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120 Scholars speak out against planned ISDS Provisions in TTIP

GNHRE LogoA group of 120 academic experts in trade and investment law, EU law, international law and human rights, constitutional law, private law, political economy and other fields has spoken out against planned provisions on investment protection and investor-state dispute settlement in the Transatlantic Trade and Investment Partnership.

The scholars, from leading universities in Europe and worldwide, have contributed to the public consultation which the European Commission launched in the face of strong public interest and growing concern about the issue. They criticize the Commission for failing to make a plausible case for the need for investment protection provisions in TTIP in the first place, and for excluding views on their desirability from the consultation exercise.

They welcome, on the other hand, the Commission’s recognition of the many serious flaws and shortcomings of the international investment arbitration regime as it has developed over the last few decades. In launching the consultation, Commissioner De Gucht acknowledged these problems and announced the ambition to ‘re-do’ investment law, make the system ‘more transparent and impartial’, ‘build a legally water-tight system’, and ‘close these legal loopholes once and for all.’ These objectives may be laudable, but the Commission’s approach falls far short of achieving them.

Specifically, the scholars find that the proposed text, amongst other shortcomings:

a) Allows for unwarranted discretion for arbitration tribunals in the application of various ‘necessity’ tests;
b) Fails to exclude acquisitions of sovereign debt instruments from the scope of the Treaty;
c) Allows anyone with a substantial business activity in the home state who holds any ‘interest’ in an enterprise in the host state to bring a claim;
d) Fails to spell out legal duties of investors in host states;
e) Fails to control the expansion of investment arbitration to purely contractual claims;
f) Fails to protect the ‘right to regulate’ as a general right and as a component of the Fair and Equitable Treatment (FET) and Expropriation standards of protection of investors;
g) Fails to further the stated principle of favoring domestic court proceedings, and
h) Fails to regulate conflicts of interest in the arbitration process.

Proponents of ISDS have suggested that the proposed provisions in TTIP may serve as a ‘Gold standard’ for the European Union’s use of its new competences regarding FDI under the Common Commercial Policy. The scholars show this claim to be misleading at best, and express the hope that the current controversy over ISDS in TTIP will prompt broad and serious debate about a sensible EU policy on existing and new investment Treaties in accordance with the values of Articles 2 and 3 of the Treaty on European Union that the Union is to promote in its relations with the wider world. Investment law is far too important to leave to just trade officials and investment lawyers.

The submission was written by Peter Muchlinski (SOAS School of Law), Horatia Muir Watt (Sciences Po Law School), Harm Schepel (Kent Law School), and Gus van Harten (Osgoode Hall Law School). The text and a full list of signatories is to be found here.


Harm Schepel
Professor of Economic Law
Brussels School of International Studies
University of Kent at Brussels
Pleinlaan 5
1050 Brussels
T: 0032 2 6411721
E: h.j.c.schepel@kent.ac.uk


GNHRE Symposium 2014 – Future Research Questions

GNHRE LogoThe GNHRE Symposium 2014, held at the IUCN Academy of Environmental Law Annual Colloquium 2014, hosted at the 2014 Annual Colloquium at Rovira i Virgili University, Tarragona, Spain, was a fantastic success.

The two days saw some lively discussion between an engaged and passionate group of scholars who share a vision for critical engagement with the assumptions of the status quo, and of law itself—including environmental law and human rights law. There was a clear sense of aspiration to offer transformative contributions to key debates and policy questions. The atmosphere was supportive, interactive and energising, and both days attracted a good number of IUCN scholars keen to hear the papers and join in the discussions.

Key themes emerging from the two days included:

A sense of the urgency of the climate crisis — and of its patterns of injustice; the socio-material distribution and construction of risk and vulnerability; the gap between the complexity of climate crisis and law’s taxonomical categories, path-dependencies and silos; the centrality of neoliberalism and corporate power; the role of lawyers and judges in deploying the constrained openness of law to create alternative directions; the place of social movement activisms in effecting change; questions of differential situation; the meaning of participation and epistemic responsibility and responsiveness in the legal system and beyond it; the problematic implications of constructing a human ‘we’ and the vital importance of ongoing intellectual engagement to resist the marketising strictures of neoliberalism—including the neoliberalisation of academia itself.

An important set of questions were either explicit,  implicit or raised by the papers. Some of the most important of these are briefly distilled here as a basis for ongoing collective reflection and engagement between members of the GNHRE network:

Theme 1: Philosophical re-investigations 

Lorraine Code, ‘The Tyranny of Certainty’: ‘Who do we think we are?’ ‘Who/What is privileged by the language of “we”?’ Whose certainty and uncertainty counts when it comes to deciding to act or not act in the face of the climate crisis?’ ‘Who constructs risk?’ ‘What potentially transformative role is there for situated communities in communicating diverse knowledges of what risk and vulnerability actually entail?’  ‘What would epistemically responsible debate about climate science entail?’ ‘How can law become fully responsive (if it can) to the politics of epistemic location?’

Jacky Williams, ‘Decolonizing environmental law’ (drawing on a joint project with J. Aseron and N. Greymorning): ‘Is the Anthropocene a ‘collective shadow self’?’ ‘Is the market a new global religion?’ ‘Is the market a neo-colonial  “Anglospheric” mode and space of privilege’? ‘Is the project of decolonising law now as urgent as it ever was?’ ‘What methodological strategies best decolonise environmental law?’ ‘Is environmental law intrinsically colonial/neo-colonial?’

Christian Dadomo,  ‘Remembering who we really are. A Buddhist-based approach to human beings in the nexus between human rights and the environment: ‘Does humanity need to remember rather than to reimagine itself?’ ‘Can Buddhism (conceived of as a technology of transformation of the self) contribute to global, structural change?’ ‘Can structural change ever happen without personal transformation?’  ‘Can Buddhism inspire and inform a renewing global politics of compassion?’ ‘How might Buddhism offer a responsibilist ethic able to respond to systemic complexity in a globalised market order?’

Anna Grear, ‘Flesh of my Flesh: Re-imagining Anthropocene humanity’: ‘Who or what is the anthropos assumed by languages of ‘anthropocentrism’ and the Anthropocene?’ ‘Does the Anthropocene trope simply re-enact materio-semiotic intra-species hierarchies foundational to an uneven global order?’ ‘Is it ethically responsible—or even cogent —to speak of the Anthropocene as if  there is an undifferentiated species being at its core?’ ‘What ethical responsibility do legal scholars have before invoking terms presuming an anthropos?’  ‘Is the “Anthropocene subject”, in reality, the transnational corporate subject?’ ‘How might the language of the “Anthropocene” be turned into a critical project able to awaken a renewing politics of compassion and inclusion fully responsive to the politics of differential situation?’

Theme 2: Activism and Praxis

Marine Destrez,  ‘Modernizing humanity: the case of the Gezi Park protest in Turkey’: ‘What is the political space of human rights and the environment in a rapidly developing country?’ ‘Are human rights and the environment  “elitist” constructions that do not/cannot address the marginalised?’ ‘What vision can be operationalised for ’emergent modernity’ in Turkey?’ ‘What role do social movement activisms have in constructing resistive forms of political subjectivity adequate to the complexities of confronting neoliberal privatising impulses in public space?’ ‘How do social movements and community engagements construct embodiments of “places” in which rights have liberatory meaning for the “subaltern”?’

Amanda Kennedy, ‘Who counts? Recognition, participation and access to environmental justice in land-use regulation: An Australian case study: ‘Do planning laws reinforce structural injustices?’ ‘Do regulatory systems adequately address the central question of “who counts?”‘ ‘What does a  justice as recognition lens reveal about who counts and about forces of marginalisation/invisibilisation in law?’ ‘How can law “see” the marginalised?’ ‘What values and policy tools best open law’s receptor sites to recognitional justice?’ ‘What subject is assumed/constituted by planning regulations?’ ‘How should recognition function in attempting to resolve environmental justice dilemmas?’

Judge Nicola Pain, ‘Shaping domestic laws and courts to encourage environmental rights’: ‘What is the role of courts and of judges in achieving environmental justice?’ ‘What constitutes environmental justice—and from which embodied, situated community perspectives?’ ‘What does the “constrained openness” of law itself enable judges to achieve?’ ‘How might litigant creativity be enhanced in order to give judges the opportunity to forge renewing interpretive judgments in questions of environmental justice?’ ‘How can scholars and judges work together to construct practicable modes of critical legal practice able to create new spaces of injustice-sensitive imagination in law?’

Theme 3: Reconfiguring the legal

Peter Burdon, ‘Idealism and Struggle: Co-opting Legal Rights for Environmental Protection’: ‘Can the underlying assumptions of environmental human rights ever address the underlying causes of environmental crisis?’ ‘Are environmental human rights a colonising construction incapable of being transformative?’ ‘Are human rights “empty signifiers” or “floating signifiers”? And what are the differences between and varying implications of both conceptions?’ ‘What are the liberatory possibilities emerging in the paradoxical energies of rights?’ ‘What is the role of institutionalising processes in deflecting liberatory social movement energies in the critical histories and authorships of human rights emerging from communities in struggle?’

Nicola Jägers, Katinka Jesse and Jonathan Verschuuren: ‘Environmental pollution by transnational corporations: what role for human rights?’: ‘To what extent do human rights feature in cases concerning corporate environmental malfeasance?’ ‘Can human rights have horizontal effect in a way that counts for courts addressing corporate pollution?’ ‘Is it possible to move beyond law’s taxonomic boundaries to deploy a broader range of normative sources—and would this render corporations more accountable in real terms?’ ‘Is a universal jurisdiction concerning human rights possible in an age of privatising international adjudicative power structures for corporate orders of privilege?’

Melanie Murcott: ‘The role of environmental justice in South African socio-economic rights litigation’: ‘Does “environmental justice” offer more than alternative available approaches to the achievement of more substantively just outcomes  in court?’ ‘What does environmental justice mean?’ ‘What substantive content might environmental justice add to deliberations at the interface between socio-economic disempowerment and corporate power?’ ‘What is the interplay between apartheid and neoliberalism in the  contemporary South African context?’ ‘How might an “environmental justice” approach engage with the biopolitical?’

Loretta Feris: ‘Are humans more than their health? Re-imagining the environmental dimensions of socio-economic rights’: ‘What explains the relative absence of focus on environmental considerations when examining questions of socio-economic rights?’ ‘How is critique of the underlying assumptions of environmental law possible if legal scholars continue to deploy languages implicated in the discursive structure of the system itself?’ ‘How can lawyers de-centre the discursive dominance of “business as usual” and simultaneously retain communicative engagement with the institutionalised legal structures lawyers perforce engage with as lawyers ?’ ‘What is the interplay between “rights claims”, “natural resource bases” and in/justices?’ ‘Are the socio-economic and “the environmental” ever separable? And if not, what implications does this have for the construction of a concept of “human health”?’

Dina Townsend, ‘Just who does the law think we are? Human dignity and what it means for the environment’: ‘What are the conceptual and definitional convergences between “dignity” and “humanity”—and what implications might such convergences have for “the rest of nature”?’ ‘How can (and should) dignity be rehabilitated?’  “Can/should dignity function as “trumps”?’ ‘What conception/s of dignity enable environmental justice? Retard environmental justice?’ ‘What is the temporality of dignity?’ ‘What are the relationships between dignity and embodiment?’ ‘What are the relationships between dignity, community and “identity”?’ ‘Is there such “a thing” as “dignity”—or is dignity a space of contestation and convergence?’ ‘What implications does reconceptualising dignity have for environmentally responsible epistemic practices and ethical engagements?’

Rosemary Lyster, ‘Protecting the Human Rights of Climate Displaced Refugees: the promise and limits of the United Nations Framework Convention on Climate Change: ‘How can/should adjudicative determinations based on a distinction between “forced” and “chosen” climate displacement be made in the context of a bio-political neoliberal hegemony that forecloses “choice”?’ ‘How does neoliberalism multiply constitute “zones of conflict” in ways that escape current dominant formulations of that concept?’ ‘How is the concept of “climate displacement” to be radically inclusive and materially responsive in an increasingly mobile and insecure world situation?’ ‘How might “climate displacement”, as an ethical basis for legal protection, engage adequately  with climate securitisation agendas so as meaningfully to protect vulnerable groups and populations?’ ‘What is the role of “planned relocation” and of corporate compensation in the future of climate justice agendas?’

Evadne Grant: Re-imagining Adjudicative Paradigms: ‘Is the individualism of human rights an insurmountable obstacle to the development of human rights fully responsive to the collective dimensions of environmental vulnerability?’ ‘To what extent are the limits of environmental human rights constituted and supported by court practices?’ ‘What adjudicative practices promise renewing potential avenues for a reformulation of environmental human rights?’ What do the differing cultures of regional human rights structures indicate concerning the potential transformations intrinsic to human rights?’ ‘What is the role of the human rights subject itself in the ideological formulation of human rights—and how might reconfiguring human rights subjectivities render human rights available for more radical, situated and environmentally responsible juridical engagements?’ ‘

GNHRE Symposium 2014




Bianca Jagger becomes GNHRE Patron

Bianca JaggerThe GNHRE is absolutely delighted and honoured to announce that Bianca Jagger, Founder and Chair of the Bianca Jagger Human Rights Foundation, Council of Europe Goodwill Ambassador and Member of the Executive Director’s Leadership Council of Amnesty International, USA, has agreed to be a Patron of the GNHRE.

Bianca is an outstanding, long-time and prominent international human rights, social justice and climate change advocate. For over three decades she has been a voice for the most vulnerable members of society, campaigning for human rights, civil liberties, peace, social justice and environmental protection throughout the world. Bianca is the recipient of numerous prestigious international awards for her human rights and humanitarian work. Her full profile can be seen under the ‘Patrons’ tab of this website.


Choosing a Future: Social and Legal Aspects of Climate Change

Choosing a futureThe GNHRE is delighted to announce the publication of a new edited collection, Choosing a Future: The Social and Legal Aspects of Climate Change, co-edited by Anna Grear and Conor Gearty.

The issue is no longer whether climate change is happening; it is rather what we should now be doing about it. Drawing together key thinkers and policy experts, this unique volume—also a Special Issue of the Journal of Human Rights and the Environment—engages with the human dimensions of climate change, offering a timely intervention into contemporary debates about the challenging relationship between law and society in a time of climate crisis. The book addresses: climate change as a crisis of human hierarchy; climate justice; the complicity of law in climate injustice; the rights of future generations; the nature of climate duties; the interplay between trade law and climate change strategies; and the nature of the policy responses now required to address the crisis. The result is an imaginative, well-informed and provocative collection of contemporary engagements with the greatest challenge of the age, concerned not only to understand the current crisis but to offer perspectives on how it can be addressed. At the heart of this volume is the conviction that change is urgent, possible and morally imperative.

Contributors: John Knox, United Nations Independent Expert on Climate Change; Mary Robinson, Director of the Mary Robinson Institute: Climate Justice; Oliver De Schutter, UN Special Rapporteur on the Right to Food; Connie Hedegaard, European Commissioner for Climate Action; Conor Gearty, Director of the Institute of Public Affairs, London School of Economics; Henry Shue, Senior Research Fellow Merton College, and Professor of Politics and International Relations, University of Oxford; Marcus Hedahl, Dahrendorf Postdoctoral Fellow; Anna Grear, Dahrendorf Visiting Fellow and Director of the Global Network for the Study of Human Rights and the Environment (GNHRE); Stephen Humphrey, Associate Professor of International Law, London School of Economics.


UN expert urges States to respect human rights obligations in environmental policies

The UN Office of the High Commissioner of Human Rights reports that
John Knox, the UN Independent Expert on Human Rights and the Environment has called on states to take obligations concerning the environment seriously: “It is now beyond argument that human rights law includes obligations relating to the environment,” said John Knox, urging States “to take these obligations into account in the development and implementation of their environmental policies.”

Mr. Knox’s appeal was issued during the presentation of his first comprehensive report to the UN Human Rights Council on the human rights obligations relating to environmental protection.