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Tarcísio Hardman Reis
The present chapter provides an overview of the treatment of wastes in international law through a study of international and regional treaties, as well as some of the existing jurisprudence, in order to identify trends and gaps related to the international regulation of waste. Within this purpose, the chapter identifies three approaches based on different topics under international law: the protection of human rights; the protection of the environment; and economic concerns associated with trade and investment activities. The chapter allows us to observe that each of the approaches described serves to respond to specific concerns (e.g. the nuisances created by waste, pollution from certain types of waste, and technical and legal definitions). The chapter concludes that an economic approach, mainly supported by soft law instruments (e.g. international standards and publications from international organizations) is currently being developed in order to respond to the growing importance of the economic dimension of waste.
Re-use, recycling, as well as environmentally sound waste management and disposal operations have become important economic factors, particularly in industrialized countries. It is thus not surprising that an international market for waste materials has emerged; waste and end-of-life goods are regularly traded and shipped across borders for their disposal and recovery. In addressing the transboundary movements of waste and end-of-life goods from the viewpoint of the law of the World Trade Organization (‘WTO’) and the General Agreement on Tariffs and Trade (‘GATT’) in particular, this chpater first raises the issue that the notion of ‘waste’ has a relative connotation. What is perceived as worthless ‘rubbish’ by some may be a valuable and tradable commodity for others, and as such, wastes and end-of-life goods will generally fall within the broad scope of application of WTO law and the GATT. As a consequence, states imposing trade restrictions on the transboundary movements of waste and end-of-life goods run the risk of breaching WTO law. In examining the compatibility of trade measures with general principles of the GATT, this chapter addresses questions that are bound to arise when applying concepts of the GATT to end-of-life materials. It then analyses the possibilities of and limitations to justifying trade-restrictive measures under Article XX of the GATT, according to which deviations from the GATT principles may be justified if a state can demonstrate that its measures are necessary to reach legitimate policy goals and are applied in a manner that does not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. In doing so, this chapter raises questions on the role of the WTO panels and the Appellate Body in addressing uncertain risk situations that touch on environmental, social and ethical (‘non-trade’) concerns. The chapter comes to the conclusion that while restrictions to cross-border movements of hazardous wastes and end-of-life goods are most likely to be justified when implemented with a view to environmental and human health concerns, justifying less clear-cut cases – for example, cases involving materials that are not generally acknowledged as ‘hazardous’ or trade restrictions grounded primarily on ethical considerations – is a more ambitious task. This outcome is also in accordance with the legal grey areas of the regulatory frameworks on transboundary movements of wastes on an international and regional level, which do not regulate or control non-hazardous, ‘green-listed’ wastes to a wide extent.
This chapter considers the geopolitical conflicts in respect of intellectual property (IP) trade, and climate change in the TRIPS Agreement 1994 under the World Trade Organization (WTO). In particular, it focuses upon debates in the TRIPS Council on the topic of patent law and clean energy in 2013 and 2014. The chapter highlights the development agenda of a number of developing countries who are keen for access to clean energy to combat climate change and global warming. It also considers the mixed contributions of members of the BRICS/BASIC group—including Brazil, India, China, and South Africa. This chapter highlights the IP maximalist position of a number of developed countries on IP, climate change, and trade. Seeking to overcome this conflict and stalemate, this chapter puts forward both procedural and substantial reform options in respect of IP, trade, and climate change in the TRIPS Council and the WTO. It also flags that the TRIPS Agreement 1994 could well be displaced by the rise of mega-regional trade agreements—such as the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership (TTIP).
Margaret A. Young
Climate change is a worldwide problem. In response, countries may decide to impose trade measures that modify production or consumption behaviour within or outside their territory: examples include energy subsidies, border tax adjustments (BTAs), certification and labelling requirements, and import bans. Yet while trade law imposes requirements that measures be non-discriminatory or least trade-restrictive, there is some uncertainty as to whether the measures must also respect the principles of public international law relating to the exercise of prescriptive jurisdiction. Must there be a ‘territorial nexus’ between the objective of the trade measure and the state imposing the measure? This chapter shows that the Appellate Body has repeatedly reserved its opinion on such questions, in contrast to other tribunals. It then takes a position on this issue, arguing that trade measures addressing climate change are unlikely to enliven—let alone violate—public international law rules on extraterritorial jurisdiction. In the alternative, it argues that if a nexus is required, it is relatively easy to satisfy. Neither of these findings, however, remove the need to consider the lack of parity between and within states with respect to historic contributions to the cause of climate change and vulnerabilities to its impacts.
The increased importance of environmental protection led to the introduction of sustainability-related criteria in standard-setting practices. A discomfort with the functioning, working methods and certain rigidities of the global standardizing bodies such as the International Standardization Organization (ISO) led to a mushrooming of a new generation of private standard-setters at the transnational level that wanted to have a more direct influence over global production and supply chains. Many of these initiatives started as coalitions of relatively powerful downstream retailers or as domestic hybrid initiatives that went global, due to their good reputation in setting standards for business conduct. Against this background, this chapter reviews the current landscape of voluntary sustainability standards (VSS) globally as a means to organize, coordinate and manage efforts for corporate responsibility, as well as climate change mitigation and adaptation. As these schemes grow in prominence, their effects on trade flows also become more visible and sometimes even worrisome. The chapter analyses in particular whether the rules set out in the WTO Agreement on Technical Barriers to Trade (TBT) and the Code of Good Practice can tame this increasingly important form of transnational rule-making.
Renewable energy provides an answer to the most pressing socioeconomic challenges that governments face today, in particular the effects of climate change. Although efforts have been made throughout the world, it is necessary that investment in renewable energy is further increased if it is to have a marked impact on the reduction of carbon dioxide (CO2). The lack of national investment is inevitably going to trigger the inflow of foreign investment which is subject to 'performance requirements' which are regulated by a number of international norms. The chapter reviews all the rules currently applicable and stresses their differences to provide a typology of existing prohibitions. The analysis is further refined by a comprehensive review of the case law (both decided by trade and investment tribunals) to identify the type of requirements which have been implemented on renewable energies. It also explains and anticipates the role of the most-favoured national (MFN) treatment in the context of bilateral treaties in a manner hitherto unexplored. In doing so, this Article provides a comprehensive analysis of the 'performance requirements' in international treaties with a view to assessing their impact on the further development of renewable energies.
Karoline S. Rogge
The Paris Climate Agreement calls for decarbonization of the economy in the second half of this century. This requires a radical redirection and acceleration of technological change towards low- and particularly zero-carbon solutions. Global carbon pricing is seen as a key enabler for such decarbonization, with the European Union’s Emission Trading System (EU ETS) serving as an important pillar. This chapter reviews the evidence on the innovation impact of the EU ETS. The review shows a very limited effect of the scheme on technological innovation, but there are clear signs of it having stimulated organizational innovation, with the impact being more pronounced for the electricity sector than for industry. The initially high expectations of the EU ETS regarding technological innovation largely dissipated once the scheme’s lack of stringency became apparent and prices collapsed accordingly. Also, for many of the rather incremental innovations that have taken place, the EU ETS was shown to be only one contributing factor among others, with the broader policy mix and long-term targets playing a particularly pivotal role in stimulating innovation. In contrast, there is clear evidence that the EU ETS has been a key driver of various organizational innovations, including making climate change a top management issue. However, so far, these organizational innovations have only had limited effects on shifting corporate strategies towards low-carbon solutions because of low carbon prices, the relatively high share of free allocations in industry, and more pressing business concerns. Despite this, the scheme’s positive impact on organizational innovations should not be underestimated, as these constitute a necessary precondition for future technological innovations. The findings suggest that the Commission’s proposal for the fourth trading period of the EU ETS points in the right direction, but further efforts will be needed to significantly increase the scarcity of EU allowances and the share of auctioning in order to fully unleash the scheme’s transformative power. If the identified shortcomings are not addressed, the EU ETS cannot play its intended role in guiding the decarbonization of the European economy, for which innovations in low-carbon solutions are a fundamental requirement.