Sustainable Commodity Use: Its Governance, Legal Framework, and Future Regulatory Instruments

Description

This open access book examines the governance and legal landscape of the global commodity sector. For that purpose, the author conceptualises both Global Commodity Governance (GCG) as well as Transnational Commodity Law (TCL). He defines the key terms of Global Commodity Governance, delineates the underlying legal framework of Transnational Commodity Law, and assesses the effectiveness of Transnational Commodity Law in fostering a functional commodity sector. “Sustainable Commodity Use” is based on a comprehensive analysis of over 250 international agreements, standards, and guiding documents. The author distils the main findings into a conceptualisation of Transnational Commodity Law and provides the reader with a succinct overview of its normative configurations as well as regulatory gaps. Moreover, he elaborates a taxonomy of International Commodity Agreements. In addition, an outline of the normative substance of Transnational Commodity Law features in an appendix to the main text. The author concludes by making concrete suggestions on how rules regulating commodity activities de lege ferenda could and should be designed to improve the effectiveness of law regulating transnational commodity activity. In doing so, he demonstrates the application of the sustainable use principle as the overall objective and purpose of Transnational Commodity Law and discusses International Commodity Agreements as future regulatory instruments. This book may assist lawmakers, practitioners, civil society advocates, and academics worldwide in developing a legal framework for sustainable global commodity activity. Contents Abbreviations Chapter 1: Introduction References Literature and IO/NGO Publications Chapter 2: The Emergence of Global Commodity Governance 2.1 The Task: Ensuring a Functional Commodity Sector 2.1.1 Defining the Term `Commodity´ 2.1.1.1 General Meaning 2.1.1.2 Definition According to the Havana Charter 2.1.1.3 Use by WTO and UNCTAD 2.1.1.4 Definition for the Purpose of This Book 2.1.1.5 Types of Commodities 2.1.1.6 Neighbouring Terms 2.1.2 Economic, Political and Technical Circumstances of Commodity Activity 2.1.3 Defining a Functional Commodity Sector 2.1.4 Defining Global Commodity Governance (GCG) 2.2 The Historical Emergence of GCG 2.2.1 Commodity Policy Before 1945: The `Anglo-Dutch´ and `League´ Phases 2.2.2 The Havana Phase 2.2.3 The NIEO-UNCTAD Phase 2.2.4 The Phase of `Post-Interventionism´: Shift Towards Cooperative Agreements 2.2.5 The Appearance of GCG 2.3 Role of the Law 2.3.1 Purpose of the Law 2.3.2 Law as the Catalyst of a Functional Commodity Sector 2.3.3 The Effectiveness of the Legal Framework of GCG References Literature and IO/NGO Publications Cases Chapter 3: Conceptualising TCL 3.1 The Purpose of TCL 3.2 The Organisational Framework of Commodity Law 3.2.1 Definition of Commodity Law 3.2.2 Core Conceptual Characteristics of Commodity Law 3.2.2.1 Factual 3.2.2.2 Policy Trade-Offs 3.3 The Norms of TCL 3.3.1 Sources of TCL 3.3.2 Structure of TCL 3.3.3 TCL in the Commodity Governance Matrix References Literature and IO/NGO Publications Chapter 4: The Effectiveness of TCL 4.1 The Principle of PSNR as Normative Corner Stone 4.1.1 Competence Norm 4.1.2 Rights Associated with PSNR 4.1.3 The Sustainable Use Principle 4.1.4 TCL Is Effective Where It Fosters Sustainable Use 4.2 The Contribution of TCL to a `Balanced´ Commodity Sector 4.2.1 TCL Is Largely Indirect 4.2.1.1 Human Rights 4.2.1.2 Environmental Protection Norms 4.2.1.3 Fiscal Framework 4.2.1.4 Armed Conflict 4.2.1.5 Anti-corruption 4.2.1.6 Interim Conclusion 4.2.2 The Limited Effectiveness of Incidents of Direct TCL 4.2.2.1 Hard, Direct TCL Does Not Balance Commodity Interests Comprehensively 4.2.2.1.1 Norms Balancing Economic Gain and Development 4.2.2.1.2 Norms Balancing Economic Gain and Participation 4.2.2.1.3 Norms Balancing Economic Gain and Environmental Protection 4.2.2.1.4 Norms Balancing Economic Interests of States 4.2.2.1.4.1 Aiming at Inter-State Balance: Shared Resources 4.2.2.1.4.2 Commodity Trade and Development: Hard, Yet `Declaratory´ Provisions 4.2.2.1.5 Integration Between Norm Subsets of TCL 4.2.2.2 Direct TCL Is Largely of `Soft´ or Private Nature 4.2.2.2.1 Incidents of Soft, Direct TCL 4.2.2.2.1.1 Good Governance 4.2.2.2.1.2 Fiscal Framework 4.2.2.2.2 Incidents of Private, Direct TCL 4.2.2.2.2.1 General System of Corporate Responsibility 4.2.2.2.2.2 Private, Direct TCL 4.2.2.2.3 Interim Conclusion 4.2.2.3 Specific, Direct TCL Is Largely Private 4.2.2.4 Interim Conclusion 4.2.3 The Standards of TCL Are Hardly Integrated 4.2.3.1 Formal Integration 4.2.3.2 The Normative Deficits of Formal Integration 4.2.3.3 Full Integration 4.2.4 Interim Conclusion 4.3 The Imbalance of TCL in Favour of Economic Objectives 4.3.1 System, Shifting Paradigms and Unbalancing Effects of International Investment Law 4.3.1.1 Expansion of Investment Protection 4.3.1.2 Turn to SD 4.3.1.3 Economic Imbalance: Investment Protection as a Matter of Conflict Between Host States and Foreign Investors 4.3.1.4 Societal and Environmental Imbalance 4.3.1.5 Integrating Investment Protection into the TCL Framework 4.3.2 The Law of Liberalised Trade 4.3.3 Interim Conclusion 4.4 Regulatory Gaps Within the TCL Framework 4.5 Interim Conclusion References Literature and IO/NGO Publications Cases Chapter 5: Fostering the Effectiveness of TCL 5.1 Unfolding the Normative Potential of SD 5.1.1 Defining SD as the Object and Purpose of TCL 5.1.1.1 Conceptual and Normative Characteristics of SD 5.1.1.1.1 The Origins of SD as a Political Objective 5.1.1.1.2 The Core Conceptual Contents of SD 5.1.1.1.3 The General Legal Effects of SD 5.1.1.2 The Legal Nature of SD 5.1.1.2.1 The General Debate 5.1.1.2.2 SD as Regulatory Objective 5.1.1.2.2.1 Political Objectives Typically Evolve to Regulatory Objectives 5.1.1.2.2.2 Law Fosters the Development of Society 5.1.1.2.2.3 SD as Regulatory Objective in International Treaties 5.1.1.2.2.4 SD as Regulatory Objective Beyond Treaty Regimes 5.1.1.3 The Legal Impact of SD as the Object and Purpose of TCL 5.1.2 Operationalising SD Through Full Integration 5.1.3 Learning from International Labour Law 5.1.4 Interim Conclusion 5.2 ICAs as Instruments Specifying Sustainable Commodity Use 5.2.1 Analysis of Current ICAs 5.2.1.1 Types of ICAs 5.2.1.1.1 ICAs sensu originali 5.2.1.1.2 ICAs sensu stricto 5.2.1.1.3 ICAs sensu lato 5.2.1.2 Analysis of ICAs sensu originali and sensu stricto 5.2.1.2.1 International Commodity Bodies 5.2.1.2.2 ICAs sensu originali 5.2.1.2.2.1 Objectives 5.2.1.2.2.2 Substantive Obligations 5.2.1.2.2.3 Institutional Arrangements 5.2.1.2.2.4 Dispute Settlement 5.2.1.2.2.5 Interim Conclusion 5.2.1.2.3 ICAs sensu stricto 5.2.1.2.3.1 Agreements with a Narrow Scope 5.2.1.2.3.2 Broader Scope 5.2.1.2.3.3 Comprehensive Scope 5.2.1.2.3.4 Interim Conclusion 5.2.1.3 Some Reflections on ICAs sensu lato 5.2.1.4 Interim Conclusion: Relevance of Current ICAs for GCG 5.2.2 ICAs De Lege Ferenda 5.2.2.1 ICAs as Instruments Codifying Balancing Norms 5.2.2.1.1 General Idea: Qualifying the Policy Space Available to States 5.2.2.1.2 Principle of Proportionality 5.2.2.1.3 Prevention of Irreversible Effects 5.2.2.1.4 Obligation for States to Detail Terms of Sustainable Use in National Regimes 5.2.2.2 ICAs as Instruments Incorporating SD as Their Object and Purpose 5.2.2.3 ICAs as Instruments Reinforcing the Rule of Law in the Commodity Sector 5.2.2.4 Reflections on Formal Questions 5.2.2.5 Interim Conclusion: ICAs as Tools Fostering a Functional Commodity Sector References Literature and IO/NGO Publications Cases Chapter 6: Conclusions References Literature and IO/NGO Publications Annex: The Substance of TCL: An Outline