Caroline E. Foster’s research while affiliated with University of Auckland and other places

States have long been understood to have an obligation to protect the international legal rights and interests of others, consistent with the maxim sic utere tuo ut alienum non laedas (use what is yours in such a manner as not to injure that of another). As the world's population becomes more interdependent, this no harm obligation becomes more significant. Further, as knowledge increases about the consequences of human activity for the climate and the environment, the no harm obligation takes on greater relevance vis-à-vis the interests of the Earth's future populations. Future generations’ legal interests have been recognized in the context of sustainable development and through the principle of intergenerational equity. The no harm rule requires that these interests be properly considered and addressed appropriately, commensurate with what is at stake. At a minimum, this may require avoidance of ‘manifestly excessive adverse impacts’.

Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.

The most notable climate change litigation in New Zealand to date is the case of Thomson v Minister for Climate Change Issues. Law student Ellen Thomson filed proceedings in the High Court in 2015, receiving in 2017 a ruling that the Government had been obliged to consider whether its previous greenhouse gas emissions reduction target needed resetting in light of the release of the IPCC’s Fifth Assessment Report. Further climate change litigation of importance and interest includes the Wai 2607 claim brought before the Waitangi Tribunal by the Mataatua Māori District Council. The claim asserts that in the light of the potential effects of climate change on Māori the Government must take action to fulfil its responsibilities to Māori under the Treaty of Waitangi. A change of government in New Zealand in the 2017 Parliamentary elections looks set to result in greater action on climate change than previously, changing the landscape for potential future climate change litigation.

Empirical study reveals that the methods employed for identifying public morals and societal values in international dispute settlement seldom capture them directly. Rather what we see are governmentally mediated representations of these morals and values. Accepting such representations masks diversity in moral views and societal values within populations, assumes that governments properly represent populations on matters of conscience, and may endorse the characterization of social policies as an embodiment of public morality even where they are in tension with accepted human rights. The underlying difficulty appears to be that public morals defences entered international economic law at a time predating the current highly legalized dispute settlement processes with which we are now familiar, and that they are unsuited by nature to international adjudication in its present form. Contrastingly, the idea of legitimate public policy objectives featuring in certain recently negotiated regional free trade agreements poses fewer concerns of this nature.

The decision in the Philip Morris v Uruguay tobacco plain packaging case is important not only for its contribution in the health field but also more broadly for international environmental lawyers in light of the methodologies employed by the majority. The Philip Morris v Uruguay tribunal's willingness to place weight on international health law, embodying an openness to international law from beyond the investment field, was crucial to the decision. Additionally, the tribunal demonstrated a vital preparedness to engage with the scientific or technical question of whether Uruguay's tobacco measures would actually potentially be effective in reducing smoking, while accepting the inherent limitations in the available science. Notions of deference and margin of appreciation, as well as disproportionality or proportionality testing, may have eased the way for the majority decision, but were less crucial and ought not to be over-emphasized. Indeed, where there is broad international legal support for host States’ policies, it weakens international public policy to rest respect for States’ policies simply on a broad notion of deference or ‘margin of appreciation’. The Philip Morris v Uruguay tribunal was right to turn instead to international health law and the technical evidence on countering tobacco-related disease.

The idea of investment treaty arbitration as public law is in tension with the concept of international law as a law between representative public agencies. This concept of international law is valuable for its capacity to progress a broad range of public policy aims in an integrated and coordinated manner, including aims extending beyond the economic sphere such as international social, environmental, cultural and related aims. The probable effect on this concept of international law of a radical ‘internationalized public law’ approach to investment treaty arbitration requires further thought, especially with regard to the potential implications of recognizing investor rights under international law.

Ambition for employing public international legal authority as a means for the protection of human health and the environment appears to be diminishing in our transnationalist economic era. Practical and political challenges in defining the complex relationships between States and transnationally active commercial interests contribute to this. Emphasis on States’ domestic regulatory autonomy within contemporary international economic law is also a significant factor. This article canvasses three areas of international law and economic activity where the phenomenon of diminished ambition is manifest: responsibility, liability, and dispute settlement. Respectively, the article looks at developments in the three fields of law of the sea, international environmental law, and dispute settlement in the World Trade Organisation and through investment treaty arbitration. The article focuses on three specific topics within these three fields: the regulation of (i) deep seabed exploitation, (ii) possible risks associated with biotechnology, and (iii) tobacco regulation and public health. The article concludes that the result of our diminished ambition is to leave important areas of transnational economic activity unregulated, and encourages reflection on this phenomenon with a view to a strengthened approach in the areas where this will matter most.

Calls for the International Court of Justice to be more ready to seek the advice of independent scientific experts under Article 50 of the Court’s Statute are gaining momentum following the Court’s judgment in the Case Concerning Pulp Mills (Argentina v Uruguay). The two cases Whaling in the Antarctic (Australia v Japan) and Aerial Herbicide Spraying (Ecuador v Colombia) will provide a lightning rod for determining the Court’s interest in seeking external expert scientific opinion. In each of these cases, the Court may need to take a view on matters to which scientific opinion is essential. The Court will need to ensure it has the capacity to achieve the sufficiently reliable insights into the science necessary for a sound resolution of both disputes, taking into account also the interests of the wider international community. Should the Court decide to make use of Article 50, the procedures employed should be designed in ways that will strengthen and enhance the international constituency’s confidence in the Court as well as producing judgments acceptable to disputing parties. The Court is recommended to consult experts in an individual capacity rather than as group, and to consider adopting an interactive consultation process in order to benefit more fully from their expertise.