. * Stephan W Schill, Faculty of Law, University of Amsterdam * The emergence of international regulatory standards is a topic of considerable interest and importance. This book provides valuable insights into the development of such standards concerning regulatory coherence, due regard and due diligence and the role of international adjudication in shaping these norms in cases concerning the environment and health. * Paul Craig, Emeritus Professor of English Law, St John's College, Oxford * This valuable work sets this important subject in the context of the case law of the International Court of Justice and other international tribunals. * Sir Christopher Greenwood GBE, CMG, QC * In our interdependent world the regulation by states of a range of activities may carry very significant international implications. This important work examines the ways in which state measures on environmental, health and other topics have attracted the attention of international law, and how international courts have identified a body of standards that mediate the tension between state autonomy and international legal disciplines. * Tim Stephens, Professor of International Law, The University of Sydney Law School *

Author Information

Caroline E. Foster is based at the Faculty of Law at the University of Auckland, New Zealand, participating frequently in international collaborations and publishing regularly in international journals. She serves with the NZ Centre for Environmental Law and on the Editorial Advisory Boards of the NZ Yearbook of International Law and the NZ Journal of Environmental Law.

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