This chapter argues there is a “pull” toward cross-fertilization on procedural questions, meaning cross-fertilization between international courts and tribunals may be more likely for procedural issues than in substantive law. It describes cross-fertilization in relation to procedural issues. Procedural cross-fertilization is a process and is not just about borrowing by adjudicators, but involves contributions by a range of actors. Three considerations facilitate procedural cross-fertilization and even make it somewhat likely: the discretion of adjudicators on procedural issues, adjudicators’ duty to decide numerous procedural issues, and sociological considerations concerning the circulation of a small number of personnel across multiple fora. However, two considerations counterbalance adjudicators’ broad discretion. On one hand, control mechanisms operated by states push adjudicators to remain faithful to their mandates, limiting the space for procedural cross-fertilization. On the other hand, procedural cross-fertilization feeds and is fed by an emerging model of international due process that is affecting all areas of international adjudication.

This chapter focuses on the environmental diplomacy surrounding the World Commission on Environment and Development, popularly known as the “Brundtland Commission.” This process popularized the concept of sustainable development. The chapter begins by detailing the substantial changes seen in international environmental conditions through the mid-1980s, brought about largely by the Third World Debt crisis. These shifts created a rapidly deteriorating global environmental context and necessitated significant changes in institutional arrangements. The need for institutional change was a central finding of the important 1987 “Brundtland report,” titled Our Common Future. The Brundtland Commission highlighted a rapid deterioration in the world environment and underlined the need for major institutional change. Some actors sought to realize such change at the United Nations General Assembly in 1987, when the report and its call for action were presented to world leaders. Coordination was hindered, however, by divergent expectations and the absence of a Temporal Focal Point. While states were incentivized to cooperate rapidly to address problems in global environmental governance, the institutional status quo prevailed.

The conclusion summarizes and discusses the principal findings of the book, highlighting the role of temporal coordination dilemmas and Temporal Focal Points in patterns of continuity and change in international institutions. After relating these findings to other theoretical approaches, the chapter discusses the theoretical implications of the analysis contained in this book for the study of change in international institutions. The chapter provides an extended discussion of policy implications, including how international actors can employ the logic of temporal coordination in modernizing global institutions in the current international setting. It concludes with an analysis of the current context in global environmental and sustainable development politics, analyzing progress in combatting global challenges, such as climate change and the loss of biodiversity, and implementing the Sustainable Development Goals (SDGs). It argues that the international community has incentives to realize institutional change and that a Temporal Focal Point could soon emerge.

This chapter addresses the void in the literature regarding the ways in which international courts and tribunals handle the admission of new media evidence. A survey of the instances in which these forums have responded to this evidence reveals a wide range of approaches. While there are compelling reasons to endorse the general approach of the international legal system to procedural fragmentation – namely, allowing integration to occur informally and unsystematically as needed – this approach reaches its limit when it comes to the evaluation of new media evidence. Rapid technological change heightens the risk of falsified material being introduced. The proactive sharing of lessons learned across and within international courts and tribunals is a matter of urgency.

This chapter explores forum choice at the international and regional levels, advancing three arguments. First, forum shopping as an arbitrary exercise or an exercise bordering on abuse of rights is rare. Second, parties nearly always have legitimate reasons for their forum choice. Factors impacting forum choice include receiving a favourable decision, the finality of that decision and the prospects for enforcement. As regulators, states should deal with the challenge of overlapping jurisdiction among international courts and tribunals (ICTs) by regulating forum choice explicitly. Third, ICTs have to assess the reasons proffered by the litigating parties, whereby they may consider precedent-setting and long-term repercussions, so as to accept or decline jurisdiction. Forum shopping can raise issues of legitimacy, fairness, cost and integrity. Forum choice, however, is a fundamental obligation of counsel to a client, in order to search for the tribunal or jurisdiction that will best recognize its rights, consistent with the fair administration of justice. Healthy competition between jurisdictions is overall beneficial to the evolution of ICTs.

No governing international text or generally accepted doctrine defines the procedure to be applied by international courts and tribunals. Yet these institutions’ tasks pose common challenges: providing notice of a dispute, defining its nature and scope, determining the legal rules, marshalling and assessing evidence, finding facts and applying legal rules to them, and then recording and communicating the result. There often is substantial similarity – indeed, convergence – in how courts and tribunals go about these tasks. This chapter examines some of the factors and institutions that contribute to this procedural harmonization among institutions dealing with disputes between parties from different countries and legal cultures. It looks at the shared historical foundations of important procedural practices, the influence of intergovernmental and nongovernmental organizations, the roles individuals sometimes play in transmitting “legal technology” between institutions, and the effect of competition among institutions seeking to meet the needs of their “customers.” It also notes areas where procedure can diverge, as users look for new ways to address procedural problems.

This chapter introduces the concept of Temporal Focal Points in explaining change in international institutions. In doing so, it elaborates theoretically the arguments contained in the introductory chapter. It models the coordination challenge facing states as a stag hunt game, where international actors can all benefit if they are able to cooperate. In hunting stag – or, engaging in institutional change efforts – actors can move to a Pareto-superior, payoff-dominant equilibrium. The challenge that they face is that if they hunt stag and others do not, they will expend scarce assets and end up significantly worse off. The risk of acting cooperatively when others do not leads actors to persist at inferior, risk-dominant equilibria. This can change suddenly, however, when actors reach a temporal convergence of expectations. The convergence is often facilitated by the arrival of Temporal Focal Points. The heightened probability of successful coordination leads to sharp increases in political and analytical investments. The chapter concludes with a discussion of methodology and case selection.

Access to affordable water and sanitation services is crucial for the realization of the human rights to water and sanitation. Where these services are available but not affordable, people will not be able to use sufficient amounts of water and adequately maintain latrines, or will turn to cheaper, unsafe sources or practices. Another consequence is that people, in order to support the costs of water and sanitation, might compromise the realization of other human rights such as food, housing, health or education. However, the issue of affordability does not always receive the attention it deserves. As people will go to great lengths to pay for water to ensure their survival and health, there is often an assumption that people will obtain the water they need even without the state support.

This chapter examines the nature of the obligation of states to progressively realize the human rights to water and sanitation, aiming at informing public policies on the operationalization of that obligation. Even with more than one decade since the General Assembly explicitly recognized water and sanitation as a human right, it is often not clear how to unpack the generality of the obligation of progressive realization of human rights, particularly in the era of the 2030 Agenda. Both the SDGs and the progressive realization obligation have been criticized for being aspirational goals, the former because of the significant margins of discretion given to each state to set their own national targets and the latter because it is viewed as vague, having no defined time frame or pace of implementation and therefore not imposing a clear positive obligation on states (Porter, 2015).

Even when they are not directly related to the provision of water and sanitation services, business activities can be an important driver for the realization or, more frequent, violation of the HRtWS. The different ways those economic activities engage in development projects can affect the way people, notably traditional communities, access water and sanitation services. Usually, when confronting the economic and social benefits of those projects with the human rights risks for the affected communities, the mainstream narrative overestimates the former and makes the latter invisible. Among those business activities, megaprojects have a prominent role in terms of concerns for the HRtWS.

This chapter focuses on the 1992 United Nations Conference on Environment and Development (UNCED), the Rio “Earth Summit.” It shows how, despite incentives to address institutional dysfunction and mounting global environmental problems by institutionalizing sustainable development within the United Nations system, divergent expectations persisted until momentum built toward UNCED. The Rio conference, which marked the twentieth anniversary of the 1972 Stockholm conference, emerged as a Temporal Focal Point in United Nations environmental politics. Convergent expectations triggered a significant increase in political and analytical investments in change processes from state and non-state actors, leading to a transformation of the informational and political context. These investments produced significant institutional change, including the creation of the Commission on Sustainable Development (CSD) and the institutionalization of the World Bank-operated Global Environment Facility. States also launched the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity, a set of Forest Principles, and the United Nations Convention to Combat Desertification.