Is international law developing towards the recognition of a peremptory obligation for States and international organizations to stabilize anthropogenic greenhouse gas (“GHG”) emissions, so as to collectively attain a sustainable global average temperature increase? Do States have an obligation to cooperate and achieve this objective? Does such an obligation extend to non-State subjects? This Article explores the possibility that a new peremptory norm is progressively emerging in international law to contain global average temperature increase within sustainable limits, currently well below 2°C and possibly even 1.5°C above pre-industrial levels under the Paris Agreement, as well as its nature and scope. Arguably, the international and domestic practice of sovereign entities, civil society and NGOs is supportive, including the quasi-universal participation of States and international organizations in the UNFCCC and related instruments. Furthermore, the fundamental and shared nature of the atmosphere and climate, which cannot be adequately protected via conventions, compels thinking in terms of a goaloriented erga omnes duty akin to an obligation of result, triggering universal invocation of responsibility, sanctions, and enforcement. In light of the evolution of international law, the obligation to achieve sustainable anthropogenic GHG emissions could also address non-State natural and legal persons as both duty-bearers and right-holders, waiving immunity and triggering universal jurisdiction. * Associate Professor, University of New England, Law School, Australia; Adjunct, Australian National University, Centre for European Studies; Alumnus, European University Institute. Email: oquirico@une.edu.au; ottavio.quirico@anu.edu.au; ottavio.quirico@eui.eu. With the support of the Erasmus+ Programme of the European Commission: 620604-EPP-1-2020-1-AU-EPPJMO-PROJECT.
China’s adoption of its EU-style Anti-Monopoly Law 2007 was heralded with great fanfare. However, some 13 years following adoption, the 2007 Law’s aims are seen to have been neutered by the 2007 Law’s so-called “public interest” feature: favored actors are allowed to promote and engage in anti-competitive practices, without suffering State sanction. Demonstrating via a series of industry studies how China’s industrial policy approach markedly trumps EU competition ideals, this article questions whether China has accepted Competition philosophy at all, and proposes steps to be taken to address the current unsatisfactory situation, making detailed substantive and structural proposals for reform, aimed at enhancing the regulatory institutions so that their enforcement competence is not compromised. The piece also makes proposals designed to enhance the capacity of the enforcement institutions’ professional staff, all with a view towards enhancing the acceptance of Competition norms in China’s political and administrative-dominated business culture.
In today’s digital public sphere, individuals have little choice but to participate on online platforms, whose design choices shape what is possible, content policies influence what is permissible, and personalization algorithms determine what is visible. Ensuring that online content moderation is aligned with the public interest has emerged as one of the most pressing challenges for freedom of expression in the twenty-first century. Taking this challenge as its focus, this Article examines the promise and pitfalls of a human rights-based approach to content moderation—with a specific focus on the choices and challenges that online platforms are likely to confront in adhering to their corporate responsibility to respect human rights in this context. The Article examines three dimensions of a human rights-based approach to platform moderation in particular: a substantive dimension, encompassing the alignment of content moderation rules with international human rights law; a process dimension, encompassing the standards of transparency and oversight that platforms should implement as part of their human rights due diligence processes; and a procedural-remedial dimension, encompassing the procedural guarantees and remediation mechanisms that platforms should integrate within their systems of content moderation. The Article concludes by reflecting on some of the limits of the human rights-based approach and cautioning against viewing human rights as a panacea.
Professor Martin Flaherty’s new book, Restoring the Global Judiciary, presents an impressive and carefully researched argument that federal courts should play a more assertive role in foreign affairs. Drawing heavily on constitutional history, Professor Flaherty urges a restoration of the non-deferential and assertive role that courts played in the conduct of foreign policy during the nation’s first century. This essay, prepared for a symposium on Professor Flaherty’s book presented by and published in the Fordham International Law Journal, focuses on a potential complication with the type of historical comparison that is central to Professor Flaherty’s argument. Because the duty of federal courts is to interpret and apply the law to the particular cases that are brought before them, the practical significance of the judiciary’s role in foreign affairs will inevitably depend, to some significant extent, on the content of the applicable legal rules they are called upon to apply. And because the content of those background legal rules may change and evolve over time, it is conceivable that the judiciary’s proper functional “role” in foreign affairs controversies might be significantly different today than it may have been at different points in our history. This essay explores this possibility by focusing on three examples: (1.) the demise of prize jurisdiction as a meaningful source of adjudication over the course of the late nineteenth and early twentieth centuries, (2.) the mid-twentieth century shift from bilateral treatymaking to multilateral treaties (and the corresponding rise of treaty reservations), and (3.) the shift in the conceptual foundations of the presumption against extraterritoriality of federal law.
