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Home Archive for category "International Environmental Law"

A Proposal for a Multilateral Border Carbon Adjustment Scheme that is Consistent with International Trade Law if the Trump Administration withdraws from the Paris Agreement

Published on May 22, 2017        Author: 

On the campaign trail, President Trump repeatedly promised to “cancel the Paris Climate Agreement and stop all payments of US tax dollars to UN global warming programs”. He had previously called global warming a “hoax” and a “con” numerous times, and “a concept created by and for the Chinese in order to make US manufacturing non-competitive.” Although Trump quietly dropped his pledge to cancel the Paris Agreement from his 100-day “Contract with the American voter”, and has since said that he “has an open mind” on the Paris Agreement, there remains at present a fierce debate within his administration on whether to withdraw, with no final decision expected before the end of the G-7 summit on May 26 and 27.

The essential thesis of this blog post, which summarizes a longer paper available on SSRN, is that international trade law will permit border carbon adjustments (BCAs) on products from the US, if the Trump Administration withdraws from the Paris Agreement, so long as these schemes are well-designed to avoid the World Trade Organization (WTO) prohibitions on arbitrary or unjustified discrimination and on disguised protectionism, as interpreted by the WTO’s Appellate Body in its US–Shrimp report and US–Shrimp 21.5 decision. This post proposes a multilateral border carbon adjustment scheme (MBCA) that other countries could agree to impose on the US should it withdraw from the Paris Agreement.

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The US and the Paris Agreement: In or Out and at What Cost?

Published on May 10, 2017        Author: 

Ever since President Donald Trump won the US elections, climate pundits have been playing the ‘will they, won’t they’ game in relation to US withdrawal from the hard-won and widely accepted 2015 Paris Agreement. The political need of the hour, it appears, is to keep the US in, and while that is certainly a desirable goal, it is time to ask, ‘at what cost’?

The US decision on whether it will withdraw from the Paris Agreement is imminent, but in advance of this decision President Trump has begun the process of dismantling Obama-era domestic regulations designed to address US greenhouse gas emissions. In the circumstances, even if the US decides to remain in the Paris Agreement, it would need to either lower the ambition of its nationally determined contribution (NDC), or be ready to fall short of it. This is at the heart of the current controversy animating the climate world – can a state downgrade its NDC under the terms of the Paris Agreement? American legal advisors in an understandable bid to keep the US in the Paris Agreement, are arguing that it can. I would like to argue that a different interpretation, one more in keeping with the object, purpose and spirit of the Paris Agreement, is possible, and even desirable.

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Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Published on January 3, 2017        Author: 

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order Read the rest of this entry…

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What Will a Trump Administration Mean for International Agreements with the United States?

Published on December 13, 2016        Author: 

On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.

Paris Agreement on Climate Change

On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board. Read the rest of this entry…

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A Critical Assessment of Colombia’s Advisory Request before the IACtHR – and Why It Should Be Rejected

Published on October 25, 2016        Author: 

On 14 March 2016 Colombia filed an Advisory Opinion request before the Inter-American Court of Human Rights (IACtHR). The request poses three questions, which can be summarised as follows: The first question asks whether the American Convention on Human Rights (ACHR) entails extra-territorial obligations for a State when interpreted in light of a “treaty-based environmental protection system to which that State is a party [also],” and if it does, what are its incidences vis-à-vis the elements of state responsibility (attribution and breach).

The second question is a restatement of the first one, but zeroes in on conduct of states that might do “serious damage to the marine environment” and the implications thereof for inhabitants of “the coast and/or islands of another State party” under articles 4(1) (right to life) and 5(1) (personal integrity) ACHR; in other words, the question enquires whether, and if so how, IHRL might serve as vehicle for the extra-territorial application of IEL.

Building upon the ICJ’s environmental law developments in Pulp Mills, a final question enquires whether environmental obligations under articles 4(1) and 5(1) ACHR entail the duty to conduct environmental impact assessments (EIA). Read the rest of this entry…

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On the Paris Agreement’s Imminent Entry Into Force (Part II of II)

Published on October 12, 2016        Author: 

This is Part II of a two-part post.

What are the Consequences of the Paris Agreement’s Entering into Force?

The Paris Agreement is to enter into force on 4 November 2016, 30 days after the second of its two thresholds was passed on 5 October 2016. On that day, the emissions covered by those Parties to the Convention that ratified or accepted the Agreement amounted to 56.75% of global total emissions; crossing the 55% bar required by the agreement. (see Part I)

So, what does this mean? I would like to highlight 10 points.

First of all, the Agreement becomes international law. It is an international treaty, i.e. an international agreement concluded between states in written form and will be governed by international law (Art. 2.1 (a) Vienna Convention on the Law of Treaties – VCLT).

While 197 Parties to the UNFCCC adopted the Paris Agreement and 191 signed it so far, it is important to note that it will only bind those 74 states and the EU (as of 7 October 2016) which have expressed their consent to be bound by it through ratification, acceptance or approval. Each of these states for which the Agreement is in force will then become a “Party” to the Agreement. This means that despite the commonly used adage, it is not a universal agreement. Rather, at the time of entry into force, it captures only about 2/5 of the Parties to the Convention, with others hopefully joining over time.

According to the principle of “pacta sunt servanda”, Parties are obliged to keep the treaty and must perform it in good faith (VCLT, Article 26). Good faith suggests that Parties need to take the necessary steps to comply with the object and purpose of the treaty. Neither can Parties invoke restrictions imposed by domestic law as reason for not complying with their treaty obligations. Read the rest of this entry…

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On the Paris Agreement’s Imminent Entry Into Force (Part I of II)

Published on October 11, 2016        Author: 

This is Part I of a two-part post.

Rapid Entry Into Force or the “Rush to Ratify”

The Paris Agreement will enter into force on 4 November 2016. The agreement requires the deposition of instruments of ratification or acceptance by at least 55 Parties to the UN Framework Convention on Climate Change accounting for at least 55% of global greenhouse gas emissions. With the latest ratifications by the EU, Canada and New Zealand respectively – only a couple of days after India deposited its instrument of ratification – these conditions were fulfilled yesterday, on 5 October 2016. By that day, 72 Parties to the Convention had deposited their instruments accounting in total for 56,75 % of total global greenhouse gas emissions. The agreement will enter into force 30 days from this day – less than a year since its adoption!

Such rapid entry into force arguably is record-breaking; unparalleled in multilateral treaty making – environmental or not.

The adoption of Paris Agreement in December 2015 was hailed as a victory of multilateralism; as a sign of hope that the states of this world can get together and cooperate in the face of a global commons challenge. Yet, in Paris negotiators were in the dark about how long it would take before the agreement would become law; an international treaty. Certainly no-one expected this to happen within less than a year or only a little over six months since it was opened for signature on 22 April 2016 in New York.

It was no small achievement that states managed to reach an agreement on such complex issue as climate change. Yet, garnering their political will behind its legal bindingness is a significant feat which calls for some reflection.

How was it possible? Read the rest of this entry…

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One Swallow Does Not a Summer Make, but Might the Paris Agreement on Climate Change a Better Future Create?

Published on July 25, 2016        Author: 

Note from Joseph Weiler, Editor-in-Chief of the European Journal of International Law:

I have invited Laurence Boisson de Chazournes, member of the EJIL Editorial Board, to write the Editorial for the latest issue of EJIL (Vol. 27 (2016) No. 2).

The Conference of the Parties in Paris in December 2015, with the subsequent adoption of the Paris Agreement on Climate Change, was a significant event, from both a political and a legal perspective. It is politically significant not least because it is the first universal agreement on climate change, involving 195 countries and the EU, to be adopted. However, the event was also legally significant for a host of reasons upon which this Editorial will touch. Overall, it represents an evolution in legal technique, especially with regard to the measures and procedures used to achieve the intended objective. Legal events like this are noteworthy in the way that they introduce innovations and provoke reflection.

The Paris Agreement is indeed an interesting legal creature. In trying to shape a better future than is foreseeable, if present consumption patterns of fossil fuels continue, the Agreement adopts a legal technique that breaks new ground. It envisages the elimination of the use of fossil fuel energy by the end of the 21st century. This would be quite an achievement, given that fossil fuel energy has shaped the economy of the 20th century in so many different ways. The Agreement is intended to come into force in 2020, and the objective it sets is to be achieved in the second part of this century, which is indeed several decades from now. It goes without saying that a great number of us will no longer be here when the goals of the Agreement are to be realized, and we are thus being asked to act for the generations to come. Interestingly, in addition to building a long-term future, the Agreement makes provision for meetings, as well as for tasks to be achieved at these meetings, in the near future. Some of these meetings will take place in 2018, 2023, 2025 and thereafter. The path to the longer-term objective is thus paved with the fulfilment of shorter-term commitments. Read the rest of this entry…

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Filed under: Climate Change, Editorials, EJIL
 
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Environmental Aspects of the South China Sea Award

Published on July 21, 2016        Author: 

Earlier posts (here and here) have provided a general overview of the much-anticipated 12 July Award of an UNCLOS Annex VII Tribunal in the Philippines v China case. This post will focus on the environmental aspects of the Award. The Tribunal’s consideration of environmental issues is largely contained in the part of the Award dealing with the Philippines’ submissions 11 and 12(B) ([815]-[993]). While these submissions were phrased differently, they both sought declarations that China had violated its obligations under UNCLOS to protect and preserve the marine environment (submission 11 related to various locations whereas submission 12 related to Mischief Reef). The Philippines’ environmental claims related to two aspects of China’s conduct: firstly China’s alleged toleration or support of environmentally harmful fishing practices by its nationals; secondly, the environmental impact of China’s land reclamation and construction activities.

Treaty Interpretation and Due Diligence

The Tribunal’s interpretation of the general obligation under UNCLOS Article 192 to ‘protect and preserve the marine environment’, and the more specific obligations under Article 194 regarding marine pollution, embedded these provisions within wider environmental law. The Tribunal noted that these obligations require states to exercise due diligence and to ensure that activities occurring within their jurisdiction and control do not harm the marine environment, referring to ITLOS’ 2015 Advisory Opinion regarding a state’s obligation to investigate reports by another state of non-compliance by its vessels with provisions of the Convention concerning protection of the marine environment, and the ICJ’s remark in Pulp Mills on ‘due diligence’ requiring a ‘certain level of vigilance’: [944].

In interpreting Article 194(5) of UNCLOS, which requires states to ‘protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species’, the Tribunal drew on several aspects of wider international environmental law. This included having regard to the definition of an ‘ecosystem’ in Article 2 of the Convention on Biological Diversity, the term not being defined in UNCLOS. Based on the scientific evidence before it, the Tribunal had no doubt that the marine environments in question were ‘rare or fragile ecosystems’ and the habitats of ‘depleted, threatened, or endangered species’: [945].
The Tribunal also had regard to CITES, to which both the Philippines and China are parties, in informing the content of UNCLOS Articles 192 and 194(5). The context here was that the sea turtles found on board Chinese fishing vessels were listed under Appendix I of CITES as a species threated with extinction, and the giant clams which had been harvested by Chinese nationals, as well as corals in the area, were listed in Appendix II of CITES: [956]-[957]. The evidence indicated that Chinese-flagged vessels had made widespread use of a particularly damaging technique of breaking up coral with their propellers to extract clams: see [847]-[851], [958]. Read the rest of this entry…

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Philippines v China: first thoughts on the Award in the South China Seas Case

Published on July 12, 2016        Author: 

Any international lawyer looking at a news site in the last few hours will have seen that the final award has been handed down at the Permanent Court of Arbitration in the Philippines v China dispute brought under the UN Convention on the Law Sea Annex VII procedure. The arbitral tribunal’s decision is simply historic. While Philippines has lost on a number of smaller points, the scale of its win overall is much greater than most commentators were expecting.

What follows is a very preliminary comment – and I stress that faced with a 500 page decision I may well revise my views later. It is also more in the nature of an explainer than a deep dive on any of the many legal questions already highlighted below. (This is also an excessively long post, for which I apologise.) However, on a first, quite brief, examination the tribunal has attempted to be meticulously fair to China and has applied the UN Convention on the Law of the Sea strictly and thoroughly. It has delivered a result which was, by and large, predictable.

James Kraska of the US Naval College has summarised the key holdings as:

  • the nine dash line has no basis in law,
  • there are no islands in the disputed area within the meaning of Article 123, UNCLOS,
  • China has interfered in the Philippines’ EEZ; and
  • China’s actions have aggravated the dispute.

I would add to this list three matters. First, the Tribunal has concluded that Mischief Reef is a low tide elevation over which no State can claim sovereignty or possession. This means it is simply a maritime feature within the Philippines exclusive economic zone (EEZ). Chinese island-building activities there are thus not merely without legal effect but are in violation of the sovereign rights of the Philippines.

Second, it has found that China has breached various obligations under UNCLOS regarding the protection and preservation of the marine environment by having caused severe and irreparable harm to coral reef ecosystems in its construction of artificial islands in the South China Seas.

Third, international tribunals normally bend over backwards to avoid findings of bad faith against a state. That is, one cannot act in bad faith without violating some other substantive right. So most tribunals consider it sufficient to stop at determining that a right or duty has been violated. This tribunal has found China violated Article 300 of UNCLOS: the duty to act in good faith. This is an extraordinary rebuke and a clear indication that the law of the sea dispute resolution system will not be cowed by the posturing of the superpower. As a matter of principle, it takes a principled stand on the supremacy of the rule of law. As a matter of pragmatism, it flies in the face of the conventional wisdom that angering China over this dispute could jeopardise the stability of the law of the sea system.
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