Justice and Authority in Investment Protection

What role should concerns about distributive justice play in international investment law? This paper argues that answers to fundamental and contestable questions of social and global distributive justice are a necessary, if implicit, premise of international investment law. In particular, they shape our views on the purpose of investment law, and in turn determine the scope of authority that investment law can claim, and that states should accord it. The implausibility of achieving international consensus on these questions constitutes a substantial objection to the harmonization of investment law or the consistent operation of a multilateral investment court.

Part III Conceptual Pillars, Ch.19 Differentiation

This chapter explores differential treatment, which is one of the main instruments that exist in international environmental law to foster equity. It builds on ideas of global distributive justice and helps to rebalance some of the most visible inequalities arising between formally equal states of very different size, power, and natural resource endowments. The principle that reflects differential treatment in international environmental law is that of common but differentiated responsibilities (CBDR). The chapter discusses the conceptual bases for and development of differential treatment. This confirms the significance of the break proposed to the traditional international legal framework and explains the continuing opposition to differential treatment by some countries. The chapter then highlights the different manifestations of differential treatment in international environmental law and shows that differential treatment pervades the whole field. It also looks at some of the critiques of differentiation and the forms of differential treatment that have evolved over the past couple of decades.

Sustainable Energy for All? Assessing Global Distributive Justice in the Green Climate Fund’s Energy Finance

There is growing international attention to the goal of universal energy access. Despite this, large financial gaps remain a major obstacle for realizing global energy justice for all communities. Drawing on political theories of global distributive justice, this article develops and applies a framework for how multilateral development assistance for energy projects can be evaluated in relation to three guiding principles. First, the global difference principle asserts that resources should be distributed to maximize the condition of the least well-off humans. Second, the local benefits principle asserts that resources should be distributed in ways that enhance the public goods of local communities, particularly those that are historically marginalized. Third, the global equality of opportunity principle asserts that all social groups and states have the capabilities to equitably access institutional structures relevant to the distribution of resources. We apply this framework to an analysis of finance for all energy projects within the Green Climate Fund (GCF) from 2015 to 2018. In doing so, we offer a nuanced understanding of the successes and failures regarding the performance of the GCF’s energy portfolio in relation to global distributive justice.

Normative View of Natural Resources—Global Redistribution or Human Rights–Based Approach?

This paper contrasts conceptions of global distributive justice focused on natural resources with human rights–based approach. To emphasize the advantages of the latter, the paper analyzes three areas: (1) the methodology of normative theorizing about natural resources, (2) the category of natural resources, and (3) the view of the system of sovereignty over natural resources. Concerning the first, I argue that global justice conceptions misconstrue the claims made to natural resources and offer conceptions which are practically unfeasible. Concerning the second, I show that contemporary philosophy of justice downplays the plurality of meanings resources have for collectives and argue that conflicts over natural resources can best be accounted for using human rights. Finally, the paper looks at sovereignty over natural resources and argues that rather than dismissing it as unjustifiable on moral grounds, it should be reformed in line with valid principles of international law, most importantly with human rights.

Global (Distributive) Justice

Most philosophers agree that it is unjust for one’s life prospects to be determined by one’s race, gender, or social class. And most think that there are demanding duties on members of the same political community (co-citizens) to reduce inequalities that track these features of individuals. But philosophers strongly disagree about how to evaluate inequalities that track the country one is born in. Are global inequalities (inequalities among individuals living in different countries) as problematic and for the same reasons as domestic inequalities (inequalities among co-citizens)? The question of whether egalitarian principles of distributive justice extend globally, beyond the domestic sphere, has been the central question in the debate on global distributive justice. Statists argue that there is something normatively significant about the state, but not the global institutional order, which grounds one’s concerns with domestic inequalities, but not global inequalities. Global egalitarians argue that global inequalities are as unjust to the same extent and for the same reasons as domestic inequalities. The disagreement between both camps can be traced back to different normative, empirical, and methodological assumptions. Statists and global egalitarians can, however, converge on a number of important issues, and the debate can be advanced beyond the stalemate it has reached by investigating these issues of convergence. Significantly, statists can agree with global egalitarians that global justice requires equality of concern (the requirement that interests of all individuals have equal weight), and global egalitarians have reasons to take states seriously to the extent that having a world of states (or multiple political communities) can be shown to be compatible with the requirement of equal concern. Thus, it is important to work out whether individuals have a fundamental interest in being members of political communities, how that interest compares to their interests in opportunities, income, and wealth, and which institutional arraignments can advance these interests according to the right balance.

On Morality and Migration

This chapter argues that the ethical analysis of migration involves not a single question, but several; it encompasses any number of distinct topics, ranging from global distributive justice to the subjective experience of being a migrant. This chapter therefore limits the scope of the book, by identifying its organizing question: may a state ever rightly exclude an unwanted migrant? As a start on this question, the present chapter introduces the assumptions and moral principles which will be assumed to be true in the rest of the book—including, most importantly, the concept of the person with which that analysis will begin.