Climate Change and International Law. Exploring the Linkages Between Human Rights, Environment, Trade and Investment

Mapping the relevant principles and norms of international law, the paper discusses scientific evidence and identifies current legal foundations of climate change mitigation adaptation and communication in international environmental law, human rights protection and international trade regulation in WTO law. It briefly discusses the evolution and architecture of relevant multilateral environmental agreements, in particular the UN Framework Convention on Climate Change. It discusses the potential role of human rights in identifying pertinent goals and values of mitigation and adaptation and eventually turns to principles and rules of international trade regulation and investment protection which are likely to be of crucial importance should the advent of a new multilateral agreement fail to materialize. The economic and legal relevance of rules on tariffs, border tax adjustment and subsidies, services and intellectual property and investment law are discussed in relation to the production, supply and use of energy. Moreover, lessons from trade negotiations may be drawn for negotiations of future environmental instruments. The paper offers a survey of the main interacting areas of public international law and discusses the intricate interaction of all these components informing climate change mitigation, adaptation and communication in international law in light of an emerging doctrine of multilayered governance. It seeks to contribute to greater coherence of what today is highly fragmented and rarely discussed in an overall context. The paper argues that trade regulation will be of critical importance in assessing domestic policies and potential trade remedies offer powerful incentives for all nations alike to participate in a multilateral framework defining appropriate goals and principles.

International Trade Regulation and the Mitigation of Climate Change. World Trade Forum

What can trade regulation contribute towards ameliorating the GHG emissions and reducing their concentrations in the atmosphere? This collection of essays analyses options for climate-change mitigation through the lens of the trade lawyer. By examining international law, and in particular the relevant WTO agreements, the authors address the areas of potential conflict between international trade law and international law on climate mitigation and, where possible, suggest ways to strengthen mutual supportiveness between the two regimes. They do so taking into account the drivers of human-induced climate change in energy markets and of consumption.

Carbon dioxide emissions and international trade at the turn of the millennium

We present a new dataset of geographical production-, final (embodied) production-, and consumption-based carbon dioxide emission inventories, covering 78 regions and 55 sectors from 1997 to 2011. We extend previous work both in terms of time span and in bridging from geographical to embodied production and, ultimately, to consumption. We analyse the recent evolution of emissions, the development of carbon efficiency of the global economy, and the role of international trade. As the distribution of responsibility for emissions across countries is key to the adoption and implementation of international environmental agreements and regulations, the final production- and consumption-based inventories developed here provide a valuable extension to more traditional geographical production-based criteria.

Prospects in International Investment Law and Policy: World Trade Forum

The negotiation of a patchy but burgeoning network of international investment agreements and the increasing use to which they are put is generating a growing body of jurisprudence which, while still evolving, requires closer analytical scrutiny. Drawing on many of the most distinguished voices in investment law and policy, and offering novel, multidisciplinary perspectives on the rapidly evolving landscape shaping international investment activity and treaty-making, this book explores the most important economic, legal and policy challenges in contemporary international investment law and policy. It also examines the systemic implications flowing from frenetic recent judicial activism in investment matters and advances several innovative propositions for how best to promote greater overall coherence in rule-design, treaty use and policy making and thus offer a better balance between the rights and obligations of international investors and host states.

Agricultural land use and biodiversity in the Alps - How cultural tradition and socioeconomically motivated changes are shaping grassland biodiversity in the Swiss Alps

Alpine grasslands are ecosystems with a great diversity of plant species. However, little is known about other levels of biodiversity, such as landscape diversity, diversity of biological interactions of plants with herbivores or fungal pathogens, and genetic diversity. We therefore explored natural and anthropogenic determinants of grassland biodiversity at several levels of biological integration, from the genetic to the landscape level in the Swiss Alps. Differences between cultural traditions (Romanic, Germanic, and Walser) turned out to still affect land use diversity and thus landscape diversity. Increasing land use diversity, in turn, increased plant species diversity per village. However, recent land use changes have reduced this diversity. Within grassland parcels, plant species diversity was higher on unfertilized mown grasslands than on fertilized or grazed ones. Most individual plants were affected by herbivores and fungal leaf pathogens, reflecting that parcels harbored a great diversity of herbivores and pathogens. However, as plant damage by herbivores and pathogens was not severe, conserving these biological interactions among plants is hardly compromising agricultural goals. A common-garden experiment revealed genetic differentiation of the important fodder grass Poa alpina between mown and grazed sites, suggesting adaptation. Per-village genetic diversity of Poa alpina was greater in villages with higher land use diversity, analogous to the higher plant species diversity there. Overall, landscape diversity and biodiversity within grassland parcels are currently declining. As this contradicts the intention of Swiss law and international agreements, financial incentives need to be re-allocated and should focus on promoting high biodiversity at the local and the landscape level. At the same time, this will benefit landscape attractiveness for tourists and help preserve a precious cultural heritage in the Swiss Alps.

Is there a ‚Depth versus Participation‘ Dilemma in International Cooperation?

Much of the International Relations literature assumes that there is a “depth versus participation” dilemma in international politics: shallower international agreements attract more countries and greater depth is associated with less participation. We argue that this conjecture is too simple and probably misleading because the depth of any given cooperative effort is in fact multidimensional. This multidimensionality manifests itself in the design characteristics of international agreements: in particular, the specificity of obligations, monitoring and enforcement mechanisms, dispute settlement mechanisms, positive incentives (assistance), and organizational structures (secretariats). We theorize that the first three of these design characteristics have negative and the latter three have positive effects on participation in international cooperative efforts. Our empirical testing of these claims relies on a dataset that covers more than 200 global environmental treaties. We find a participation-limiting effect for the specificity of obligations, but not for monitoring and enforcement. In contrast, we observe that assistance provisions in treaties have a significant and substantial positive effect on participation. Similarly, dispute settlement mechanisms tend to promote treaty participation. The main implication of our study is that countries do not appear to stay away from agreements with monitoring and enforcement provisions, but that the inclusion of positive incentives and dispute settlement mechanisms can promote international cooperation. In other words, our findings suggest that policymakers do not necessarily need to water down global treaties in order to obtain more participation.

Clustering Assessment: Enhancing Synergies among Multilateral Environmental Agreements

Against the background of a widely fragmented and diluted international environmental governance architecture, different reform options are currently being discussed. This issue brief considers whether streamlining international environmental regimes by grouping or ‘clustering’ international agreements could improve effectiveness and efficiency. It outlines the general idea of the clustering approach, draws lessons from the chemicals and waste cluster and examines the implications and potentials of clustering multilateral environmental agreements.

Agents, Trustees, and International Courts: Nomination and Appointment of Judicial Candidates in the WTO Appellate Body

Scholars have increasingly theorized, and debated, the decision by states to create and delegate authority to international courts, as well as the subsequent autonomy and behavior of those courts, with principal–agent and trusteeship models disagreeing on the nature and extent of states’ influence on international judges. This article formulates and tests a set of principal–agent hypotheses about the ways in which, and the conditions under which, member states are able use their powers of judicial nomination and appointment to influence the endogenous preferences of international judges. The empirical analysis surveys the record of all judicial appointments to the Appellate Body (AB) of the World Trade Organization over a 15-year period. We present a view of an AB appointment process that, far from representing a pure search for expertise, is deeply politicized and offers member-state principals opportunities to influence AB members ex ante and possibly ex post. We further demonstrate that the AB nomination process has become progressively more politicized over time as member states, responding to earlier and controversial AB decisions, became far more concerned about judicial activism and more interested in the substantive opinions of AB candidates, systematically championing candidates whose views on key issues most closely approached their own, and opposing candidates perceived to be activist or biased against their substantive preferences. Although specific to the WTO, our theory and findings have implications for the judicial politics of a large variety of global and regional international courts and tribunals.

The Protection and Promotion of Cultural Diversity at the International Level

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted under the auspices of the United Nations Educational, Cultural and Scientific Organization (UNESCO) in 2005, entered into force on 18 March 2007 after an incredibly swift ratification process. The Convention is the culmination of multiple-track efforts that spread over many years with the objective of providing a binding instrument for the protection and promotion of cultural diversity at the international level. These efforts, admirable as they may be, are not however isolated undertakings of goodwill, but a reaction to economic globalisation, whose advancement has been significantly furthered by the emergence of enforceable multilateral trade rules. These very rules, whose bearer is the World Trade Organization (WTO), have been perceived as the antipode to "culture" and have commanded the formulation of counteracting norms that may sufficiently "protect" and "promote" it. Against this backdrop of institutional tension and fragmentation, the present chapter explicates the emergence of the concept of cultural diversity on the international policy- and law-making scene and its legal dimensions given by the new UNESCO Convention. It critically analyses the Convention's provisions, in particular the rights and obligations of the State Parties, and asks whether indeed the UNESCO Convention provides a sufficient and appropriate basis for the protection and promotion of a thriving and diverse cultural environment.

Labour Migration, Trade and Investment: From Fragmentation to Coherence

Trade, investment and migration are strongly intertwined, being three key factors in international production. Yet, law and regulation of the three has remained highly fragmented. Trade is regulated by the WTO on the multilateral level, and through preferential trade agreements on the regional and bilateral levels – it is fragmented and complex in its own right. Investment, on the other hand, is mainly regulated through bilateral investment treaties with no strong links to the regulation of trade or migration. And, finally, migration is regulated by a web of different international, regional and bilateral agreements which focus on a variety of different aspects of migration ranging from humanitarian to economic. The problems of institutional fragmentation in international law are well known. There is no organizational forum for coherent strategy-making on the multilateral level covering all three areas. Normative regulations may thus contradict each other. Trade regulation may bring about liberalization of access for service providers, but eventually faces problems in recruiting the best people from abroad. Investors may withdraw investment without being held liable for disruptions to labour and to the livelihood and infrastructure of towns and communities affected by disinvestment. Finally, migration policies do not seem to have a significant impact as long as trade policies and investment policies are not working in a way that is conducive to reducing migration pressure, as trade and investment are simply more powerful on the regulatory level than migration. This chapter addresses the question as to how fragmentation of the three fields could be reme-died and greater coherence between these three areas of factor allocation in international economic relations and law could be achieved. It shows that migration regulation on the international level is lagging behind that on trade and investment. Stronger coordination and consideration of migration in trade and investment policy, and stronger international cooperation in migration, will provide the foundations for a coherent international architecture in the field.