Update 23 January 2020 for the EC’s first written submission see here.
Update 20 September 2019 the US too have now requested environment consultations under KORUS, their FTA with Korea.
Update 5 July 2019 Ditto for the Korea issue. Update 21 June 2019 the EU /Ukraine issue, below, has now led to a formal request for establishment of panel.
Update 10 April 2019 see USTR for their report on having successfully resolved a timber management issue under the US /Peru FTA.
Update 19 March 2019 see Quentin Decleve here for the US following suit, related to rule of law /due process/ hearing rights issues before the Korean competition authority.
Update 16 January 2019 the first such trigger was quickly followed by a second: the EU have requested consultations with Ukraine over the country’s ban on the export of unprocessed woods.
This is a short posting for completeness and filing purposes. The EU have requested consultations with South Korea under the Trade and Sustainable Development chapter of the EU-Korea FTA. Labour rights are at the heart of the request. The request is a first trigger of the ‘Trade and’ consultations chapters under recent EU FTAs. I am not in a position to say more at this stage.
Update 24 May 2019 Prediction below has been realised: the case has been declared inadmissible on standing grounds which no doubt will be appealed. All the classics feature: Plaumann; Inuit; Jégo-Quéré; Stichting Greenpeace; with them the issues concerning the implementation by the EU of the Aarhus Convention, an issue which at the moment is subject to an extensive study by Milieu.
One can say many things about climate change litigation by individuals. (See my earlier piece on the Dutch Urgenda case). Many argue that the separation of powers suggest that governments, not judges, should be making climate policy. Or that international environmental law lacks the type of direct effect potentially required for it to be validly invoked by citisens. Others point to the duty of care of Governments; to binding – even if fluffy – climate change obligations taken on since at least the 1990s, and to the utter lack of progress following more than 25 years of international climate change law.
It is therefore no surprise to see that this type of litigation has now also reached the European Court of Justice: the text of the application is here, see also brief legal (by Olivia Featherstone) and Guardian background.
Like cases before it, colleagues shy of preparation materials for an international environmental law course, with comparative EU law thrown in, can use the case to hinge an entire course on.
As Olivia reports, the legal principles involved are the following:
The claimants state that EU emissions leading to climate change are contrary to:
- The principle of equality (Articles 20 and 21, EU Charter)
- The principle of sustainable development (Article 3 TEU, Article 11 TFEU)
- Article 37 EU Charter
- Article 3 UNFCCC
- The no harm principle in international law
- Article 191 ff TFEU (the EU’s environmental policy
One to watch – albeit that standing /locus standi requirements before the CJEU are likely to be a big hurdle: my 2003 paper on same is still relevant (albeit one has to make allowance for Treaty changes since Lisbon).
EU Environmental Law, with Leonie Reins, Edward Elgar, 1st ed. 2017, part I Chapter 2 in particular.
I have just recently stumbled across the EU’s Bioeconomy strategy, classified in the administrative organogram at least under ‘Research and innovation’. It could also be DG Industry. Or DG Trade. Or DG Env. Or indeed DG Agri. Tucking it away under Research and innovation was a good idea, I believe: best to keep it safely away from daily policy concerns and ditto lobbying. The Bioeconomy – which is defined as encompassing the sustainable production of renewable resources from land, fisheries and aquaculture environments and their conversion into food, feed, fiber bio-based products and bio-energy as well as the related public goods – is seen by the EC as a successor to the EU’s Biosociety program, which however was more scientific in outlook (lots of talk of new technologies).
A big gap in its approach, to me at least, is its lack of discussion on reduced consumption and ‘need‘ (the Club of Rome has some powerful insight into this) which is a pitty. It talks mostly about increasing and diversifying ‘output’, rather than on reducing it or matching it to true need. For in its current outlook, the Bioeconomy feels more like a postersite for EU ‘innovative’ technologies than one for foresight in development priorities. And no, that is not properly done elsewhere in the EC.
Fairphone posted a blog piece on their recent trip to Ghana – thanks to Raluca Radu, a former student of mine, for keeping me updated. The piece and accompanying photos make very sober reading, highlighting the realities of WEEE export to this part of the world. Not that one is not aware of it. However it is very worthwhile to keep being reminded! Fairphone’s project in Ghana, though, is also novel in highlighting the challenge of toxic waste produced in Africa, not just imported there. Finally, the posting (and comments) underline the challenges of all three pillars of sustainable development. Plenty of challenges therefore however it is great to see people trying!
Argentina has requested consultations, the first step in the WTO’s dispute settlement procedure, with respect to the EU’s biofuels sustainability criteria, contained in RED, its renewable energy Directive. The development of biofuels criteria per se is full of pitfalls. For starters, the EU’s Directive has effectively skirted the issue of sustainability. As all students of environmental law and policy have been told ad nauseam, sustainable development has three pillars (ecological, economic, social), not just the one (ecological /environment) which the Directive has quantified. On social and economic impact of the EU’s regime, the European Commission is merely to report. Evidently, quantifying all three is not straightforward: witness also the demise of the Clean Development Mechanism, CDM, one of the flexible mechanisms under the Kyoto Protocol to the United Nations Framework Convention on Climate Change.
With respect to the environmental pillar, RED employs a standard value of CO2 emission reduction which for soybean biodiesel (the main export of Argentinian biofuel) is 31%. This falls short of the 35% required for renewable energy to count towards Member States’ renewable energy targets (and co-inciding fiscal and other incentives). In other words, fuel not meeting the standard can still be imported into the EU: but it will not be very popular (one can sense a de facto /de iure discrimination debate). One way of getting around the issue, is for individual shipments to show that they meet the 35% threshold with all the extra costs this implies (arguably imposing a measure equivalent to a quantitative restriction), or for the European Commission to recognise relevant voluntary schemes meeting the higher threshold through certification. An Argentinian scheme presented to the EC was not accepted by it.
The Argentinian request includes a long list of GATT and WTO obligations which it argues are infringed by the EU (and by relevant Member States implementing measures).
Having a Panel and Appellate Body express some rules of thumb for sustainability criteria (which Argentina explicitly says it does support in principle) would be very useful indeed.
Oops, I did it again. A touch too suggestive, perhaps, the title, however the thought did occur to me. OPEC Members increasingly are WTO Members, too. OPEC traditionally is questioned from the competition law /cartel point of view. However there are also anchors in the discipline on export restrictions. Whilst reviewing China – Raw Materials, it occurred to me that China’s reading of GATT Article XX(g)’s ‘conservation of exhaustible natural resources’, reflects the true meaning of the principle of sustainable development: one meeting ecological, economic, and social concerns. The Panel however stayed with the very strict confines of ‘ecological’, refusing to accept the application of XX(g) for ‘conservation’ aimed at ensuring the right pace of economic development. The Panel’s finding on this issue was not appealed, hence one does not know how the Appellate Body would review same.
Within the context of OPEC, the argument has been made that Article XX(g) could be employed by WTO Opec Members to try and justify export restrictions. Not so, if China – Raw Materials is to be followed (China- Rare Earth Elements or Rare Earth Materials most probably will be the first opportunity to review the issues).
My pondering of the case is forthcoming in RECIEL and in the meantime available on SSRN.
The UN Guiding principles on business and human rights were adopted in 2011, after having been developed by prof John Ruggie and team. The aim of the principles effectively (and in my view) is to create a halfway house between full duties (and rights?) of multinational corporations under public international law (especially in the human rights and environmental field), on the one hand, and complete lack of accountability of those MNCs under the same law, on the other.
CSR originally was firmly meant as a market-based instrument for sustainable development. Ignoring the alleged mistakes of a command and control approach to sustainable development, CSR would allow companies voluntarily to gain a proactive sustainable development profile, thus gaining consumer appreciation, whence serving the three P’s: People, Planet, Profit. As so often, though, these market-based instruments gradually look ever more like the command and control approach which they profess to despise.
Exactly this is happening to the UN Guiding Principles, at least as further developed by the European Commission. It is in the process of formulating sector-specific guidance [for employment and recruitment agencies; ICT; and oil and gas] for companies to implement the UN Guiding principles. This may mean either that command and control approaches to sustainable development are not half as bad as they are made out to be; and /or that in the end, voluntarism in sustainable development will never be enough to help achieve it.
The Court of Justice of the EU has further completed its views on the use of criteria linked to sustainable development. These are criteria which do not simply refer to environmental characteristics of the product itself. Rather, they convey a message as to the overall ‘process and production methods’, known in jargon as ‘PPMs’, of a particular product or service.
In Max Havelaar, Case C-368/10, the Court had to decide on the use of specific labels in decisions awarding government purchases (‘procurement’) to a particular supplier.The province of North Holland had
– inserted in the technical specifications a condition requiring the Max Havelaar and EKO labels or in any event labels based on similar or the same criteria;
– included, for appraising the ability of operators, criteria and evidence concerning sustainable purchasing and socially responsible business, and
– included, when formulating award criteria, a reference to the Max Havelaar and/or EKO labels, or in any event labels based on the same criteria.
The judgment is quite complex for those unfamiliar with (EU) procurement law In particular, the Court distinguishes in the exact room for manoeuvre between various stages of a procurement decision. Leaving detailed breakdown aside (reference is made to the judgment), the Court’s finding is basically that authorities must make use of descriptive conditions for such criteria, rather than solely referring to specific labels. However they may identify certain labels as leading to a presumption of these criteria having been met, provided of course they allow other proof to be submitted.
For WTO lawyers, judgments like these are not irrelevant. Arguably, adoption of private labels in procurement decisions, may well bring these labels within WTO, in particular, TBT (Agreement on Technical Barriers to Trade), discipline.