Towards a New International Law of the Atmosphere?

Inclusion of the topic ‘protection of the atmosphere’ in the current work programme of the UN International Law Commission (ILC) reflects the long overdue recognition of the fact that the scope of contemporary international law for the Earth’s atmosphere extends far beyond the traditional discipline of ‘air law’ as a synonym for airspace and air navigation law. Instead, the atmospheric commons are regulated by a ‘regime complex’ comprising a multitude of economic uses including global communications, pollutant emissions and diffusion, in different geographical sectors and vertical zones, in the face of different categories of risks, and addressed by a wide range of different transnational institutions. Following several earlier attempts at identifying crosscutting legal rules and principles in this field (by, inter alia, the International Law Association, the UN Environment Programme, and the Institut de Droit International), the ILC has now embarked on a new codification/restatement project led by Special Rapporteur Shinya Murase – albeit hamstrung by a highly restrictive ‘understanding’ imposed by the Commission in 2013. This article assesses the prospects and limitations of the initial ILC reports and debates in 2014 and 2015, and potential avenues for progress in the years to come

Trade in the balance: reconciling trade and climate policy: report of the Working Group on Trade, Investment, and Climate Policy

This repository item contains a report published by the Working Group on Trade, Investment, and Climate Policy at The Frederick S. Pardee Center for the Study of the Longer-Range Future at Boston University, and the Global Economic Governance Initiative at Boston University.This report outlines the general tensions between the trade and investment regime and climate policy, and outlines a framework toward making trade and investment rules more climate friendly. Members of the working group have contributed short pieces addressing a range of issues related to the intersection of trade and climate policy. The first two are by natural scientists. Anthony Janetos discusses the need to address the effects of international trade on efforts to limit the increase in global annual temperature to no more than 2oC over preindustrial levels. James J. Corbett examines the failure of the Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) to adequately address the environmental implications of shipping and maritime transport. The next two pieces are by economists who examine economic aspects of the trade-climate linkage. Irene Monasterolo and Marco Raberto discuss the potential impacts of including fossil fuel subsidies reduction under the TTIP. Frank Ackerman explores the economic costs of efforts to promote convergence of regulatory standards between the United States and the European Union under the TTIP. The following two contributions are by legal scholars. Brooke Güven and Lise Johnson explore the potential for international investment treaties to redirect investment flows to support climate change mitigation and adaptation, particularly with regard to China and India. Matt Porterfield provides an overview of the ways in which both existing and proposed trade and investment agreements could have either “climate positive” or “climate negative” effects on mitigation policies. The final article is by Tao Hu, a former WTO trade and environment expert advisor for China and currently at the World Wildlife Fund, arguing that the definition of environmental goods and services’ under the WTO negotiations needs to be expanded to better incorporate climate change

Ghana TRIPS Over the TRIPS Agreement on Plant Breeders' Rights

This document is the Accepted Manuscript version of the following article: Thaddeus Manu, 'Ghana Trips Over the TRIPS Agreement on Plant Breeders' Rights', African Journal of Legal Studies, Vol 9 (1): 20-45, July 2017. Under embargo. Embargo end date: 31 July 2019. The final, published version is available online at doi: https://doi.org/10.1163/17087384-12342070. Published by BRILL.The premise under which the global IP system is validated has often focused on a traditional materialistic approach. While this seems to find legitimate support in economic reasoning, such a fundamental view also appears to contradict a related social norm claim which dictates that society ought to be shaped by appropriate values rather than economic rubrics. Although Ghana is not a signatory member of the UPOV Convention, there is explicit evidence that the PBRs Bill under consideration in Parliament contains provisions modelled on the UPOV Act 1991 rather than the potentially flexible and “effective sui generis system” in TRIPS. This paper aims to contribute to a recently active area of discussion on the topic by examining the consequences of stringent legislation on PBRs in the absence of adequate safeguard measures to protect public interests. Consequently, the hypothesis of this paper rests on the argument that every system needs checks and balances and the legislative system is no exception; therefore, social policy matters must be integrated into the so-called PBRs Bill in order not to undervalue public interests. To conclude, the author presents an argument based on a logical balance that ought to be found on the path to promulgating such legislation.Peer reviewe

Trade in the balance: reconciling trade and climate policy: report of the Working Group on Trade, Investment, and Climate Policy

This repository item contains a report published by the Working Group on Trade, Investment, and Climate Policy at The Frederick S. Pardee Center for the Study of the Longer-Range Future at Boston University, and the Global Economic Governance Initiative at Boston University.This report outlines the general tensions between the trade and investment regime and climate policy, and outlines a framework toward making trade and investment rules more climate friendly. Members of the working group have contributed short pieces addressing a range of issues related to the intersection of trade and climate policy. The first two are by natural scientists. Anthony Janetos discusses the need to address the effects of international trade on efforts to limit the increase in global annual temperature to no more than 2oC over preindustrial levels. James J. Corbett examines the failure of the Trans Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) to adequately address the environmental implications of shipping and maritime transport. The next two pieces are by economists who examine economic aspects of the trade-climate linkage. Irene Monasterolo and Marco Raberto discuss the potential impacts of including fossil fuel subsidies reduction under the TTIP. Frank Ackerman explores the economic costs of efforts to promote convergence of regulatory standards between the United States and the European Union under the TTIP. The following two contributions are by legal scholars. Brooke Güven and Lise Johnson explore the potential for international investment treaties to redirect investment flows to support climate change mitigation and adaptation, particularly with regard to China and India. Matt Porterfield provides an overview of the ways in which both existing and proposed trade and investment agreements could have either “climate positive” or “climate negative” effects on mitigation policies. The final article is by Tao Hu, a former WTO trade and environment expert advisor for China and currently at the World Wildlife Fund, arguing that the definition of environmental goods and services’ under the WTO negotiations needs to be expanded to better incorporate climate change

Ubi Remedium, Ibi Ius at the WTO

The WTO law of remedies for violation appears incoherent. States that fail to comply with their obligations are subject to WTO-authorized retaliation. First, this retaliation takes the inefficient form of blocked trade by the complaining state. This remedy is unlikely to be useful to developing countries. Second, the amount of trade blocked by the violation is often used as the measure of authorized retaliation. This measure is not necessarily incentive compatible, as it is not necessarily linked to welfare. Thus, its use may result in inefficient breach, or inefficient compliance, with WTO law. Third, only states that engage in dispute resolution proceedings are authorized to retaliate, artificially reducing the possible incentives to comply. Fourth, authorization to retaliate is granted only prospectively, and there are generally no formal remedies for damages accruing before adjudication and the passage of permitted time for compliance. This also artificially reduces incentives to comply. This paper analyzes the rationale for, and structure of, welfare-based remedies that could form the basis for cash compensation in WTO law

WTO Law on Subsidies and Local Content Rules in the Renewable Energy Sector

The WTO legal framework on subsidies and local content requirements applies to renewable energy projects executed by Member States globally. This article analyses the constrains that WTO law places on the support Member States can provide, through local content requirements in subsidy regimes used for renewable energy projects. Considering the growth of offshore renewable energy globally and the widespread use of local content requirements, it is crucial to determine whether the WTO rules will affect offshore renewable energy growth globally. The article analyses disputes involving various forms of renewable energy between Member States. Only one dispute analysed, the recently resolved dispute between the UK and the EU directly relates to offshore renewable energy. Through analysis of disputes involving other types of renewable energy, an inference may be made regarding the application of the WTO legal regime to offshore renewable energy developments

TAX DISPUTES IN INVESTOR-STATE ARBITRATION

This thesis examines tax disputes adjudicated by investor-state tribunals. I argue that the nature of taxation – a compulsory levy – is unlike any other state regulatory measure such as an environmental or a public health measure. I suggest that tax-related investment disputes constitute a unique category of foreign investment disputes, and that investment tribunals should recognize them as such. Not all arbitral tribunals, however, acknowledge the distinct character of taxation which leads to inconsistent jurisprudence. Apart from the nature of tax, tax carve outs are another important factor that distinguish tax- related investment disputes from other investment disputes. I show that tax carve outs are included in IIAs in order to prevent overlap with tax treaties. Tax carve outs determine the scope of the tribunal’s jurisdiction, and limit the substantive obligations that are applicable to a state’s taxation measures; but since tax carve outs are worded differently and vary in scope, each arbitral tribunal needs to establish its jurisdiction carefully. While some tribunals have been careful to clearly demarcate their jurisdiction, others have been imprecise. An analysis of the arbitral awards reveals that the approaches of investment tribunals in tax- related investment disputes differ as to expropriation, fair and equitable treatment, and non- discrimination. For expropriation claims, some tribunals regard tax measures as a unique category and correctly set a high threshold for taxation measures to qualify as expropriation. With respect to non-discrimination and fair and equitable treatment claims, investment tribunals tend to assimilate tax measures to all other measures. These differences reflect not only the distinct nature of the obligations, but also tribunals’ failure to recognize that tax-related investment disputes constitute a unique category. In the future, it is likely that the lower threshold for fair and equitable treatment and non- discrimination will lead investors to rely primarily on these standards in tax-related investment disputes. Additionally, international tax law (ITL) has played a limited role in tax-related investment disputes. Investment tribunals, instead, prefer to rely on WTO jurisprudence in their analysis and findings. I argue that there are general principles of law in ITL which tribunals should include in their analysis

The Multilateral Standard of Review: Export Restrictions, GATT Exceptions and Exemptions

This dissertation argues for the adoption of a new interpretative standard that urges the WTO adjudicator to explicitly take account of the economic heterogeneity of the WTO Membership when construing exemption provisions in the GATT 1994. In particular, the judicial decision maker should construe and interpret exemption provisions using the embedded standard of review, such that the Member States’ economic conditions enlighten the contextual interpretation of the language of the provision. This multilateral standard of review compels the adjudicator to accord conditional deference to developmental policies, as applied by a Member State in expression of its preferred economic strategy to expand the trade and production of goods and services. This dissertation examines the history of the standard of review in the GATT 1947 and GATT 1994 in order to critically examine its application to the construction and interpretation of the exemption provision of Article XI:2(a) GATT 1994. The proposed multilateral standard of review overcomes the post-modern critique of judicial practice by emphasizing the collaborative intent of the Membership, as revealed through the adjudicator’s understanding of the object and purpose of the agreement

Reclaiming state power to bridge governance gaps in global trade

Includes bibliographical references.An astute understanding of history is not required to grasp that global trade is not a new phenomenon. As a very young student in American schools, I still recall learning about the caravans of traders trekking across the Silk Road, about the merchant traveller Marco Polo, about the misplaced aspirations of Christopher Columbus and the resulting Columbian Exchange between Europe and the Americas. This is an oft-mythologized and sometimes flatly fabricated period of history,1 but there are basic truths at the base of it all. There were certainly men embarking on difficult journeys across vast ocean stretches, carrying goods from one continent to another with the hope of striking it rich (or at least making enough to buy themselves a good time at the next harbour). There were certainly people who profited, and plenty more who were exploited. But while global trade is not new, the structure and volume of global trade has changed drastically during recent decades. More money is at stake, and so is a greater swath of humanity. Complex global value chains2 have sprouted, in which a single product may contain fingerprints from dozens of countries when it finally lands on retail shelves. In this dissertation I am concerned with the fate of workers that toil anonymously at the base of these global value chains. But my primary focus is to contest a myth, though it has nothing to do with Christopher Columbus. Rather, the dominant narrative surrounding contemporary global trade suggests that regulation of such is beyond our reach. Due to the evolving structure of global trade, ‘governance gaps’ have emerged. This begs many questions: Who is responsible for achieving a remedy when things go wrong, when a factory collapse kills hundreds of workers or when the makers of high-priced fashion aren’t paid a living wage? Do we turn to the state that shelters the corporation, even if the wrongdoing occurs outside their jurisdiction? What about the state where the operations are based? Can they impose their will on corporations that are sheltered elsewhere? Are the corporations themselves responsible, even when they are not directly involved in outsourced operations? Are local manufacturers at fault if they are acting at the behest of a more powerful entity