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2002 research outputs found
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Investor-State Climate Litigation: Could International Investment Law Help to Protect the Climate?
No full textClimate Protection and International Investment Law have an ambiguous relationship. Whereas some scholars highlight that investment Law could help in protecting green investments many commentators depict investment protection as an obstacle to States’ climate mitigation policies. This article seeks to go beyond that limited dichotomy in assessing whether investment law could be a tool for investors to argue for more, rather than less climate protection. In particular, full protection and security clauses may well be interpreted to contain due diligence obligations to protect climate sensitive investments against effects of climate change. Moreover, if States postpone climate protection to a time, when only by imposing a comprehensive ban on GHG emissions they may effectively protect the climate, such an ‘emergency stop’ may well amount to an indirect expropriation for many investors. As transition periods are much likely lacking, such an ‘emergency stop’ may also violate fair and equitable treatment provisions. Given that investors increasingly become aware of climate-related economic risks, the article provides a nuanced assessment of legal tools and arguments investors may employ against host-States unwilling to protect against what has often been depicted as “dangerous climate change” (global average temperature increase above 1.5°C)
WTO Law and Environmental Processes and Production Methods (PPMs): A Deconstruction
No full textIn principle, WTO members can adopt PPM measures to protect the environment, provided certain conditions are met to prevent the misuse of these measures for protectionist purposes. In practice, the judicial review of such measures in the WTO context is punctuated by practical difficulties, and is fraught with intractable uncertainty: most PPM regulations that were challenged passed on principle but failed on specific details related to the dispute at hand. This article aims to contribute to the PPM discussion by providing critical and deconstructive perspectives on trade law. It argues that the challenges in assessing WTO compliance of PPMs stem from the indeterminacy of open-textured trade rules, the limits of a ‘systemic integration’ approach to trade law, and a contested science-policy interface. Moving from these critical insights, the article explores potential pathways for reform in trade law, grounded in critical legal scholarship. It suggests a shift from standards to rules, from multilateral agreements to plurilateral, issue-specific agreements, and from trade ministries to multi-interest trade governance— all this supported by sectoral or issue-specific ‘due restraint’ arrangements within the WTO based on political compromise
Cultivating Attentiveness to Law in India through Legal Anthropology
No full textThis Article reviews and analyses scholarship at the intersection of anthropology and law. The first half of the Article provides context for understanding the boundaries, animating concerns, and tensions that have characterised the anthropology of law as an area of interdisciplinary inquiry. We focus especially on the subdiscipline’s Anglo-American history and show how a promising early period of engagement dissipated as both anthropologists and legal scholars lost enthusiasm for each others’ insights and methods. Then, we expand our analysis outward. Because legal anthropology belongs within, and is increasingly attentive to, the broader field of law and society scholarship, we explore the relationship between both areas of interdisciplinary study. In the second half of the Article, we narrow our focus geographically by identifying key themes and analytical approaches in the work of anthropologists studying law in India. We explore five broadly defined topics that have garnered significant attention in recent scholarship: religion, gender, criminality, governance and state power, and legal documents. As we show, the anthropology of law in India has not been defined by the same waning interest in formal law that came to define its late twentieth-century Anglo-American counterpart. This half of the Article goes on to explore anthropological scholarship published in the Socio-Legal Review, highlighting key works and discussing their methodological and theoretical approaches. Finally, the Article concludes by considering three key questions concerning the future of legal anthropology
Sieving Silence: The Communal Question and the Archive of Indian Constitutional History
No full textThis paper shows how the archive of Indian constitutional history limits access to constitutional disagreement. It attempts an alternative framing of the issue of political safeguards for religious minorities (‘the communal question’) as a triangle of disagreement among the Sikhs, the Anglo‑Indians, and Sardar Vallabhbhai Jhaverbhai Patel. However, the task is complicated by the silence in the official archives on all three actors. If, as critical historians argue, silence is the very condition of the archive and the writing of history, this paper argues that the historian must ‘sieve’ the inevitably silent archives of Indian constitutional history for perturbations, follow metaphors, and engage in critical, informed speculation
Empowering Consumer Rights and Community Welfare: Enhancing Corporate Accountability through a Geographical Indication Licensing Policy
No full textGeographical Indications are a unique form of intellectual property that can potentially improve social-economic welfare. The Indian GI Act is based on the concept of consumer welfare, which prevents market activities that can mislead or confuse consumers. Such confusion can be about the source of origin, the quality, or the reputation of the goods. However, several studies have shown the rampant use of GI names by unauthorized persons and Corporations, creating dangers of diluting the reputation of GI names. Such unauthorized use of GI names results in an unfair commercial advantage to these infringers. Not only that, a genuine consumer pays for imitative goods by making uninformed decisions and confuses such goods with GI goods. This paper focuses on corporations\u27 use of GI names in promoting and marketing their goods, claiming to use GI goods as essential ingredients. The paper suggests a licensing policy framework with an aim to safeguard the rights of both Geographical Indication (GI) communities and consumers of GI goods. It proposes licensing requirements for corporations using GI names and trade-in with such goods. In the first part, the paper briefly introduces the subject matter, including the importance of GIs in government activities. In the next part, the paper analyzes the legal provisions and case laws dealing with consumer welfare and the fair use doctrine under the GI Act. It further discusses the corporate accountability of GI Goods manufacturers beyond corporate social responsibility (CSR). It recommends policy frameworks like GI licensing, benefit sharing, and the creation of GI promotion and protection funds to empower GI communities and protect consumer interest. In the last section, the paper suggests amendments to the GI Act to enhance the welfare of communities and stakeholders, thereby strengthening the enforcement of consumer rights within the GI context. Through this comprehensive approach, the paper aims to promote just and fair trade practices and protect consumer rights in GI goods
Navigating the Conundrum of Mandatory Reporting under the POCSO Act: Implications for Medical Professionals
No full textTo address the under reporting of sexual offences against children, the Protection of Children from Sexual Offences (POCSO) Act, 2012, makes reporting of such offences mandatory. The duty to report such offences has been extended to healthcare professionals. The inclusion of healthcare professionals within mandatory reporting, however, strikes at the very foundation of the doctor-patient relationship based on trust and confidentiality and conflicts with the patient confidentiality safeguards of the Mental Healthcare Act, 2017. It also has unintended public health consequences, such as denial of medical termination of pregnancy due to fear of prosecution under POCSO. An urgent reassessment of these mandatory reporting norms for healthcare professionals, and a solution-based approach that harmonises societal interest in the reporting of sexual crimes with the child’s right to health is essential
The Role of a Judge in an Electoral Autocracy
No full textIn a year where 64 countries are holding elections, courts around the world must engage with a range of questions around electoral integrity and dysfunction, i.e., with the judicialization of electoral processes. How should democratically inclined judges respond to attempts by incumbent autocrats at leveraging laws to hold on to power
Moral Tragedies and the Israel-Palestine Conflict
No full textExcerpt: Why are we inclined to believe in moral tragedies? Because this is somewhat tempting in a comforting sort of way: the world presumably consists of values that can’t all be realised at the same time. You can have liberty and equality but not both at the same time, at least not always. I think a reason for this powerful belief is because one often feels stuck, as General Moshe did, and when one is stuck, one tends to believe in the status quo. But there is no reason that this must be inevitable. Surely, when things look intractable, they may not actually be so, and there must be a way out
