By Aure Demoulin

Spurred by a sense of urgency and increasing global recognition that environmental deterioration is a pressing issue, several key developments took place in international environmental law in 2016. In addition to the Paris Agreement, 2016 was the year of the first-ever global agreement cutting pollution from commercial airlines, the Marrakech Summit, and environmental lawsuits on behalf of future generations.

First Meeting of the Prep Com: The UN General Assembly established a Preparatory Committee (Prep Com) to receive recommendations for an internationally binding legal agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. The Prep Com held its first meeting from March 28 to April 8, 2016 and discussed the relationship between the proposed instrument and other existing agreements, as well as marine genetic resources, benefit-sharing, environmental impact assessments, capacity building, and marine technology transfer. The sustainable but efficient use of ocean resources is a hot topic in environmental law, and the Prep Com’s first meeting only preceded the third edition of the Hamburg International Environmental Law Conference by a few days. The Conference debated ways to conserve the oceans’ ecosystems, as well as the role International Environmental Law should play in regulating activities such as deep sea mining, marine energy generation, seabed pipeline and cable systems.

Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA): The Carbon Offsetting and Reduction Scheme for International Aviation is the first-ever global agreement to cut greenhouse gas emissions from commercial airlines. Announced on October 6, 2016, this sweeping deal aims to curb carbon dioxide emissions from the international aviation sector, as well as aviation pollution’s effect on climate. The deal will be implemented in phases (participation in the early years being entirely voluntary) and aims to put the industry on a path toward more sustainability. 191 nations have expressed intent to voluntarily participate.

Kigali Amendment to the Montreal Protocol: On October 15, 2016, 197 countries endorsed the Kigali Amendment to the Montreal Protocol. The amendment aims to curb the production and consumption of hydrofluorocarbons (HFCs), powerful greenhouse gases, by more than 80 percent over the next 30 years in the hope to prevent up to 0.5 degrees Celsius (0.9 F) of global warming by the end of this century. Manufacturers have used HFCs to replace chlorofluorocarbons (CFCs)—phased out under the Montreal Protocol—as refrigerants in a variety of products. The amendment calls for developed countries to start reducing their consumption of HFCs by 2019 and for most developing countries to freeze consumption by 2024 or 2028. The new amendment pledges to provide funding for climate-friendly alternatives in developing countries.  

The Paris Agreement: The Paris Agreement is an agreement within the UN framework Convention on Climate Change (UNFCC) meant to strengthen the global response to climate change. The agreement aims to curb greenhouse gases emissions in order to prevent a global temperature rise of more than 2 degrees Celsius (3.6 F). After 195 countries negotiated the agreement, final language was adopted on December 12, 2015, and the agreement was opened for signature on April 2, 2016. As of December 2016, 194 UNFCC members had signed the treaty, 132 of which had ratified it. In October 2016, enough countries had ratified the agreement for it to enter into force. As a result, the agreement went into effect on November 4, 2016.

The Marrakech Summit: The twenty-second session of the Conference of the Parties (COP 22), the twelfth session of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP 12), and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA 1) were held in Bab Ighli, at the Marrakech Summit, Morocco from November 7-18, 2016. The Conference successfully demonstrated to the world that the implementation of the Paris Agreement is underway and that cooperation on climate change continues.

Global Lawsuits on Behalf of Young and Future Generations: In 2016, a global trend of lawsuits filed on behalf of future generations continued in the United States with a case filed in an Oregon District Court. The plaintiffs argued that by failing to protect public trust resources like water and air, the federal government is violating their constitutional rights to life, liberty, and property. Similarly, in June 2016, the Pakistan Supreme Court ruled in favor of seven-year-old petitioner Rabab Ali, allowing her constitutional climate change lawsuit to proceed. Yet another similar case is currently underway in the Philippines. In 2015, the Hague District Court in the Netherlands had ruled in favor of the Urgenda Foundation (representing multi-generations of citizens), compelling the government to reduce Dutch greenhouse gas emissions by 25% by 2020 (making current Dutch climate policies, which aim only for a 16% reduction, unlawful).

CETA: The EU-Canada Comprehensive Trade Agreement (CETA) is a new trade agreement between the EU and Canada. The European Parliament voted to adopt CETA on February 15, 2017, though EU national parliaments must approve the agreement before it can take full effect. However, throughout 2016, member of the European Parliament, such as Bart States, and public interest organizations had called for the rejection of CETA. States had warned that CETA risked undermining regulatory measures with regard to endocrine disruptors, which are estimated to cost Europe well over 150 billion Euros each year in additional health expenses. The European Commission has already acknowledged that mounting pressure from EU trade partners has led it to propose to lower standards of protection against endocrine disruptors. With CETA, Canada and Canadian businesses will be given increased leverage to pressure the EU not to introduce precautionary laws.

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March 31, 2017

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March 21, 2017

By Jose Corte-Real

The Future Model for European Trade Deals?

After seven years of negotiations, the landmark Comprehensive Economic and Trade Agreement (CETA) was signed on October 30, 2016. The agreement, which has been touted as a major success for the future of EU trade deals, has also been the target of criticism and protests. With approval from the European Parliament and the Canadian Parliament, 90% of the deal will be able to take effect, leaving the rest of the deal to be ratified and implemented by each of the twenty-eight member states’ national legislatures.

The deal purports to remove 98% of tariffs between Canada and the EU, and officials hope it will generate a €10.9 billion ($14.3 billion Canadian) increase in trade worth. Further, EU exporters are estimated to save €500 million in duties annually, and there will be mutual recognition in regulated professions such as architecture, accounting, and engineering and easier transfers of company staff and other professionals between the EU and Canada. The European Commission also hopes CETA will create a more level playing field between Canada and the EU on intellectual property rights and strengthen the protection and enforcement of copyrights. “Canadians and Europeans share the understanding that in order for real and meaningful economic growth, we need to create more good, well-paying jobs for our citizens. Progressive trade agreements like the one signed today, will do just that,” Trudeau said, shortly after signing the landmark deal.

European Commission President Jean-Claude Juncker referred to a “new chapter” in relations between Canada and the EU, hoping this deal will open new opportunities for the millions of workers seeking them on both sides of the Atlantic.

The seven years of negotiations between each of the EU member states and Canada were left hanging in the balance as Wallonia, Belgium’s southern French speaking region with a population of 3.6 million people voted to veto the agreement just a few days before the deal was due to be signed. Because all twenty-eight EU states had to agree on the deal before it Trudeau could sign it, Belgium’s veto almost pushed back the long-awaited deal yet again. Belgium was the lone holdout to signing the deal because its regions can veto international treaties. The protestors were fearful of an investor-state dispute mechanism provision and sought safeguards for labor, environmental and consumer standards, and more protection for Walloon farmers who believe they will face increased competition from Canadian imports. In order for the deal to move forward, a last minute addendum was added addressing the regional concerns.

Further criticisms of the deal include that it will weaken European consumer rights protections, including those concerning food safety, and that tariffs are already low and do not need lowering. The deal has also been criticized as being beneficial only to big business and multinational corporations while risking net-losses, unemployment, and environmental damage that might impact individual citizens. These criticisms seem to highlight how hard it is to get free trade agreements done in a multifaceted and multicultural economy such as the EU’s. CETA also brought up a lot of talk in Brussels regarding finding a new consensus on trade. Whatever this consensus is, it will be very relevant to how the EU approaches Brexit negotiations.

A Potential Model for Post-Brexit Relations with the UK?

Many of the British leaders who advocated a leave vote during the Brexit campaign pointed to Norway and Switzerland’s relationship with the EU as a model to aspire to. However, the CETA model may be significantly more appealing. Norway and Switzerland’s access to the European Union single market comes at a steep price. Both countries sign up for most EU regulations, accept the free movement of EU workers, and make payments into the EU budget. CETA seemingly will give Canada access to the EU single market without the obligations faced by Norway and Switzerland. However, some Brexit proponents still have apprehensions about using CETA as a viable model for a trade deal with the EU.

CETA’s removal of tariffs does not include some sensitive food items such as eggs and chicken. Further, the EU will still require Canada to comply with its rules of origin, which oblige non-EU states to undergo rigorous customs checks. Because of these customs requirements, Canadian exporters are expected to face extra costs in order to prove their goods are “made in Canada.”

Finally, the service industry, which makes up about 80% of the United Kingdom’s economy are only partially covered by CETA. Thus, although CETA could be a good starting model for discussions with the EU, it is expected that a trade deal between the UK and the EU would have to be significantly more comprehensive in order to deal with the intricate web of ties that currently link the UK and the EU.

How CETA Will Affect the Legal Landscape of Investor-State Disputes

A lot of debate has revolved around an investor-state dispute settlement mechanism included in the deal through which a permanent arbitration tribunal is to be established. This tribunal, which will settle disputes between companies and governments, has been controversial, with many protestors claiming it gives too much power to big multinationals at the expense of consumers and workers. Amongst other criticisms, critics allege that the investor-state dispute settlement provisions will allow U.S. companies to engage EU states in arbitration through Canadian subsidiaries.

Section 4 of CETA provides investment protection to foreign investors and guarantees a “fair and equitable treatment and full protection and security.” CETA will allow foreign corporations to sue states before arbitral tribunals if they claim to have suffered losses because a state violated its Non Discriminatory Treatment obligations (which can be found in section 3 of CETA) or because of a violation of the guaranteed investment protection.

Such investor-state arbitrations are not necessarily new under public international law, but for transatlantic trade and investment, the comprehensiveness of this parallel model of justice is new. In addressing fears of confidentiality of arbitral proceedings, CETA provides transparency by adopting the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration.

The tribunal will consist of fifteen members named by Canada and the EU, dealing with individual cases in panels of three, and an appeals mechanism will be established to ensure “legal correctness” of the awards. Further, the tribunal’s members will not be allowed to appear as experts or party counsel in other investor-state disputes.

These investor tribunals  are not a guaranteed part of CETA, and each national legislature will have to ratify them individually. For example, Belgium’s opposition to the court suggests that it might never be enacted there, meaning Canadian companies will not be able to use the arbitration tribunal to sue Belgium over policies that negatively affect their investments. This could serve as a model for other countries that worry this provision unduly gives too much power to corporations.

Moving Forward

Supporters of the deal say that it will create more than one million jobs, with the European Commission saying the deal will be worth €545 to each European citizen every year. Opponents are angry that CETA meetings were held in secret and fear that the deal has given too much power to corporations by making it easier for them to sue governments. However, only time will tell if this deal will boost the stagnant economies of these two global markets and serve as a viable model for the future of EU trade deals.

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November 25, 2016

By Justin Kirschner

After negotiations that have spanned two Canadian governments, Canada and the European Union this week announced they overcame a major hurdle and moved one step closer to inking what Canadian Trade Minister Chrystia Freeland called a "gold-platted" trade deal. Formally known as the Comprehensive Economic and Trade Agreement (CETA), the deal’s latest draft resolved the thorny issue of how and when companies can directly sue governments. To assuage EU worries that ad-hoc arbitration panels would settle disputes, well, arbitrarily, and thus give multinationals a legal backdoor around government regulations, CETA will create a permanent investor-state tribunal that comes with a built-in appeal process and consists of members appointed by both sides. Hovering in the background of this part of the EU-Canada deal is the skeptical eye of the United States. The EU and the US are in the middle of negotiating their own bilateral trade deal, TTIP, and a major sticking point of those talks is investor-state dispute resolution. The U.S. has steadfastly opposed a permanent tribunal like the one Canada and the EU have agreed to create, while the EU hopes that CETA will serve as a template TTIP will ultimately duplicate.

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March 27, 2016

By Nathaniel DeLucia

Thousands of Europeans marched in opposition to three proposed trade agreements which are currently being negotiated: the Transatlantic Trade and Investment Partnership (TTIP), the Canada-EU Trade Agreement (CETA), and the Trade in Services Agreement (TISA).  20,000 people protested in Munich alone, making it the largest protest in Germany.

The three proposed agreements are all multinational free trade agreements between various key international actors, such as the United States, the European Union, Canada, and Australia.The protestors are primarily concerned with the influence of lobbyists and corporations on the negotiations, and fear that they may be skewing the agreements to better protect the corporations rather than the everyday consumer.  As the next round of negotiations is scheduled for next week, it will be interesting to see how these protestors influence the discussions.

To check out the full story, see the article on IP-Watch.

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May 07, 2015