The WTO Law on Subsidies and Climate Change: Overcoming the Dissonance?

The worrisome rise in the number of trade disputes relating to climate change policies leaves no doubt as to the relevance of WTO law to climate change policies. Perhaps the most contentious aspect of the relationship between trade law and climate change policies is the issue of subsidies — while many climate change policies rely heavily on the use of subsidies, WTO law considers subsidies a distortive force and aspires to limit the use of such measures. This article evaluates the compatibility of several climate change programs in light of the WTO law on subsidies. It argues that the current legal framework is unsuitable for the promotion of climate change abatement objectives. This is because relevant considerations such as the urgency of the climate change problem, the many market failures embedded in climate-friendly goods and services, and the political reality currently abundant in many states, are entirely disregarded by the WTO law on subsidies. The recent Canada FIT Panel and Appellate Body Reports seem to accept this critique, and consequently present a modified approach to the interaction between the WTO law on subsidies and the climate change challenge. Another promising route of action can be found in the model reflected in an agreement recently concluded between the EU and China, in which, prima facie, the parties decided to include non-commercial considerations as relevant for their own trading relations. These two recent developments may signify a change in the approach towards the interaction between trade law and climate change, as well as a realisation that the current legal framework should be re-evaluate

Innovative Regulatory Frameworks Promoting Green Economy for Sustainable Development and Poverty Eradication in Europe

The political Rio 20 Declaration challenges lawyers and legal professionals around the world to think creatively about the legal preparedness for the green economy. To this end, this study focuses on highlighting the legal changes that are being adopted in Europe, at national and regional levels, to facilitate the transition to a greener economy. The purpose is thus to point out the challenges that domestic governments face in transitioning to a greener economy and to research the means by which these challenges can be met. This compendium gathers recent practices in legal and institutional reform that exemplify promising methods of addressing green economy measures

The EU Commission and the Fragmentation of International Law: Speaking European in a Foreign Land

The debate on the fragmentation of International Law has been relatively dormant in recent years. However, recent events demonstrate not only that this debate should be re-awoken, but also that some key elements in this debate must be reconsidered. Notably, while the fragmentation of International Law has often been discussed from the perspective of courts and judges, this paper examines the view and the impact of a different institutional actor – the Commission of the European Union. This paper analyses a series of amicus briefs that were submitted in a number of investment treaties-based cases. These briefs, which were recently disclosed to the author, reflect a certain ‘radicalisation’ of the European Court of Justice’s view concerning the place and the role of the EU legal system within the international legal order. This paper discusses the problematic implications that the Commission’s approach may have on the international legal order, as well as possible future pathways

The management of third-party amicus participation before international criminal tribunals: Juggling effectiveness and legitimacy

Our article examines the practice of third-party amicus participation before international criminal tribunals (icts) and considers its impact on the efficiency and legitimacy of the international criminal process. Our review focuses on the provenance of third-party interventions, their nature and their impact (if any) on the reasoning of the ict in a given case. We note that a significant proportion of the amicus submissions are from western non-governmental organizations and individuals, rather than from the communities most directly affected by the work of icts. We consider the implications of this finding in the context of the well-documented ‘image problems’ that plague icts. We find that icts tend to manage the participation of third-party amici fairly judiciously, and conclude with some suggestions regarding how the engagement between icts and amici could be improved to enhance both the efficiency and the legitimacy of international criminal proceedings.</jats:p

Policy coherence and the promotion of foreign direct investment in the renewable energy sector: Lessons from Europe

This article explores the various home-country measures (HCMs) offered by public international law that can, or potentially could support foreign direct investment in the renewable energy sector. A ‘bird’s eye’ evaluation of a variety of HCMs reveals that while international law indeed offers many legal tools to support investors’ needs, the current legal framework is fragmented; legal instruments are designed in isolation and the potential for mutually-supportive, synergetic policies is not being explored. This fragmented reality is in contradiction to the notion of Policy Coherence for Development, which is increasingly gaining support in Europe and elsewhere. It is suggested that additional research be conducted on the manner in which HCMs could be connected in order to maximise their potential and boost investment in renewable energies in the developing world

UK 1986 Agriculture Act and Target 11 of the Aichi Targets

The UK 1986 Agriculture Act addresses, among other issues, the adverse environmental impact created by the intensification and modernisation of the agricultural sector. Art. 18 of this Act established the Environmentally Sensitive Areas (ESA) scheme, under which protected areas were identified primarily on the basis of biodiversity, landscape and cultural heritage importance. Farmers operating within these areas were incentivised to adopt ‘greener’, generally less intensive agricultural methods, that helped retain and enhance these outcomes. In 1991 the ESA scheme was joined by a sister scheme, the Countryside Stewardship Scheme, and both were replaced in 2005 by the Environmental Stewardship Scheme. Such schemes are now known generically as agri-environment schemes and form a compulsory element of the Common Agriculture Policy (CAP). The succeeding schemes, it should be noted, maintained the ESA system’s most important features. The ESA system was successful in fulfilling some of the objectives of Target 11, most notably the protection of biodiversity within specified areas, and the equitable management (including benefit sharing) of these areas. Furthermore, the ESA model could potentially support the connectivity of protected areas, where they are separated by farmlands. The model presented by the ESA model, if correctly adjusted, can be beneficial especially to states with vast farmlands and a modernised (or modernising) agricultural sector. States wishing to adopt this model however, should be aware of the financial cost involved in its implementation, and ensure that sufficient attention is given to the technical designing and the precise management prescriptions that this plan requires

The Teitiota Case and the limitations of the Human Rights framework

The decision of the UN Human Rights Committee (HRC) in Teitiota v New Zealand has been widely hailed as heralding a major development in the jurisprudence on ‘climate refugees’.[1] Even more nuanced commentators have asserted that it represents a significant, if imperfect, step forward in patching together a regime of protection for the increasing numbers of people who are being displaced by the effects of climate change. No less a figure than Filippo Grandi, the current head of the UN High Commissioner for Refugees (UNHCR) described the HRC decision as meaning: ‘if you have an immediate threat to your life due to climate change, due to the climate emergency, and if you cross the border and go to another country, you should not be sent back because you would be at risk of your life, just like in a war or in a situation of persecution’.[2] Would that this was so, but in our view, not yet. Moreover, there is an obvious problem with these optimistic views of the HRC decision: in spite of quite substantial evidence of serious harm in which climate change is a major factor, the claim for protection failed. In this article, we therefore question these evaluations and ask whether the HRC decision is a welcome incremental step forward, or whether it adds little to the already meagre human rights jurisprudence in regards to climate refugees. We will give a brief precis of the background to this case, and of the issues that were raised at various points throughout the litigation. We will then highlight the key sticking points that prevented the claim for protection being successful. Finally, we will offer some critical analysis of the HRC decision, and suggest why the human rights paradigm, certainly as it is currently conceived, may present some insuperable barriers for climate refugees to seek protection within it