Capitalism and Freedom

dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historicalbiographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. The volume will be an essential resource for academics and researchers working in the areas of law and religion, transnational law, legal philosophy, and legal history.

Christianity and Global Law

The number of academic writings on international criminal procedure is growing rapidly. Nevertheless, the investigation phase has so far received less attention than the trial phase itself. The importance of investigative actions for the further proceedings is not yet reflected to the full extent in academic writings on international criminal proceedings. This book seeks to cover this gap. Its aim is to examine the existing law and practice of the different international(ised) criminal courts and tribunals with regard to the conduct of investigations in order to identify any (emerging) rules of international criminal procedure. More precisely, it enquires whether, notwithstanding their nature of ‘self-contained regimes’, these institutions have adopted certain common rules. Additionally, it aims to examine the fairness of the law and practice of the different international(ised) criminal courts and tribunals with regard to the conduct of investigations.

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The Investigation Phase in International Criminal Procedure: In Search of Common Rules

The dissertation explores the politics of jurisdiction in international law. In order to do so, it reconstructs jurisdictional projects pursued by scholars and experts particularly in the context of ‘humanity’s law’. The thesis concentrates on (legal) technicalities and argues for the importance to ‘open black boxes’ such as interdisciplinarity, expertise – or jurisdiction. In a first part, it primarily focuses on the (inter)disciplinary dimension of studying the politics of international law by mapping different interdisciplinary projects between International Relations and International Law, and highlighting core topics among critical scholars in both disciplines. In a second part, the dissertation moves then to analyse the concept of jurisdiction in world politics. It situates discussions about jurisdiction within the discourse on the politics of international legal expertise and argues, by means of problematization and historical inquiry, to leave the common notion of jurisdiction in international law (as exclusive and territorial) behind and instead to grasp jurisdiction as non-territorial, post-Cartesian, multidimensional and non-exclusive. This becomes particularly visible in the context of ‘humanity’s law’. Therefore, the dissertation ends with two explorations into the politics of jurisdiction in ‘humanity’s law’: first, it analyses the politics of crimes in international criminal law and how by means of widening the scope of international crimes international legal experts attempt to augment this strand of ‘humanity’s law’; second, it explores how in the broader discourse on humanitarian intervention within and around the United Nations jurisdictional projects expand, through risk-based forms of governance, through time.

From territoriality to universality?: jurisdiction, expertise and the politics of humanity in International Law

In this article, core tenets and claims of the theory of ecologically unequal exchange (EUE) are synthesized. EUE theory postulates a net flow of natural resources from peripheral developing to core industrialized countries through international trade, a situation which undermines the development of the periphery while enhancing that of the core. The key claims and EUE mechanisms are categorized and discussed under three topics: 1) the structure of the capitalist world-economy, 2) monetary valuation, and 3) equity and justice. The treadmill logic of capitalism in which capital extracts ecological resources and release waste in an endless pursuit of profits creates an expansionary dynamic which draws peripheral countries into exploitative market relations. This peripheralization is supported by 'free trade' economic policies, while nation-states and other political-economic institutions such as the WTO and IMF provide the regulations which ensure proper functioning of the system. Monetary valuation caps it by obscuring the inverse relationship between thermodynamics and economics, in which low-entropy energy and materials indispensable in economic production processes are lowly priced while processed goods which have dissipated most of their matter-energy are highly priced, ensuring that biophysical resources and profits accumulates in the industrialized Northern countries. This EUE framework is applied to the EU's Raw Materials Initiative from the vantage point of policy as implicit theory. By challenging mainstream policies and their underlying theories, the EUE perspective demonstrates that alternatives to neoliberal policy prescriptions exist and policy can play a crucial role in bringing about the necessary structural changes.

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Core tenets of the theory of ecologically unequal exchange

\n This article seeks to clarify how the principle of common heritage is being implemented and concretized by the fiscal regime of deep seabed mining. It first explicates the exploitation rationale underlying the common heritage principle. It argues that common heritage is a jurisdictional principle that lays the basis for the international allocation and administration of exploitation rights and, thus, for the effective economic exploitation of seabed minerals. This exploitation bias is strengthened by the perceived remoteness of deep seabed mining and the real institutional disembeddedness of the International Seabed Authority (ISA). To better understand the distribution conflicts that the law of deep seabed mining addresses, the article introduces two (competing) sets of public interest objectives: participation in exploitation and revenue generation pursued by newly independent (and, today, developing) states and access to raw materials pursued by industrialized states. The article then focuses on the different ways in which the 1982 United Nations Convention on the Law of the Sea and the 1994 Agreement on the Implementation of Part XI promote, reconcile and detract from the identified public interest objectives. It reveals how the participation objective has given way to a focus on market supply and revenue generation, and how the changes of the 1994 Implementation Agreement may be read as an attempt to dissolve the conflict between these competing public interest objectives, and to depoliticize the seabed regime. Third, the article turns to the ongoing work on a mining code for the deep seabed that, inter alia, must implement the ISA’s mandates to generate revenue from deep seabed mining and to redistribute this revenue. It shows how the ISA’s adoption of an individualist stakeholder orientation and its deference to commercial expectations of profitability, in the context of growing political attention to the oceans as a source of economic growth, are further transforming the notion of common heritage and benefit sharing and concomitantly undermine the regime’s redistributive ambitions. It also clarifies how the sponsorship of deep seabed mining by small Pacific island states holds only little promise of significant public revenue generation for these states, but may work to undermine solidarity among developing states. The article ends with a call on international lawyers to recognize the designing of a mining code for the deep seabed as the making of political economy.

Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation

This article understands Antonio Cassese's Realizing Utopia as an invitation to reflect about idealist international law scholarship and its method. In Realizing Utopia and Five Masters of International Law Cassese proposed critical positivism as the adequate method for the international lawyer to interpret international law and to suggest legal reform in order to bring international law better in line with the values of the international community. While I agree that critical positivism allows the practitioner of international law to pursue his utopian vision when interpreting and applying the law, I argue that legal scholarship that engages in proposals on what the law is or should be needs to go beyond critical positivism. On the one hand, it has to venture into other disciplines, such as moral philosophy, political theory, or economics, to justify its choices. On the other hand, it must take account of other subdisciplines of law, in particular private law and "law & society" studies, in order to benefit from their insights into the relationship between law, markets, and society. These reflections, to me, do not diminish the value of Realizing Utopia, but rather suggest that it should be read as an instance of utopian international law practice.

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Realizing Utopia through the Practice of International Law

In search of alternative political economies – less exploitative, less ecologically destructive – scholars and activists have turned to the commons and to commoning in recent years. For international lawyers, the term commons brings to mind the domains designated as ‘global commons’ and, among them, the oceans and outer space. Yet current initiatives that seek to harness the economic potential of the oceans in the name of ‘blue growth’, projects seeking to commercialize outer space and, a fortiori, proposals to ‘colonize’ outer space and the oceans as a solution to conflict and environmental destruction stand in stark contrast with visions of a commons economy built on solidarity.

International Law and Economic Exploitation in the Global Commons: Introduction

Contractor liability for environmental damage resulting from deep seabed mining activities in the area

While distribution conflicts over natural resources were central to the debates on a New International Economic Order, during the last decades the specific distribution conflicts surrounding natural resource exploitation no longer have been at the core of international law. In this paper I trace the developments in the relationship between international law and resource distribution conflicts. I first argue that the New International Economic Order favored the political resolution of distribution conflicts over natural resources and envisaged international distribution conflicts to be addressed by the political organs of international institutions within legal procedures Second, I show how the NIEO was surpassed by a different order that relied largely on the market as a distribution mechanism for raw materials and how international institutions and international law played a crucial role in the establishment of this order by promoting the privatization of natural resource exploitation and protecting foreign direct investment and trade. With reference to the copper industry in Zambia I thirdly illustrate how international investment law, and more broadly international economic law, is shaping (and affecting the resolution of) not only distribution conflicts between, but also within States. I conclude with a call for a renewed focus on an international law of resource conflicts to allow for their political resolution given the countermoves we can observe with respect to international investment law and the persistence of (violent) conflicts over natural resource exploitation within States.

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Isabel Feichtner

Papers

Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation

Realizing Utopia through the Practice of International Law

International Law and Economic Exploitation in the Global Commons: Introduction

Contractor liability for environmental damage resulting from deep seabed mining activities in the area

International (investment) law and distribution conflicts over natural resources