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This article looks at the human side of protecting foreign investment in the sense that it zooms onto the role stereotypes play in the development of the relation between human rights and investment law. I demonstrate that international human rights law not only protects from discrimination based on stereotypes but also creates and reiterates stereotypes. These stereotypes may entrench differences between communities but also bear potential for new convergences. I argue that we need to focus on the humans producing the transnational legal discourse and the process of normalisation of those humans in order to destabilise stereotypes that hinder possible convergences of human rights and investment community. In short, this paper explores in what way international law's stereotypes encourage convergence or divergence in transnational legal discourse on the intersection between human rights and investment law.

This paper aims to outline a multi-layered conception of justice that is appropriate to the circumstances of justice in the European Union. Adopting the Rawlsian concept of public reason, it submits that duties of justice can only be imposed to the extent that the actors involved command a shared set of reasons by which these can be justified. The paper’s argument follows Rawls in using public reason to justify a qualitative distinction between the demands that derive from the domestic and the international domain of justice. It criticises Rawls, however, for misjudging the radical implications of this position in a world that has become much more internationalised than he recognised it to be.

Justice is a contested concept. A more graspable understanding of it requires the context of ‘injustice’. As such, a main theme of this paper is the disjunction between, on the one hand, strong reactions to injustice and a desire for some effective dimension to the EU, some normative adhesive that might bind the EU as an ethical entity; and on the other, the very great difficulty in identifying an enforceable concept of justice in an EU that continues to be driven by a market mentality. This paper also argues that it is the very sui generis, supranational status of the EU that creates particular obstacles to the realisation of a shared sense of justice. Due to this structural limitation, it is argued that any agreed concept of justice will remain minimalist. However, human rights remain a powerful symbolic and actual force for justice and a better focus for its achievement.

The introduction to this special issue presents and explains the main idea behind each contribution to this collection of papers. Specifically, this special issue explores a grammar of justice and justification through political theory, legal and sociological perspectives, and discusses their relevance in EU and transnational contexts. The introduction also links the papers together and supplies some concluding thoughts.

Article 6.8 was included in the Paris Agreement in the last minutes of COP15 after years of advocacy for non-market approaches (NMAs), predominately from Bolivia. Between 2015 - 2021, however, the development of NMAs remained largely stagnant and was hindered by ideological and financial disagreements during negotiations. Despite challenges, the operationalisation of NMAs under Article 6.8 has recently started to take shape. Major developments driving this are the development and maturing of relevant pilot projects, such as the Adaptation Benefits Mechanism (ABM) and the Local Climate Adaptive Living Facility (LoCAL), as well as the finalisation of the Paris Agreement Rulebook at COP26. Accordingly, this paper uses a transnational framing to explore these developments and the potential impacts of NMAs under Article 6.8, with particular attention towards financial and ideological considerations.

This paper highlights the scientific and political vulnerability of transnational science-based standards. This paper focuses on radiation standards formulated by the decentralised web of expert committees and inter-governmental forums. Transnational science-based standards are beset with scientific fragility, precisely because they provide certain regulatory stability in the scientifically uncertain areas. This scientific fragility is accompanied by political vulnerability. Transnational science-based standards are often formulated without the involvement of those private entities and individuals on whom the standards have visible consequences. This paper exposes the domestic neglect of dual vulnerability by analysing the Japanese stories after Hiroshima–Nagasaki (1945) and Fukushima (2011). While this paper discusses a specific scenario, the issue of dual vulnerability would likely arise in many other science-based standards which are formulated transnationally and absorbed into the domestic legal order on the basis that they are scientifically authoritative with little need for political input.

Global value chains (‘GVCs’) have become a basic operative unit of economic production. Their development over the twentieth and twenty-first centuries has resulted in immense creation of wealth while linking together individuals, companies and economies across the world. But GVCs are also a major cause for environmental degradation, carbon emissions and human rights abuses—the ‘externalities’ of global production that are not captured by existing regulatory frameworks. This paper examines the role of private international law (‘PIL’) in mapping GVCs into specific jurisdictions. The analysis suggests that PIL, focused on individual entities, does not allow a systematic legal approach to GVCs, which are collective entities. This lack of a systematic approach exacerbates the externalities of global production. However, the budding legal operationalisation of GVCs provides a functional-analytical lens to understand, systematise, critique and develop the role of PIL as a fundamental transnational constituent in ordering global production in relation to GVCs and beyond.

This article traces a transition in the aspirations of social justice on global scale. The ‘welfare world’ vision of global justice, as it was captured most prominently by the proposals for a New International Economic Order in the mid-1970s, is contrasted with the contemporary ambitions of ‘supply chain ethics’, which seek to infuse transnational corporations with social responsibilities. These visions differ drastically in their ambitions, their epistemologies, and the role they reserve for the state but share a structural outlook on issues of social justice. Following the theme of the Special Issue, the shortcomings and the potential of the current supply chain ethics agenda in addressing the ‘human problems’ associated with corporate irresponsibility are reviewed. The paper suggests that mediating between structure and agency in a way that recontextualises the democratic principle is necessary to challenge power asymmetries in global regimes of production.

Based on International Human Rights Law and EU law, this article endorses a ‘functional’ paradigm of EU’s fundamental rights obligations, exploring whether such obligations extend beyond the EU’s external borders and which positive obligations, if any, they entail. The article argues that the EU’s fundamental rights obligations are founded in a non-territorial standard, as they attach to all ‘functions’ exercised by EU institutions, regardless of their internal or external scope. The paper then addresses the implications of such paradigm for the EU’s human rights obligations in the context of its Common Commercial Policy, focusing in particular on trade agreements, investment protection agreements and on the EU’s duty to regulate corporate actors.

Despite its noble intentions and some victories, environmental law has been and continues to be complicit in driving the processes and paradigms that give rise to the Anthropocene. Environmental law is also unable to respond to the regulatory challenges that arise from the Anthropocene’s complex Earth system. We need a new legal paradigm that is better fit for purpose in the Anthropocene called Earth system law. A key reason for environmental law’s failures and an obstacle preventing its transformation, is its reluctance to embrace and respond to the notion of the Earth system. My hypothesis is that the Earth system metaphor should be key in rethinking environmental law with the ultimate view to constructing Earth system law for the Anthropocene. The primary purpose of this paper is to explore what the Earth system metaphor entails and what it might imply for environmental law’s transformation to Earth system law.

Speculation in commodity derivative markets has been linked to the causation of the 2007-\ud 11 global food crisis. Derivatives have also been implicated in the causation of the global\ud financial crisis. Much of the legal scholarship on derivatives is concerned with how best to\ud regulate their use. Other work has pointed to the role of transnational actors, such as the\ud International Swaps and Derivatives Association (ISDA), in facilitating the growth of the\ud global derivatives market. What is missing in this scholarship is an account of how the norms\ud of contract law have been altered, extended, and even distorted to create a new generation\ud of financial assets linked to food prices. In this paper, I begin a project of examining how\ud the trade in commodity derivatives has disrupted some of the established principles of\ud contract law, and I reflect on the significance of my findings for the debate about derivatives\ud regulation.

This paper provides a realist analysis of the European Union’s (EU) legitimacy. We propose a modification of Bernard Williams’ theory of legitimacy, which we term critical responsiveness. For Williams, ‘Basic Legitimation Demand + Modernity = Liberalism’. Drawing on that model, we make three claims. (i) The right side of the equation is insufficiently sensitive to popular sovereignty; (ii) The left side of the equation is best thought of as a ‘legitimation story’: a non-moralised normative account of how to shore up belief in legitimacy while steering clear of both raw domination and ideological distortions. (iii) The EU’s current legitimation story draws on a tradition of popular sovereignty that sits badly with the supranational delegation and pooling of sovereign powers. We conclude by suggesting that the EU’s legitimation deficit may be best addressed demoicratically, by recovering the value of popular sovereignty at the expense of a degree of state sovereignty.

The EU's central task is to improve the lives of European citizens. The EU acts out that task by enhancing its internal market, on the assumption that market exchanges are a primary way individuals pursue their own conceptions of the good life. While the EU aims to enable market exchange through its legal structures, it does not demarcate the moral limits of its internal market. As such, the EU approach to the internal market has decoupled market logic from morality. However, justice requires that European citizens are treated with equal respect and that the exchanges they wish to pursue are subject to a generalisable normative standard. This paper explores the question of how and where the moral limits of the internal market are drawn as a question of justice, and argues that the current European approach to this question fails to safeguard European citizens from denigration.

This paper demonstrates that reasoning with statutes and reasoning with cases are actually one and the same intellectual activity. Further, the reasoning practice of the courts in Germany, California, and England and Wales is identical. This finding contradicts a widely held opinion that the legal reasoning of civil law lawyers differs fundamentally from the legal reasoning of common law lawyers.

The contemporary literature on the philosophy of human rights features a clash between two opposing theoretical paradigms. The first paradigm, called Functionalism, grounds the nature of human rights in their practical or political significance. The second paradigm, called Foundationalism, grounds the nature of human rights in a pre-political substratum of moral thought to which positive legal-political institutions ought to conform. What tends to make the first paradigm more appealing is that it avoids the problem of grounding human rights in moral considerations that may be ethnocentric and thus not acceptable to all peoples everywhere. This paper makes a case for a version of Foundationalism called Natural Law Foundationalism, which has often been overlooked in the contemporary literature. It argues that Natural Law Foundationalism is a promising view because it is capable of confronting the ethnocentricity problem more effectively than other versions of Foundationalism. It also argues that the...

The concept of authority has become increasingly palatable to scholars in law, political science and philosophy when describing, explaining and assessing global governance. While many now seem to agree that applying authority to transnational relations opens fruitful arenas for legal, empirical and normative research, they rely on partly incompatible notions of authority, how it emerges out of and affects the social relations between key actors, and how it relates to legitimacy. In this paper, we introduce this special issue on transnational authority. We discuss why international authority has become a central concern in international studies and compare key contemporary conceptions of international authority, highlighting their strengths and weaknesses. We also present the different contributions to this issue, which further seek to clarify the concept and its application in law, political science and political theory, theoretically or empirically, assessing arenas where authority is or is not l...

This paper examines how ideas of postnational constitutionalism and postnational public law have developed and will likely continue to develop in ways that are in some respects complementary and in other respects in tension. Both terms are neologisms - recently emergent concepts seeking to adapt legal-normative ideas suited to one (state) context to another (postnational) context. To subscribe to either, or to both, is already to take sides against a broad church of postnational sceptics, and instead to view the legal forms and vocabulary of statehood as a mobile resource and as an indispensable part of any answer to the question of the authority of the expanding domain of law beyond the state under conditions of globalisation. Yet beyond this basic threshold of agreement, postnational constitutionalists and postnational public lawyers tend to differ in emphasis. Whereas the former focus on the 'constitutive' or 'input' side of state-like law at the myriad new sites of postnational authority, the latter tend to concentrate on the 'throughput' or 'output' side of state-like law in postnational contexts. For the former, authority and legitimacy tend to be a function of particular pedigree and collective subjectivity, whereas for the latter authority and legitimacy tend to be a function of general ‘public’ norms and procedures and supposedly objective standards.These differences are motivated by normative preferences, and also by differing diagnoses of the postnational environment and different estimations of law's possibilities and limitations under these circumstances. Other approaches that try to reach beyond this normative and diagnostic division to combine or reconcile input and output, particular and general, subjective and objective, must do in appreciation of the fact that the basic opposition in question cannot be entirely eradicated. Rather, it reflects the deep and resilient ambivalence of the aspirational horizon associated with the age of political modernity - as relevant to the postnational phase as to the state-centred phase - in which the values of autonomy and equality within a constructed socio-political project have displaced earlier notions of conformity and status in accordance with a pre-given order of things. For under these modern conditions law must be concerned both to endorse and facilitate the collective pursuit of autonomy and equality and to protect the core individual expression of these values from collective encroachment.

Professor Ladeur argues that administrative law's postmodernism (and by extension Global Administrative Law) necessitates that we move beyond relying on ideas of delegation, accountability and legitimacy. Global Governance, particularly Global Administrative Law and Global Constitutionalism, should try to adapt and experiment with the changing nature of the postmodern legality and support the creation of norms that will adapt to the complexities of globalisation. Ladeur's contestation, similar to GAL's propositions, can be challenged. By taking the International Criminal Tribunal for Rwanda, a significant contributor to the field of international criminal law, as an example, it is suggested that the creation of networks that Ladeur makes visible may not account for ‘regulatory capture’. This paper will argue that from the outside, the proliferation of networks may suggest that spontaneous accountability is possible. A closer look, however, drawing on anthropological insights from the ICTR, reveals...

This paper draws out the analogies and connections between long-standing legal sociological insights into pluralistic legal orders and present concerns regarding the fragmentation of law outside of the nation state. Within the nation state, the discovery of legal pluralism inspired a larger contestation of concepts of legal formalism, of the alleged unity of the legal order and of the hierarchy of norms against the background of a constantly advancing process of constitutionalisation. This research heightened regulators' sensitivity to blind spots and exclusionary dynamics in the design of rights, leading inter alia to wide-ranging efforts to render more effective access to justice, legal aid and legal representation. Another important consequence concerned an increased awareness of different levels and sites of norm creation in various societal areas. Much of this is mirrored by today's quest for a just, democratic and equitable global legal order, for example in debates about ‘fragmentation of i...

Pursuing the so-called political account of human rights, this talk first explains some aspects of the relations between legal and moral rights, and between rights and interests, and then applies the analysis to provide an explanation of human rights. Using the rights to health and to education as examples, it rejects the traditional theory that takes human rights to be rights that people have in virtue of their humanity alone. But human rights are synchronically universal. They are rights which all people living today have, a feature that is a precondition of, and a result of, the fact that they set limits to state sovereignty and justify accountability across borders. Human rights function in the international arena to underline the worth of all human life. They give individual interests a central place in international relations, and have become a distinctive ingredient in the emerging world order where they generate new channels for political action in the international arena. They are by their nature moral rights that call for legal-political protection. Needless to say mechanisms for their protection should be efficient, reliable and fair, or they may cause more harm than good. Moral rights that cannot be fairly and effectively protected though legal processes are not human rights. The discussion of these points highlights the fact that the political account of human rights takes their existence to be contingent on social, economic and cultural factors, and the rights to health and to education are used to illustrate this dependence on factual contingencies. The fastchanging structures of the international scene include changes and challenges in the content and protection of human rights. The paper concludes with a discussion of the difficulties that cultural diversity creates for identifying the content of such rights, and for devising mechanisms for their protection. I will start with some—hopefully truistic—observations about rights, which will lead to a reflection on the role that human rights play in the emerging world order. I say ‘the emerging world order’ for it seems that we are going through a period of fast transition. If it is sensible to date its beginning to the collapse of the Soviet Union and the Soviet Bloc, (2010) 1 Transnational Legal Theory 31–47 31 * Thomas M Macioce Professor of Law, Columbia University, and formerly Professor of The Philosophy of Law, University of Oxford. This article is an expanded and revised version of the lecture I gave at the opening plenary session of the 24th IVR World Congress in Beijing, September 2009, which was entitled ‘Human Rights in a New World Order’. I have retained its character as a mostly footnote-free and fluidly structured address. I am indebted to Professor Craig Scott for many comments and suggestions for improving the text. The unrevised ‘Human Rights in a New World Order’ speech will appear in the IVR proceedings as well as in translation in Chinese.