Since the decision of the International Court of Justice in LaGrand (Germany v United States of America), the law of provisional measures has expanded dramatically both in terms of the volume of relevant decisions and the complexity of their reasoning. Provisional Measures before International Courts and Tribunals seeks to describe and evaluate this expansion, and to undertake a comparative analysis of provisional measures jurisprudence in a range of significant international courts and tribunals so as to situate interim relief in the wider procedure of those adjudicative bodies. The result is the first comprehensive examination of the law of provisional measures in over a decade, and the first to compare investor-state arbitration jurisprudence with more traditional inter-state courts and tribunals.

Provisional Measures before International Courts and Tribunals

Prevention is recognized as a cornerstone of international environmental law, but this principle remains abstract and elusive in terms of exactly what is required of states to prevent environmental harm. In this illuminating work, Leslie-Anne Duvic-Paoli addresses this issue by offering a systematic, comprehensive assessment in which she clarifies the rationale, content, and scope of the prevention principle while also placing it in a wider legal context. The book offers a detailed analysis of treaty law, custom codification works, and case law before culminating in a conceptualization of prevention based on three definitional traits: 1. Its anticipatory rationale; 2. Its due diligence content; and 3. Its wide spatial scope to protect the environment as a whole. This book should be read by anyone seeking to understand the evolving principle of prevention in international environmental law, and how it increasingly shares common ground with reparation in the arena of compliance control.

The Prevention Principle in International Environmental Law

The Court of Justice of the European Union characterizes the Union as a Rechtsunion: a law-governed union. The conception of “the law” in Article 19 paragraph 1 of the Treaty on European Union transcends the Treaties, according to the Vice-President of the Court of Justice, Koen Lenaerts. This thesis demonstrates with reference to the work of Georg Jellinek that the Union is a non-sovereign state and, with reference to the work of Eugen Ehrlich in particular, that the state-based perception of law is a misperception. Not all production of law is reserved to the state and not all law is state-recognized law. There is extra-state law. It has been alleged that the Court of Justice of the European Union has had “a free law attitude”. The author discusses the free law doctrine developed at the beginning of the twentieth century and has made literal translations of writings in German, French and Italian by the main representatives of the free law movement. The free law doctrine provides a descriptive framework for the case-law of courts. The author describes the creation by the Court of Justice of four constitutional principles of Union law through its case-law. He concludes that every court is, to quote Hermann Kantorowicz, praeter legem law-creatively active and has, in that sense, a free law attitude. The decisions of judges are often volitional decisions. How the law will be applied should be predictable but volitional decisions, because they are unpredictable, are inconsistent with the principle of legal certainty. In the Union and its member states the judiciary and not the statute or “the law” is pre-eminent. The author suggests how the concept of law should be defined in a material Rechtsunion. He argues that societal legal norms could be provided with an appropriate position consistent with the principle of legal certainty by making the validity of a societal legal norm contingent on its material lawfulness.

Law in a law-governed union (Recht in einer Rechtsunion) : the Court of Justice of the European Union and the free law doctrine

A subject relevant to the governance of water resources and public services is the effect that international trade and investment agreements may have on national capacities to manage natural resources and to regulate public services. As a consequence of globalization, many public services are provided and water rights held by companies within foreign investment protection systems or special conflict resolution regimes, which means that external jurisdictions can intervene in local matters. These agreements, which override national laws, restrict the power of governments to act in the public interest and in that of local communities. The region has yet to assess the consequences that international investment agreements may have on the economic, social and environmental sustainability and efficiency of natural resources utilization and provision of public services. Such an assessment is necessary when formulating public policies, adopting natural resources legislation and regulatory frameworks for public services, granting water rights and wastewater discharge permits, and entering into contracts related to economic activities in which water is an input or end product. This paper is a first step in this direction. It summarizes the main issues raised by Mann (2006a);, Hantke-Domas (2005); and Barraguirre (2005);, and at the same time expands on some of them. This study also draws on the research done by Agua Sustentable of Bolivia, the International Institute for Sustainable Development (IISD); and the International Development Research Centre (IDRC); of Canada, the Water Law and Indigenous Rights (WALIR); project (ECLAC/The Netherlands, University of Wageningen);, and the Forum for Democracy and Trade of the United States.

https://archivo.cepal.org/pdfs/Waterguide/LCL2827e.pdf

Revisiting privatization, foreign investment, international arbitration and water

Introduction 1. Practical reason and private law 2. The architecture of property 3. The possibility of private property 4. Property from the inside 5. Property and charity 6. Abuse of rights 7. The nature of property rights 8. The contours of property rights 9. Settling property rights in law.

Property and Practical Reason

The theory of the abuse of rights is one which has been rejected by our law, with the result that the ancient brocard ‘ dura lex sed lex ’ finds its most vivid illustration in the present-day decisions of the Anglo-American Courts. The absolutist view of rights which is a feature of the Common Law was summed up by Lord Macnaghten in trenchant language when he said in Mayor of Bradford v. Pickles that although Mr. Pickles's conduct in wilfully depriving his fellow townsmen of part of their water supply might be ‘shocking to a moral philosopher’ there was nothing in the law of England which could stop him from being as ‘churlish, selfish and grasping’ as it was possible for a man to be. In other words our law has not hesitated to place the seal of its approval upon a theory of the extent of individual rights which can only be described as the consecration of the spirit of unrestricted egoism.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/B8E92D6778E35377614E6CE371B60C22/S0008197300128521a.pdf/div-class-title-abuse-of-rights-div.pdf

H. C. Gutterridge

Papers

Abuse of Rights