Global Regulatory Standards in Environmental and Health Disputes: Regulatory Coherence, Due Regard, and Due Diligence

Global regulatory standards are emerging from international courts, the World Trade Organization, and investor-state dispute settlement. These standards include regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. The legitimacy of these standards is open to question, and debate over whether they should go beyond reasonableness and rationality requirements and require proportionality stricto sensu in the relationship between regulatory measures and their objectives is central. All actors should attend to the integration rather than the fragmentation of international law and to changes in the status of private actors.

Format: Hardback
Length: 416 pages
Publication date: 24 June 2021
Publisher: Oxford University Press

The emergence of global regulatory standards is a significant development in the field of environmental and health jurisprudence, driven by various legal frameworks and institutions. These standards are derived from the environmental and health jurisprudence of the International Court of Justice (ICJ), the World Trade Organization (WTO), the United Nations Convention on the Law of the Sea (UNCLOS), and investor-state dispute settlement. Among these standards, regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm are the most prominent.

Regulatory coherence refers to the harmonization and coordination of regulations across different jurisdictions to ensure a consistent and uniform approach to environmental protection and health risks. It emphasizes the importance of aligning national and international regulations to avoid conflicting policies and ensure that they are mutually supportive. Due regard for the rights of others involves recognizing and respecting the rights and interests of individuals, communities, and other stakeholders affected by regulatory measures. It requires governments to consider the impact of their actions on the rights and well-being of those who are most vulnerable. Due diligence in the prevention of harm involves taking proactive measures to prevent harm to the environment and human health before it occurs. It requires companies and other actors to identify and assess potential risks, implement measures to mitigate those risks, and monitor and report on their progress.

These global regulatory standards are a response to the growing need for a more coordinated and effective approach to addressing global environmental and health challenges. They represent 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 these standards remains open to question. International courts and tribunals should not be the only fora in which these standards are elaborated, and there are many challenges and opportunities ahead in the ongoing development of global regulatory standards.

One central debate is whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality stricto sensu in the relationship between regulatory measures and their objectives. Proponents argue that proportionality requires that regulatory measures be tailored to the specific circumstances of each situation and that they should be proportionate to the level of harm or risk posed. Opponents argue that proportionality can be difficult to apply and may lead to arbitrary and unpredictable outcomes.

Due regard, the most novel of the emerging standards, may help protect international law's legitimacy claims in the interim. Due regard requires governments to take into account the interests of other states and the international community when making decisions that may affect their rights and interests. It emphasizes the importance of international cooperation and dialogue in addressing global challenges.

Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors. The growing role of private actors in environmental and health regulation raises questions about their accountability, responsibility, and the extent to which they can be held liable for their actions. There is a need for clear guidelines and regulations to ensure that private actors are held to the same standards as public actors and that their actions do not undermine the objectives of international law.

In conclusion, the emergence of global regulatory standards is a significant development in the field of environmental and health jurisprudence. These standards are derived from a range of legal frameworks and institutions and are designed to promote a more coordinated and effective approach to addressing global environmental and health challenges. While there are challenges and opportunities ahead in the ongoing development of these standards, their legitimacy remains open to question. International courts and tribunals should not be the only fora in which these standards are elaborated, and there is a need for ongoing dialogue and cooperation among all actors to ensure that they are effective, accountable, and consistent with the objectives of international law.

Weight: 800g
Dimension: 161 x 242 x 31 (mm)
ISBN-13: 9780198810551