The first chapter of the book develops a normative theory of court organisation and decision-making. It provides the normative framework to assess the development and state of the ECJ’s procedural and organisational law. The chapter argues that the procedure and organisation of a court should depend on its role in a political system. To develop this argument, it presents three ideal models of court decision-making: a liberal model, a rule of law model and a democratic model. The liberal model is associated with the theoretical work of Christoph Möllers. He sees the role of courts as protecting individual liberty. The litigants need to be at the centre of the judicial process. The rule of law model, which I associate with Niklas Luhmann’s theory of the judicial process, sees the role of courts not so much in the service of the individual; rather it sees the judicial process as instrumental for creating normative stability by inducing acceptance for court decisions as authoritative interpretations of the law. Finally, the democratic model, that I associate with the theory of adjudication by Jürgen Habermas, conceptualizes courts as democratic organs of a political community. They need to connect to the will of a political community and aim for a procedure that embeds a court’s work in the public sphere.

The introduction of the book has two purposes. First, it explains why a normative theory of ECJ procedural and organisational law is needed. It puts forward three reasons: first, procedural and organisational design involves making important choices on the role of courts in society; second, the dominant normative approach to assessing the ECJ’s work, namely the focus on its methods of interpretation, faces a number of conceptual problems; and third, ECJ judicial reform is of great practical relevance and requires normative anchoring. Secondly, the introduction explains the empirical strategies the book pursues to investigate the ECJ’s inner workings. In particular, it explains how requests for access to adminstrative documents and statistical analysis is used in the book to get a better understanding how the ECJ’s procedural and organisational rules are applied in practice. Finally, the introduction summarises the core of the book’s argument.

The relevance of broader public policy considerations in the sovereign debt discourse cannot be ignored given the rise of the perception of sovereign default as a global concern. Recent literature tries to introduce a public law or policy perspective into the sovereign debt discourse, such as the theory of international public authority, l’ordre public de la dette souveraine and an incremental approach. As a matter of judicial interpretation, however, public policy arguments as such cannot override the text of the contract or treaty provisions in force. A better approach will thus be to examine whether and to what extent the applicable contract, statutory and treaty provisions afford such public policy considerations through interpretation in such a manner that practical solutions to holdout problems are deduced without losing the balance between bondholder protection and respect for sovereign debt restructuring.

This chapter is a companion to the previous one and extends many of its themes, but this time in relation to territorial frontiers. ‘Frontiers’, as understand here, are simultaneously geographically peripheral to existing centres of political and economic power, objects of outward expansion and colonisation, and home to both abundant resources and local populations who are routinely marginalised, excluded and sometimes expelled in the name of development. The chapter explores such frontier dynamics in relation to ‘water frontiers’ within Sudan, the Palestinian territories, the Lake Chad region and north-eastern Syria. It shows that frontiers are sites of extreme levels and forms of appropriation, inequality, degradation, conflict and insecurity, as well as resilience and resistance, both in general and in relation to water specifically. And the chapter closes, in line with previous ones, by turning to climate change, noting that frontiers are widely misunderstood within climate crisis discourse – and by reflecting on how they are actually likely to fare as the planet warms.

The jurisdiction of arbitral tribunals to entertain sovereign bond disputes, which is primarily governed by the definition of investment as provided in applicable investment treaties, is the first stage at which such an appropriate balance is to be explored. This study has found that both the inclusion and exclusion of sovereign bonds as a protected investment reflect the policy decisions of contracting parties, and the ‘negotiated restructuring’ exception may embody a possible balance between bondholder protection and respect for negotiated debt restructuring. In the absence of an explicit reference to sovereign bond instruments, interpretative yardsticks, such as contribution, risk and territoriality as identified either in investment treaties or in the ICSID Convention may afford a balanced consideration taking into account of both the modern development of financial markets and policy decisions regarding the extent to which treaty protection should be provided.

Finally, the checks and balances of sovereign debt restructuring by investment tribunals are also implemented as a matter of the interpretation of the substantive provisions. Given that investment arbitral jurisprudence has incorporated the doctrine of margin of appreciation, the study has concluded that a deferential review of policy decision-making by debtor sovereigns is available and appropriate for arbitral tribunals. Concretely, the arbitral jurisprudence on the provisions providing standards of protection and defence on merits may afford a balancing exercise that enables safeguarding the legitimate policy of debt restructuring without sacrificing bondholder protection.

The second chapter investigates the original model underlying the ECJ’s procedural and organisational law by describing the mandate and the procedural and organisational setup of the ECJ’s predecessor, the Court of the European Coal and Steel Community. The chapter shows that the Coal and Steel Court squarely fit into the liberal model of court decision-making developed in the first chapter of the book. Its primary role was to protect the rights and interests of individual litigants, notably the Member States. Accordingly, the Coal and Steel Court was equipped with a procedural and organisational law borrowed from the International Court of Justice, steered towards the equal representation of the Member States in the proceedings. The chapter describes in detail how the idea of Member State representation coined the conception of judges as state representatives, a narrow understanding of who may participate in court proceedings and a design of the deliberations that aimed to give all judges equal influence.

This chapter argues that racialised constructions of the Other deriving above all from European colonialism remain central to problems of climate, water and environmental security and insecurity, in both theory and practice. Thus on the one hand the chapter demonstrates that environmental and climate security discourse is premised on, and still today structured around, racialised assumptions about history, geography, nature and freedom. And on the other hand it shows that racialised colonial understandings of foreign peoples and their environments played a crucial role in constituting modern political identities, with reverberations for patterns of environmental security and vulnerability which are still very much with us today. This latter argument is developed through a case-by-case and comparative analysis of the historical and political–ecological origins of the major identity divisions within post-colonial Israel–Palestine, Cyprus and Sudan, this paving the way, in conclusion, for a set of reflections on the politics of identity and alterity under circumstances of accelerating climate change.

One of the standard responses to eco-crisis and environmental security narratives is that the environment can be a source of cooperation as much as of conflict, of amity, not just of enmity. This chapter interrogates this liberal rejoinder to Malthusian and eco-pessimist reasoning. The chapter critiques functionalist and related accounts of peacemaking via water cooperation and argues that water is neither innately cooperation-inducing nor particularly important within peacemaking today. It shows, moreover, that because peace processes are themselves often deeply problematic – in extreme, reproducing or radicalising pre-peacemaking divisions and attendant patterns of conflict, appropriation and inequality – so the same applies to peacebuilding and cooperation relating specifically to water. These arguments are developed through analysis of the Israeli–Palestinian Oslo peace process, the Annan process on Cyprus and Sudan’s Comprehensive Peace Agreement. Water scarcities, the chapter shows, have not historically been a significant force for peace; by extension, it is argued in conclusion, climate change–induced scarcities are unlikely to have such effects either.