Volume XVI, Issue 2
Spring 2016
Sustainable
Development
Law & Policy
Exploring How Today’s Development Affects Future Generations Around the Globe
In This Issue:The 2016 Sustainable Development Goals
2
|
4
by Caitlin Buchanan
|Lodging the Sustainable Development Goals in the International Trade Regime:
From Trade Rhetoric to Trade Plethoric
16
Editor’s Note
by Nasser Alreshaid
|A North-South Struggle: Political and Economic Obstacles to Sustainable Development
by Dr. Imrana Iqbal and Charles Pierson
28
Developing an International Carbon Tax Regime
|
by Steven Specht
http://www.wcl.american.edu/org/sustainabledevelopment
Editor’s Note
At the beginning of 2016, the United Nations released the
seventeen Sustainable Development Goals of the 2030 Agenda
for Sustainable Development. These seventeen goals include
addressing poverty, providing affordable and clean energy,
conserving ocean and marine resources, sustainably managing natural resources, and implementing climate action. These
goals seek to improve upon the success of the Millennium
Development Goals. The Sustainable Development Goals are
not legally binding on the nations of the world, but this issue
of SDLP will explore the impacts and policy of the SDGs and
several topics related to the individual goals themselves.
The mission of Sustainable Development Law & Policy
is to approach sustainable development from a variety of prospectives to provide our readers with a balanced and informed
view of our chosen topics. In this issue, we seek to provide
our readers with insight into domestic land and water use
with three varying approaches to this subject. Our first article,
Lodging the Sustainable Development Goals in the International
Trade Regime: From Trade Rhetoric to Trade Plethoric by
Nasser Alreshaid discuss how implementing the Sustainable
Development Goals into global trade will lead to a more inclusive
and representative international trade regime. The second article,
A North-South Struggle: Political and Economic Obstacles to
Sustainable Development, authored by Dr. Imrana Iqbal and
Charles Pierson explores the difficulty the developed world
experiences in achieving the sustainable development that the
SDGs intend to be shared by all nations. The authors argue that
the developed world pays lip services to sustainable development
while the lack of enforcement needed to compel the developing
world to alter environmentally unfriendly economic practices.
In the final article, Steven Specht explores a means of achieving the SDGs of climate action and clean energy in Developing
an International Carbon Tax Regime. Mr. Specht argues that an
international agreement on taxation of domestic carbon sources
is the best way forward to deal with climate change.
This issue also includes three featured articles by Washington
College of Law students. Harjot Dhillon explores food security
in South Sudan and its obstacles to achieving SDGs. In the
second featured article, Tais Ludwig argues the importance of
the Rio Principle 10 in implementing the current SDGs. Finally,
Alexi Nation focuses on the SDG for ocean conservation and the
importance of its implementation.
2
Features:
14|Lofty Goals in Dire Times: South Sudan’s
Obstacles to Achieving the New SDGs
by Harjot Dhillon
26 |The Key to Engaging with the SDGs:
Utilizing Rio Principle 10 to Successfully
Implement the U.N. Sustainable
Development Goals
by Taís Ludwig
36|The Law of the Seas: A Barrier to
Implementation of Sustainable
Development Goal 14
by Alexi Nathan
On behalf of the Sustainable Development Law & Policy
staff, I would like to thank all of the authors who contributed
their time, efforts, and scholarship to this issue. Your contributions have allowed for a meaningful and informed discussion
of sustainable land and water use policy in the United States.
I would also like to thank my staff for all of their hard work
and dedication to not only this issue, but to our publication as
a whole. Their efforts are the source of success for our publication. Lastly, I would like to thank our readers for your continuing
interest and support of SDLP.
Caitlin Buchanan
Sustainable Development Law & Policy
About SDLP
Sustainable Development Law & Policy (ISSN 15523721) is a student-run initiative at American University
Washington College of Law published three times each academic year, with occasional special editions and two annual
foreign language translations. The journal publishes articles
and essays that focus on reconciling the tensions between
environmental sustainability, economic development, and
human welfare. It embraces an interdisciplinary focus to
provide a broad view of current legal, political, and social
developments. Our mission is to serve as a valuable resource
for practitioners, policy makers, and concerned citizens promoting sustainable development throughout the world.
Sustainable Development Law & Policy prints in
accordance with the standards established by the Forest
Stewardship Council® (“FSC®”) that are designed to eliminate habitat destruction, water pollution, displacement of
indigenous peoples, and violence against people and wildlife
that often accompanies logging. Achieving FSC Certification
requires that every step of the printing process, from lumber
gathering to transportation to printing to paper sorting, must
comply with the chain of custody established by the FSC
which runs a strict auditing system to maintain the integrity
of their certification process.
Obtaining FSC certification is one way a publisher
can ensure responsible use of forest resources. Our printer,
HBP, Inc. is FSC Chain of Custody certified. (FSC® C010897).
To purchase back issues please contact William S. Hein
& Co. at [email protected]. To view current and past issues
of the publication please visit our website at http://www.wcl.
american.edu/org/sdlp. Current and past issues are also available online through HeinOnline, LexisNexis, Westlaw, vLex,
and the H.W. Wilson Company. Please note that Volume I
and Volume II, Issue 1 are published as International and
Comparative Environmental Law.
Printed by HBP, Inc., Hagerstown, MD.
Editor-in-Chief
Caitlin Buchanan
Senior Editorial Board
Managing Editor Jess Goodall
Executive Editor Brian Zack
Associate Executive Editor Ryan Schmidt
Features Editor Kelly Carlson
International Editor Taís Ludwig
Symposium Editor Katrina Tomecek
Senior Editors Harjot Dhillon, Megan Lintott,
Kimberly Reynolds, Lauren Tavar
Staff
Adam Curfman, Victoria (Tori) Frappaolo,
Robert Kelsey, Tom Martial, Nicholas Ravotti, Jon Shute,
Nakuma Wani-Kenyi, Nasser Alreshaid, Engie Mohsen,
Ingrid Lesemann, Behrad Nazarian, Diana Pineros,
Trey Levy, Hiba Ahmed, Jacob Peeples, Robert Conrad,
Kathryn Penry, Kendra Leite, Aroosa Nizami, Alexi Nathan,
Chafica Khodr Agha, Mark Hsen, Sarah Pugh, Caitlin
Cutchin, Luke Trompeter
Advisors
Amanda Leiter, David Hunter, Durwood Zaelke,
Perry Wallace, William L. Thomas, Kenneth Markowitz,
William Snape, III
Green Inks
Spring 2016
3
Lodging the Sustainable Development Goals
in the International Trade Regime: From
Trade Rhetoric to Trade Plethoric*
Nasser Alreshaid**
W
Abstract
hile the international community is stimulated by the
new Sustainable Development Goals’ impetus, the
global trade regime lives through its 40’s mid-life crisis and anticipates what it does not know what to anticipate. Views
of the multilateral trading system being stalled by a proliferation
of other preferential trade agreements signal a deep inquiry into
this policy trend. This Article intends to highlight how these global
trade challenges could be mere air turbulence if lessons are drawn
from the new Sustainable Development Goals. By introducing the
very needs of states and their constituents through these Goals, an
inclusive and more representative international trade regime could
be achieved. This does though pose a challenge of how soft and
hard norms, or formal and informal rules, may have to interact
within a cooperative diversified manner.
I. Introduction
“The worry was that globalization might be
creating rich countries with poor people”1
Joseph Stiglitz
An ongoing worrisome debate persists as to the connection
trade has with the idea of development where the very aims of
international trade are questioned in terms of an applicable universal notion. Who is trade to prosper when consideration to the
capacity and goals of states within the international community
is at stake? Constituents of state governments have been central
to this debate today, anticipating a better future for them and
future generations.
Extensive literature may have continuously approached
the connection of trade liberalization and state regulation.
Developing countries started to doubt the international trade
regime and their bargaining power to shape their own internal
policies. Nevertheless, the added narrative here is how much this
debate has evolved today from the immense social and political
capital on the international level. This capital acknowledges a
shared aim that leaves some flexibility for states to tailor what
best fits each country’s societies and further prospers the whole
human race as an outcome.
What we see today are the Millennium Development Goals
(MDGs) transforming into an ambitious sustainable development agenda, with 17 attentive goals paving the road until
2030. A global consensus is highlighted as to the acceptance
these goals seemed to generate. This does not at all imply that
4
implementation of internal development policies within the context of international trade isn’t contentious in a globalized world.
What this study aims to do is track the development agenda
within the international trade regime to see how its evolution
signals the inevitable adoption of the Sustainable Development
Goals (SDGs) to make its future more realistic and predictable. The utmost importance of this attempt is to reveal to what
extent international legal norms are in harmony when different
international regimes link the same term to their agendas. When
referring to the international trade regime, it primarily includes
the multilateral trading system, but would still highlight regional
and bilateral trends in this regard. This is not to undermine the
complexities that would come with adopting such an idea, but
what could nevertheless be accomplished is a middle ground
where international trade constituents will have to give up some
of their privileges and powers for a greater and common good.
This Article will first briefly discuss how the term sustainable development came to being. When standing on what this
notion would refer to, the study will attempt to contrast this concept with what the international trade regime holds as sustainable development, and how it may have evolved. To conclude,
solutions to reconcile the past with the future concerns as to how
to make the SDGs part of the multilateral trading system, and
perhaps inevitably regional and bilateral trade, will be addressed.
II. Development Qualified by Sustainability
When lawyers engage in litigation, in many instances they
engage in challenging the meaning of legal terms within the context of legal provisions, such as those based on the interpretation
principles in international law. These principles stem from the
Vienna Convention on the Law of Treaties (VCLT), by ascertaining the “ordinary meaning” of the term, in light of the “object
and purpose” of the treaty.2
The point here is that the interpretation of certain terms
may shape the future course of action of treaty provisions. Now,
this certainly applies to terms that may seem so ambiguous,
* The original version of this article was published in the Journal of Environmental and Sustainable Law, Volume 22, No. 2 in Spring 2016.
** Nasser Alreshaid is an SJD Candidate at American University Washington
College of Law. He received his LL.M. from NYU School of Law (ILHR Fellow), LL.M. Kuwait University, and LL.B. University of Sharjah, U.A.E. The
Mr. Alreshaid is a consultant at the World Bank Group, and in no way does this
Article reflect the views of this institution. The author would also like to thank
Professor Frank Upham for his insight on this Article.
Sustainable Development Law & Policy
perhaps even intentionally, that their ultimate application would
be questioned, unless some sense of flexibility is left to respect
differentiating treaty parties’ intentions. One of such terms could
without a doubt be “sustainable development.” This term in and
of itself has evolved in such a dynamic way that attributing an
actual meaning to it might not be attainable, such as is the case
with terms like “justice”, “right”, and “freedom.”
a. The
Evolution of the term Sustainable
Development
The term “development” can be approached from multiple
angles as to the inference that could be extracted from it. It could
be broadly viewed in terms of human freedoms it sets to prosper,
or even as a right to survival.3 On the other hand, a narrow view
of development refers to the rise of personal incomes as a result
of an increase in the gross national product (GNP), in addition
to technical and industrial advancements.4 While there could be
some added value to look into the origins and evolution of this
self-standing term, the aims
of this research go beyond
that. What is important however, is how the term has
been qualified by the term
“sustainability”.5
The international community has played a significant role in ascertaining
shared aims as to what the
term sustainable development may be perceived as.
The evolution of the term
could be broken down into
two stages, the period preceding the transition into the MDGs, and the phase representing
today’s SDGs. The two stages will be approached separately.
idea is not who is most in need of utilizing this term, rather, the
aim of this term seems to highlight the global consensus that the
agenda’s duty-bearers, predominantly states, are burdened with
such commitments that best serves the sustainable development
goals of the people of that certain society.9
As was highlighted in the earlier initiatives to qualify
development with sustainability, the efforts persisted in other
forums to link this term to their agendas. The UN Conference
on Environment and Development (UNCED) in Rio de Janeiro
in 1992 reached a general consensus amongst 176 states on
the term sustainable development as being a major aim for the
international community.10 The European Union, and both the
UN General Assembly and Security Council Resolutions also
followed this route.11
During the Millennium Summit, held from Wednesday,
September 6, to Friday, September 8 in New York, and attended
by 149 heads of states and high-ranking officials from another 40
countries, the attendees adopted the Millennium Declaration.12
The result of the adopted
Declaration was a systematic move towards soft but
widespread international
consensus to elaborate on
these sustainable development goals. 13 It is some
sort of aspirational mission
creep if put in another way.
Some described these goals
as being “all-encompassing
concepts, if not a mantra.”14
The MDG agenda included
eight goals to be achieved by
2015: 1) eradicate extreme
hunger and poverty, 2) achieve universal primary education, 3)
promote gender equality and empower women, 4) reduce child
mortality, 5) improve maternal health, 6) combat HIV/Aids,
Malaria and other diseases, 7) ensure environmental sustainability, and 8) global partnership for development, with eighteen
related specific targets, and forty-four quantifiable indicators.15
And so the issue of possible implementation in light of this over
motivated attitude is worrisome on the domestic level, which
continues into the new stage.
“What we see today are the
Millennium Development Goals
(MDGs) transforming into an
ambitious sustainable development
agenda, with 17 attentive goals
paving the road until 2030.”
1. Developing the Way to the MDGs
In the early stages of fostering the term sustainable
development, the World Commission on Environment and
Development, or Brundtland Commission, published a report
called Our Common Future in 1987, which defined the term
as, “development that meets the needs of the present generation without compromising the ability of future generations to
meet their own needs.”6 Perhaps, adding an “altruistic” value to
development would ensure that present generations would act in
a way that ensures future generations would not be burdened by
past decisions that would interfere with the environment, health,
and economy and thus the capacity of the future generations to
continue this development.7
Who needs sustainable development? Developing countries? Developed? The idea is that people are the main subjects
of this agenda, as is the case with other human rights generally.8
If it makes it clearer, from a rights-based approach, no certain
category of people monopolizes this term. People living in developed countries are considered to fall under this term in their own
capacity in as much as constituents of developing countries. The
Spring 2016
2. Today’s SDGs
The journey of sustainable development creeping into new
venues continued after the MDGs, but this time the horizon was
pretty vast. On September 25, 2015, leaders from all over the
world met in New York and adopted U.N. General Assembly
Resolution 70/1 embracing 17 goals with 169 targets for the
period running until 2030.16 A sense of what sustainability meant
in terms of development to these states went as far as including
clean water and sanitation, affordable and clean energy, descent
work and economic growth, industry innovation and infrastructure, sustainable cities and communities, responsible consumption and production, life below water, life on land, and peace,
5
justice, and strong institutions.17 Mentioning the vast amount of
targets go beyond the scope of this Article and demand more
elaborate and in depth discussion. Nevertheless, what accompanies this broad consensus is a high cost.18 It is estimated that
implementing such an agenda would be valued at $5-7 trillion.19
The SDGs are part of a global structure that questions the
very role local communities have in their implementation in a
way that best fits their conditions. What these SDGs sum up to,
as was the case with their predecessors, is that they are soft in
their establishment through Resolution 70/1 (“Resolution”).20
Even in the language of the Resolution, with all the commitments the state members took upon themselves, it is intended to
guide the participating governments in implementing a national
framework within the context of a generalized versus contextualized development goals debate.21 Nevertheless, a broad and flexible tone is evident throughout the Resolution and in the Goals
themselves, which implies that governments have some space to
implement their content.
It is only clear how
unclear the future of this
agenda is. But, what these
states have done through the
General Assembly is set the
bar high for other venues. If
there is something that stands
out from all seventeen goals is
that almost any forum on the
international level could be a
stakeholder. For an international body to omit acknowledging this
new agenda would counter a new era of flexible general consensus.
a. A
“Sustainable” Development Objective in the
Trade Regime?
Recognizing that their relations in the field of trade
and economic endeavour should be conducted
with a view to raising standards of living, ensuring
full employment and a large and steadily growing
volume of real income and effective demand, and
expanding the production of and trade in goods and
services, while allowing for the optimal use of the
world’s resources in accordance with the objective
of sustainable development, seeking both to protect
and preserve the environment and to enhance the
means for doing so in a manner consistent with their
respective needs and concerns at different levels of
economic development.25
The main aspects of sustainable development emerge
from the abovementioned 1994 WTO Marrakesh Agreement
Preamble’s first paragraph.
This sets the primary objective of the multilateral
trading system. What is
important to point out is that
this provision only came into
being with the Marrakesh
Agreement establishing the
WTO. What the multilateral
trading system represented
before was a different version of what global trade meant, a
General Agreement on Tariffs and Trade (GATT) version.26
GATT preceded the WTO as an agreement where parties
collaborated their efforts in order to facilitate the liberalization
of trade amongst them.27 What ended up being the main objective or free trade ideology of the parties relied on mainly two
dimensions, (1) market access on the one hand, which implied
eliminating trade barriers that included tariffs, quotas, and subsidies; and (2) non-discrimination between the parties of GATT
was an aim that attracted global consensus.28 These two features
have persisted in the WTO.29 What proceeded was the push by
developing countries to address more development needs, which
were raised during the four-year Kennedy Round from 19631967, with minimal results.30 The structure of GATT remained,
but a GATT Committee on Trade and Development was established. Institutionally, the United Nations Conference on Trade
and Development (UNCTAD) was also created in Geneva in
1964 to address the North-South divide.31
The negotiation of the Preamble of the previously mentioned
WTO Agreement may have likely been influenced by 1992’s
UNCED, but this is not undisputable.32 Another major reason
for this negotiated Preamble would be the rise of the regulatory
state and the proliferation of non-tariff barriers (NTB), such as
environmental, labor related, consumer protection, and health
and safety.33 The objective of sustainable development seems to
be qualified by the optimal use of resources.34 However, there
is nothing that implies that it does not have broader inference
“It is estimated that implementing
such an agenda would be valued
at $5–7 trillion.”
III. What’s Trade Got to do with it?
The relationship international trade has with the previously
mentioned SDGs is mentioned in this chapter. International
trade in the context of this study refers mainly to the multilateral
trading system, i.e. the World Trade Organization (WTO),22 in
addition to other preferential trade agreements (PTAs) on the
regional, multi-regional, and bilateral level, in order to contrast
what these latter agreements may have done differently from the
WTO.
The recent proliferation of PTAs is certainly alerting, but
what remains is that this proliferation is not completely in discontent from the WTO provisions, including their plurilateral
agreements.23 What the WTO mainly did for these other agreements is structure their main features.24 The issue that remains
essential for a collective progressive and successful international
trade regime is the extent to which these sustainable development policies have a role.
What this chapter therefore sets to discuss is the current
structure of sustainable development within the WTO. After this,
a theoretical discussion on how the new SDGs could be linked
to the current WTO provisions would be attempted. When the
WTO correlation to the SDGs is reviewed, bilateral, regional,
and multi-regional PTAs will be highlighted as to their trend
towards the SDGs.
6
Sustainable Development Law & Policy
when also connected to the ensuing sentence mentioning environmental protections and preservations, and enhancements to
economic development conditions.35
The problem with this objective is that what Robert Howse
refers to as “meta-structures” of the WTO, leave but minimal
space for state members to engage their sustainable development
policies in the midst of over-obligation.36 These meta-structures
refer to the formal WTO rules and informal ones on different
topics, possessing normative value, which eventually guide the
negotiation table in terms of what is prioritized.37 This raises
many issues of inclusiveness and transparency when such metastructures are results of bargaining power.38 The Preamble’s
language anticipates the role states retain to shape their internal policies within the meaning of economic growth, precisely
with the phrase “to enhance the means for doing so in a manner
consistent with their respective needs and concerns at different
levels of economic development.”39 The main debate remains as
to whether trade liberalization is an end in itself rather than a
means, and whether it is acceptable for a number of state members to lag behind, as long as their contribution to the global
economy is minimal.40
To be fair, progress towards recognizing the difficulties
certain countries face in implementing different trade obligations at the expense of what is perceived as local sustainable
development policies fought its way through to ultimate recognition, minimal though, as there is much to be done. Special and
Differential treatment (S&D) for instance, were reserved for
developing countries.41
One point that has to be brought up in order to proceed
with this Article is the 2001 Doha Development Round (DDR)
Agenda. The intent is not to discuss its detailed failure, which
it seems to have generally incurred until this day; rather, the
intent to underscore sustainable development even more was
certainly present.42 In the Doha Ministerial Declaration in
Paragraph 6, stated:
We strongly reaffirm our commitment to the objective of sustainable development, as stated in the
Preamble to the Marrakesh Agreement. We are convinced that the aims of upholding and safeguarding
an open and non-discriminatory multilateral trading
system, and acting for the protection of the environment and the promotion of sustainable development
can and must be mutually supportive. We take note
of the efforts by members to conduct national environmental assessments of trade policies on a voluntary basis. We recognize that under WTO rules no
country should be prevented from taking measures
for the protection of human, animal or plant life or
health, or of the environment at the levels it considers appropriate, subject to the requirement that they
are not applied in a manner which would constitute
a means of arbitrary or unjustifiable discrimination
between countries where the same conditions prevail, or a disguised restriction on international trade,
Spring 2016
and are otherwise in accordance with the provisions
of the WTO Agreements.43
There is clear emphasis in this Declaration that environmental preservation and protection, in addition to social development, are just as important to the WTO as any perceived mere
economic aim.44 What global trade should aim to do in the language of the Declaration is far more broad, and this implies that
developing countries realized first, the implications of their lack
of capacity, and second, that the dynamics of domestic input has
changed to demand more inclusiveness.
WTO Jurisprudence:
The WTO Appellate Body in the Shrimp-Turtle case interpreted GATT 1994 Article XX in light of the WTO Preamble,
and in accordance with the Dispute Settlement Understanding
(DSU) and VCLT.45 GATT Article XX discusses what’s called
“General Exceptions”, acknowledging other policy objectives,
including the protection of human, animal, and plant life, the
conservation of exhaustible natural resources, and the protection
of public morals.46 These reasons lead to circumventing the goals
of free trade that denote market access and non-discrimination.
In this case, the Appellate Body stressed the transformation
of the scope of Article XX.47 The basis for this was the evolution
of the Preamble of the WTO from GATT.48 The original objectives of GATT were qualified by the new Preamble, in which
other provisions of the WTO are no longer confined to.49 The
Appellate Body reports:
We note once more 144 that this language demonstrates a recognition by WTO negotiators that optimal use of the world’s resources should be made in
accordance with the objective of sustainable development. As this preambular language reflects the
intentions of negotiators of the WTO Agreement,
we believe it must add colour, texture and shading
to our interpretation of the agreements annexed to
the WTO Agreement, in this case, the GATT 1994.
We have already observed that Article XX(g) of the
GATT 1994 is appropriately read with the perspective embodied in the above preamble.50
There should be consideration as well to the fact that the
Appellate Body did urge a more balanced approach between the
different provisions of the WTO Agreements and its Preamble.
However, such balancing could be perceived as referring to
procedural fairness, including transparency, rather than the substance of the issue.51
A broad substantively unqualified term of sustainable development could mean states would be able to interpret their measures in light of what they perceive the objective to encompass.
But then again, too much flexibility would also serve little to
assist other states with legitimate expectations.
b. The Issue of
Linkage: Reading the New SDGs
Related Provisions
into International Trade
The dilemma of the implications of an outreaching SDG
agenda is of utmost importance, not only to international trade
7
itself, but also to the whole international law framework we
live in today. U.N. Department of Economic and Social Affairs
(DESA) Under-Secretary General Mr. Wu Hongbo said, when
addressing U.N. General Assembly Second Committee earlier
this fall, “[t]his year could well be remembered as the year when
policy integration for sustainable development truly became a
common global vision.,”52 and, “[w]e have seen unprecedented
global cooperation to address some of the most challenging
issues of our time.”53
A proliferation of different forums and venues on the international level may have been guided by establishing specialized
organizations to accompany the cooperative needs of states.
Easier said than done is what this proved in our current day. In
today’s world, are issues really disintegrated when it comes to
acknowledging state regulatory policies?
As Joost Pauwelyn puts it in his book Conflicts of Norms
in Public International Law: How WTO Law Relates to Other
Rules of International Law, when referring to “nobler goals”
that trade should pursue, “[w]hen genuinely pursued, that is,
when not abused as a disguise restriction to trade, such goals
must trump the instrument of trade, even if they are not set out
in the WTO treaty itself ”54 and, “WTO law is not a secluded
island but part of that territorial domain of international law.”55
His point being, the aim is achieving unity in international law,
not fragmentation.56
This brings back the idea of “rights as trumps”, in the sense
late Ronald Dworkin tried to emphasize, as an analogy for the
international sphere of relationships.57 Or as international law
might know it, a sort of jus cogens for individual states that
overcome what utilitarian goal has been adopted by a number of
states, such as restricting trade barriers.58
1. A Public International Law Linked Framework:
Hard v. Soft Law Dichotomy No More
The discussion at this point should not simply imply that
debates on whether the presence of an international legislature is
of central importance, albeit, its shaping the discourse of international law. There is much to talk about on that topic, and this
Article can bare no such extensive task. Nevertheless, the issue
of the normative value of international legal rules, if it was accurate to say so, will begin from the end of this debate, and engage
instead in newly developed treatises on the international level.59
The International Law Commission, after setting up a study
group on the topic of “Fragmentation of International Law”, has
opted for a more coherent approach when it comes to the different norms on the international level.60 It has adopted a strong
presumption against normative conflict in one of its reports.61
Within this debate on conflict of norms, inconsistencies of
obligations could subsist as another category of such conflict.62
When different obligations by different sources occasionally collide, or appear to at least, states seem to be left with a “cherry
picking” scenario.63 When shared goals incite parties to different multilateral treaties through “treaty-based sub-systems” to
inflict obligations on their parties, or even members, when the
8
end product is an organization, there exists norms that states
may favor differently within dissimilar situations.64
Now, within the hierarchical context of international legal
norms, different stages can be approached to resolve conflicts
between norms.65 Perhaps a lex posterior attitude would first be
attempted as between supposedly conflicting treaty provisions.66
However, when a “living treaty” exists, such as the WTO, this
method of conflict resolution could be of minimal effect.67
Hence, resorting to a lex specialis technique to disentangle conflicting debates would be more relevant, as is the case with environmental issues being dealt with by Multilateral Environmental
Agreements (MEAs) as opposed to a purely trade-based treaty.68
In this regard, Gregory Schaffer & Mark Pollack discuss
conditions in which the relationship between soft and hard law is
of an “antagonistic” nature, and the interaction of hard and soft
law regimes:
[C]an lead to the hardening of soft law regimes,
resulting in more strategic bargaining and reducing
their purported advantages of consensus-building
through information-sharing and persuasion, and the
softening of hard law regimes, resulting in reduced
legal certainty and predictability. This result is more
likely where there is distributive conflict between
powerful states.69
This underscores the reality of how states themselves actually
employ a hard or soft law approach in the context of these two sets
interacting, instead of the norms being classified as such.70
2. A WTO Induced Approach to Linking the SDGs
The Director-General of the WTO Roberto Azevedo commented on the new SDGs by ensuring that trade has and always
will support development goals.71 That recent jurisprudence of
the Organization’s Dispute Settlement Body, on issues related
to the relationship between trade and renewable energy and
preservation and management of exhaustible natural resources
could help instigate trade rule amendments.72 Moreover, the
fresh WTO Public Forum, commemorating 20 years of the
Organization’s establishment, reiterated this discourse within
its program.73 This elicits a sort of lex lata version of what the
SDGs see international trade as.
In his speech during the United Nations summit to endorse
the “2030 Agenda for Sustainable Development”, Azevêdo
ensured, “ I am pleased to join you today, and to pledge that
the WTO will play its full role in delivering the Sustainable
Development Goals.”74 When elaborating, he explained how his
Organization has been playing a role in:
• Goal 2 looks at reforming agricultural markets to end
hunger­—which is a key element of our agenda at the WTO.
• Goal 3 reaffirms the flexibilities offered by the WTO’s rules
on intellectual property to protect public health.
• Goal 8 calls for the increased support for the poorest countries to participate in global trade, particularly through the
WTO’s Aid for Trade initiative.
Sustainable Development Law & Policy
• Goal 14 calls for action on fisheries subsidies to tackle
over-capacity and over-fishing, which again is an important
element of our work.
• And Goal 17 calls for the conclusion of negotiations on the
WTO’s Doha Development Agenda.75
The last goal specifically, is of relevance to the issue of
linkage when it comes to the multilateral trading system in
particular. This system would have to push for a “universal
rule-based, open, non-discriminatory, and equitable system.”76
Goal 17 of the New SDGs aims to “strengthen the means of
implementation and revitalize the global partnership for sustainable development.”77 This Goal is thus, an exploration of
what the WTO provisions set to achieve in relation to other
international legal norms.
Rather than an “integral type” agenda, the WTO provisions
are of a “reciprocal” nature when it comes to its member states.78
As such, its provisions meet the diversity needs of its members
within a larger international law framework.79 What should be
underlined, as Joost Pauwelyn stressed, is that the WTO is but a
component of what is known as international law.80
In the face of non-WTO
norms, it is the WTO Panel
and Appellate Body who are
left with a reconciliatory situation. The WTO is obliged to
apply WTO provisions, referring to its constituted agreements.81 What is nonetheless
at stake here is that when
these non-WTO norms represent the “common interests”
of WTO members, it is these
WTO quasi judicial bodies
who have to live up to these
other conceding commitments when interpreting their very own
agreements.82 The VCLT supports this contention in the context
of the General Rules of Interpretation in Article 31/3, where,
“There shall be taken into account, together with the context: (c)
any relevant rules of international law applicable in the relations
between the parties.”83 The process may extend from an interpretive one to an actual application of non-WTO rules.84 This
should not affect the members’ relationships with third parties
though. What is crucial here is that the SDGs shouldn’t be seen
as contradicting trade-related provisions within the WTO, in this
context. They are actually both on par and aligned to work for a
common goal, allowing some flexibility in the means in which
this can be achieved.
What is as important in order to implement, or perhaps
empower, the content of the SDGs within the multilateral trading system, is the notion of “good governance”.85 It is only fair
that the emphasis be not only on the outcome consensus where
sustainable development is “sustained” in the policies and practices of international forums, like the WTO.86 States themselves
have to contribute to this balancing effort in trying to shape
their policies. This should be done in a way that would adhere to
development goals of utmost importance locally, but still minimally affects liberalized trade relationships with other trading
counterparts with the multilateral trading system. A significantly
complex balance is expected from states, which is by far no easy
task, and should ensure that states do not ultimately externalize
their internal policies.87
There remains much to be done on the multilateral level
when it comes to implementing the SDGs within the existing
legal framework. The legal structure of certain departments in
this organization must allow for the presence of other stakeholders, who oversee the very implementation of the SDGs.88 These
counterparts would include UNDP, UNCTAD, and UNHCHR, in
addition to other NGOs too.89 This reform to WTO Committees
allows first of all, for a transparent process, and secondly, for
a sort of inevitable interdisciplinary assistance in drawing on
international legal norms that mirror the concerns of states
exemplified by the SDGs.90
The WTO has been facing problems as to concluding
negotiations related to key trade issues, one of which is agriculture.91 When the current multilateral trading system represents
161 member states, in which
about 98% of the global
market is covered, negotiations without a doubt become
more complex.92 Not only is
the South widely represented
in this Organization, but also
the North faces competing
perspectives. 93 The BRICs
is fully represented in this
system, and so key global
market stakeholders are
included, such as China and
Russia.94 The final bargaining
word may not be exclusive to the West after all when it comes to
today’s international trade policies.
“They are actually both on
par and aligned to work for a
common goal, allowing some
flexibility in the means in which
this can be achieved.”
Spring 2016
c.
Regionalism and Bilateralism when
Multilateralism Fails: Redefining Trade
Bargaining Power on the International Level
Today’s phenomenon of a proliferation of PTAs is under
high scrutiny.95 In its World Investment Report 2015, UNCTAD
discusses the global foreign direct investment dimension, which
necessarily shares many of the characteristics of today’s international trade regime, especially where agreements regulate both
trade and investment.96 This Report highlights the stable conclusion of international investment agreements (IIAs), whereas
the number bilateral investment agreements (BITs) declined
than the previous year.97 There is an additional 31 IIAs, which
raises the number of total IIAs to 3,271, in which 2,926 are BITs
and 345 are other IIAs, by the end of 2014.98 And while BITs
decline, more regional and sub-regional negotiations take place,
including the Trans-Atlantic Trade and Investment Partnership
(TTIP), the Trans-Pacific Partnership (TPP), Regional
Comprehensive Economic Partnership (RCEP), Tripartite, and
9
Pacific Agreement on Closer Economic Relations (PACER) Plus
negotiations involving 90 countries.99
The report noted that main incentives for countries to
review their model investment and trade policies are SDG
related objectives.100 Twelve countries in Africa, ten in Europe
and North America, eight in Latin America, seven in Asia, six
economies in transition, and four regional organizations engaged
in this trend.101 At least one provision of these newly reviewed
agreements include ensuring the right of states to regulate for
public interest purposes, mainly, to meet sustainable development targets, which included health and safety policies, and
environmental standards.102 Perhaps, displaying some of these
recent trends would clarify the situation more.
1. Trends and Figures
Revealing some of the contents of the most recent different model agreements, and concluded agreements themselves, would supplement the results the previous 2015 World
Investment Report reached. The trend towards bilateralism,
regionalism, and multi-regionalism is not unique to a certain
region.103 Interestingly, it is not really even a continuum of the
North-South divide, or a developed vis-à-vis developing country tension.104 Both developed and developing countries have
adopted SDG oriented agreements.105
High-income Organization of Economic Cooperative and
Development (OECD) member Norway is one example of this
shift of policies to meet the needs of sustainable development.106
Its 2015 Model BIT is evidence of the state’s intentions to meet
the sustainable development needs of its citizens.
This Model BIT initiated its text by emphasizing the aim
of investments geared to serve sustainable development needs
in their economic, social, and environmental dimensions. 107
This included “high levels” of environmental, health, safety,
and labor protections.108 The Preamble reiterated the importance of sustainable development objectives that fit national
and global standards. 109
The Norwegian Model BIT went further to include sustainable development safeguards within the contents of its provisions. Article 11/1, under “Not Lowering Standards”, mentioned:
The Parties recognize that it is inappropriate to
encourage investment by relaxing domestic health,
human rights, safety or environmental measures
or labour standards. Accordingly, a Party should
not waive or otherwise derogate from, or offer to
waive or otherwise derogate from, such measures
as an encouragement for the establishment, acquisition, expansion or retention of an investment of
an investor.110
What followed in Article 12, entitled “Right to Regulate” was:
Nothing in this Agreement shall be construed to
prevent a Party from adopting, maintaining or
enforcing any measure otherwise consistent with
this Agreement that it considers appropriate to
ensure that investment activity is undertaken in a
10
manner sensitive to health, safety, human rights,
labour rights, resource management or environmental concerns.111
This is one of the most recent model BITs that provides
strong support for sustainable development objectives.112
High income Norway sets a clear example on how the SDGs
are shared interests amongst the different countries across the
globe. The language of the Norwegian Model BIT provisions are
pretty firm on trade and investment serving sustainable development, which gives states flexibility to implement policies in
this regard. The Preamble itself, after mentioning the objective
of investments being sustainable development, and including
examples of such, pressed for local policies to be congeal to this
aim by the phrase “in accordance with relevant internationally
recognized standards and agreements in these fields to which
they are parties.”113 This concluding sentence adds much leverage to the new SDGs, where they can guide local policies and
ensure they fall within the scope of a global consensus with the
adoption of the SDGs.
The 2012 U.S. Model BIT in comparison omitted mentioning the term “sustainable development” from its Preamble.114
It instead included the substance of this term, referring to the
aim to “maximize effective utilization of economic resources
and improve living standards,” and drawing on investor-state
dispute related requisites of the term “investment.”115 Where, as
in the Salini test, the International Center for the Settlement of
Investment Disputes (ICSID) Tribunal concluded that an investment infers, “contributions, a certain duration of performance
of the contract and a participation in the risks of the transaction.
The Conventions Preamble of the ICSID Convention may add
the contribution to the economic development of the host state
of the investment as an additional condition.”116 In this case, the
Tribunal, considered infrastructure construction in Morocco,
and the technical expertise, referred to as “know-how,” which
the Italian company offered to the host state Morocco, as constitutive of the economic development element of the investment.117 The U.S. Model BIT is not really an outlier because it
appears to have engaged in identifying sustainable development
components reserved for state regulation without mentioning the
magic word, “sustainable development.”118
On a regional note, and in the context of the African nation,
the Southern African Development Community (SADC) Model
BIT template of 2012 represents a “southern” shared perspective on implementing sustainable development. The Preamble
set the intentions of the parties’ investments to fulfill sustainable
development objectives in a similar manner as the Norwegian
Model BIT.119 The extensive template, however, leaves the term
sustainable development undefined, following the trend of other
comparative approaches.120
The SADC Model BIT includes environmental and social
impact assessments provisions, and it sets the threshold to
the highest standard, be it the national standard or that of
the International Finance Corporation’s (IFC) Performance
Standards on Environmental and Social Impact Assessment.121
The international standards are invoked once more to ensure that
Sustainable Development Law & Policy
some sort of technically screened efforts monitor local policies,
although it may not be confined to this particular IFC source.122
This Model BIT particularly highlights the precautionary principle as being a pre-requisite for any investment.123
After stressing the right of host states to regulate in the
name of sustainable development objectives in Article 20 of
the SADC Model BIT, it went further to stress the possibility
of addressing past racial injustices in the African region within
new investments.124 The South African Investment Treaty language influenced the wording of this article as the Commentary
put it.125 This would be aligned with SDG goal 10, “reducing
inequality within and among countries.” Further, perhaps the
newly introduced goal 16 would embody this as well by “promoting peaceful and inclusive societies for sustainable development,
provide access to justice for all and build effective, accountable,
and inclusive institutions at all levels.”126 The interdisciplinary
sensation in Article 21/3 and SDG’s produce, an inclusive only
process, results in sustainable development intersecting with
transitional justice goals where trade, sustainable development
and transitional justice serve certain communities, such as postconflict South Africa.127
The extensive Eurasian Economic Union-Vietnam PTA
offers a whole Chapter entitled “Sustainable Development.”128
It defined the term’s components as, “The Parties recognize that
economic development, social development and environmental
protection are interdependent and mutually supportive components of sustainable development.”129 This Agreement gave
consideration, as it did in its Preamble, to the different levels
of development of its parties, and it considered policies in this
direction as part of the sovereignty of states, with the obligation
on its parties not to abuse their policies in order to discretely
adopt protectionist measures.130 The Agreement consequently
illustrated a framework for cooperation amongst its parties to
achieve sustainable development objectives.131
The mega-regional agreement mentions the term sustainable development in the context of environmental protection.132
This seems to imply that sustainable development has been ultimately confined to environmental development, but the ensuing
provisions below counter this intuition with economic and even
cultural development avenues. This certainly signals though
the strength of environmental concerns within this agreement.
The Agreement’s Preamble provides the aim to, “promote high
levels of environmental protection, including through effective
enforcement of environmental laws, and further the aims of
sustainable development, including through mutually supportive
trade and environmental policies and practices.”133
A rather distinct cultural blend or preservation was also
included in the text of the TPP.134 An insinuation of a rather
sustainable perspective on the maintenance of local ownership
over trade rules seem to be protected through their participation,
where Article 29.8 mentions, “Subject to each Party’s international obligations, each Party may establish appropriate measures to respect, preserve and promote traditional knowledge
and traditional cultural expressions.”135
Spring 2016
Furthermore, Chapter 23 of the TPP is devoted fully to the
idea of “development.”136 It elaborates development on many
of its aspects, and is used sometimes interchangeably with the
term “economic growth.”137 The Agreement, nevertheless,
emphasizes the joint role in achieving development objectives
in Article 23.6, including working with bilateral partners, private
companies, academic institutions, and non-governmental organizations (NGOs).138
Chapter 20 stands out when it comes to environmental
concerns under the rhetoric of sustainable development.139 This
Chapter offered extensive support to environmental concerns,
linking many other agreements, i.e. Multilateral Environmental
Agreements (MEAs), and empowering other actors, such as
private partners.140 The Chapter emphasizes through Article
20.2 that environmental protections are of a cooperative nature,
thus, local environmental laws or measures shouldn’t be used
to disguise protectionism or restriction on trade and investments
between the parties. Policy or standard “coherence” in another
sense is what the Agreement appears to be pushing for, although
this delicate balance could prove more complex in practice.141
This is especially true when considering that ensuing Article
20.3, “General Commitments,” stresses the importance of state
owned and initiated environmental policies as recognition of
state’s sovereignty.142
What captivates this idea of a qualified type of regulatory practice in the TPP is the whole chapter on “Regulatory
Coherence.”143 The idea within this Chapter evolves around a
harmonized status quo, in which “sovereign” states would draw
on good practices in “planning, designing, issuing, implementing, and reviewing” their domestic regulatory policies to achieve
their objectives, while still maintaining a cooperative crossborder relationship to further the main objectives of the TPP.144
The same Chapter steers states to the means for reaching such
coherence, and further establishes the Committee for Regulatory
Coherence to oversee parties’ regulatory activity, and more
broadly, global best practices. 145
The idea of a coherent structure that the TPP seems to have
struck may just be a restatement that harmonized complementarity between trade agreements remains desirable. The bilateral,
regional, and multi-regional trade phenomenon is not completely
disintegrated from WTO provisions. State members’ rights and
obligations under WTO provisions are referred to when establishing the foundations of other recent PTAs.146 The TPP, for instance,
ensured that it draws on the WTO members’ rights and obligations
in the Preamble itself.147 And in Article 1.2 of the TPP Agreement,
entitled “Relation to other Agreements,” the TPP reiterates the
connection of its parties to their WTO commitments.148
d. Are we going too far?
With seventeen goals and one hundred sixty-nine targets,
are the new SDGs too much for global trade to bear? Perhaps
not, when taking into consideration that the global trade regime
is not expected to act solely upon the SDGs. The proposal of
inter-agency collaboration is only logical when it comes to this
gigantic undertaking in the name of the new SDGs.149 The idea
11
of a collaborative effort would anticipate the role of all key
actors, whether private actors in the form of multinational enterprises (MNEs), small and medium enterprises (SMEs), civil
society, or governments themselves. Private standard setting
may be just as important as governmental or inter-governmental
standard setting, as is the case with global value chains (GVCs).
This may encompass a debate between a rule-based global trade
regime as opposed to a power-based one.150 It is quintessential to
comprehend informal means of standard setting to complement
hard provisions.151 It is the plot where states take a firm position
with hard treaty provisions when the compliance of other treaty
parties is crucial. Whereas, when states are faced with a scenario
that requires more flexibility to take certain actions, it would opt
for softer provisions “without institutional teeth.”152 The very
idea of a vast array of goals and targets within the SDGs makes
this perhaps necessary.
Late John Jackson discussed the importance of institutional structures to regulate global norms,153 where he refers
to this institutional feature as the “constitution” of the world
trading system.154 He emphasized this structure, in an analogy to domestic constitutions; goes further to even include
informal mechanisms and “practices”.155 He followed up with
this idea in the aftermath of the Seattle riots, challenging the
institutional structure of the WTO, and further stresses thus
far a “rule-oriented system” approach.156 Jackson accentuates
the importance of an international organization, while not able
to directly implement technical or non-technical measures for
the market economy itself, establishes rules that are necessarily “effective, reasonably efficient to implement, and credible
enough” to allow domestic policies to build upon them in
different business state of affairs.157 And although this seems
reasonable and credible in and of itself, the problem today is
that states debate the flexibility they have in implementing
technically complex rules, which is why this has partially been
acknowledged through (S&D) provisions.158
One major explanation for considering informal means of
standard setting is the fact that when it comes to multilateral and
mega-regional trade agreements, reaching an agreement amongst
a vast array of members or parties is extremely thorny.159 In
terms of incorporating the SDGs into international trade, since
they are so dynamic when tracing their history and passing
through the MDGs, a dynamic and flexible means of living up to
an this accelerating agenda, would better fit this condition, and
this is where informal standard setting can play a role.160
As for the issue of compliance with this informal standardsetting approach, there are many elements that incite, or even
force states to comply.161 Reputation cost, reciprocity, and
obtaining certain international benefits, by first meeting a certain
threshold, such as the case of the International Monetary Fund
and its Articles of Agreement, and the World Bank and its development aid dimensions, can play a crucial role.162
To clarify this informal international standard approach in
international trade, there is evidence from the Technical Barriers
to Trade (TBT) Agreement.163 This Agreement aims to ensure
that technical regulations, standards, and conformity assessment
12
procedures, are non-discriminatory and do not restrict trade,
but on the other hand allow for some policy objectives to be
achieved, such as the protection of human health and safety or
the environment, where state member measures are based on
“international standards.”164 What has been established within
the WTO as a result is the TBT Committee, which functions
in mainly two areas, reviewing member specific measures, and
strengthening the implementation of the TBT Agreement.165 The
TBT Committee highlighted six major principles in its 2000
Decision that should guide WTO members in adopting international standards that lead state regulations and measures.166 The
Principles are (1) transparency, (2) openness, (3) impartiality and
consensus, (4) effectiveness and relevance, (5) coherence, and
(6) addressing the concerns of developing countries.167 These
six principles swim in the sea of transparency and participation
amongst WTO TBT Agreement parties.168 It stressed the importance that local governments, non-governmental standardizing
bodies, and regional standardizing bodies, of which they are
members, also accept these standards, as in the Code of Good
Practice for the Preparation, Adoption, and Implementation of
Standards (“the Code”), Annex 3 of the TBT Agreement.169
The WTO Dispute Settlement Body acknowledges this
friendly shift towards soft international standard setting. The
2012 Appellate Body Report in the US-Tuna II case undertook
the task of examining the international standards that were
adopted by Mexico in order to justify its measure.170 But the
Appellate Body denied international standard status to the
adopted measure. The reason was because the process through
the Agreement on the International Dolphin Conversation
Program did not fulfill the “soft” TBT Committee Principles
of transparency and participation precisely, although they also
overlapped with the other principles, where open contribution
for other WTO members is respected.171
As for follow-up mechanisms to sustainable development
objectives in international trade, taking into consideration
the “aspirational” nature of the SDGs for states, the review
mechanisms would perhaps fit a “gentle”, but effective approach
towards trade policies.172 In Alice Tipping and Robert Wolf ’s
Working Draft on Trade and Sustainable Development: Options
for Follow-up and Review of the Trade-related Elements of the
Post-2015 Agenda and Financing for Development, they propose this review mechanism, and trace the components of this
mechanism to the different international forums, including the
WTO, UNCTAD, the World Bank, and other regional organizations such as OECD, Association of Southeast Asian Nations
(ASEAN), Asia Pacific Economic Cooperation (APEC), SADC,
and both United Nations Economic Commission for Europe
(UNECE) and United Nations Economic Commission for Latin
America and the Caribbean (ECLAC).173
The previous Working Paper identified categories, or “clusters,” of SDG topics of which international trade intersects.174
The six categories underlined comprised of the issue of reforms
of subsidies to agriculture, fisheries, fossil fuels, and enhancing
market access for small enterprises in this regard.175 Another
category was international cooperation related to technology for
Sustainable Development Law & Policy
water and sanitation, clean energy, infrastructure, and access to
medicines.176 A third cluster was the role of economic diversification, trade facilitation, and empowering global value chains.177
The following category was related to illegal extraction and
trade in natural resources and chemicals.178 The fifth category
was connected to DDR structural aims of empowering developing countries; including least developed countries LDCs’ market
access.179 Lastly, the sixth group referred to policy coherence at
the different levels, a framework that would embrace multilateral, regional, and local trade rules.180
It is also worth raising in this regard that concerted efforts
have already began taking place to implement such review
mechanisms in the face of
the complex SDGs task in its
association to trade.181 The
United Nations SecretaryGeneral has established
the United Nations System
Task Team on the Post-2015
United Nations Development
Agenda (Task Team), not only
to prepare for this agenda,
but also to follow up with its implementation.182 This Task Team
is co-chaired by the UN Department on Economic and Social
Affairs, United Nations Development Program (UNDP), and
further accumulates more than 60 different UN agencies and
international organizations, of which UNCTAD is one.183
in this manner.184 Even when shifting to international trade,
purely national regulatory measures don’t seem to easily fit into
this logic of shared values, which might explain alternations
towards regionalism in an interdependent economic world.185
Nonetheless, states do have their own worries and interests in
which the SDGs took into account when setting an elaborate
framework, coated with several technical guidelines.186
This Article has attempted to illustrate how the sustainable development agenda has evolved into what it has become
today. This agenda has encompassed a vast array of topics that
the international community agreed represents their respective
diverse needs today. In parallel to this agenda, or perhaps from
within, exists an international
trade regime struggling to
prove that domestic development needs are apprehended
within a global framework,
and as a result, a substantial
number of PTAs emerge in
response to a multilateral
trading system. What has
been addressed in these different PTAs, whether of a bilateral, regional, or multiregional
nature, are that sustainable development needs must be embarked
upon by any international trade agenda.
The burdensome task of taking into account the new SDGs
within the international trade regime requires taking “linkages”
a step further. Linking the new SDGs agenda would mean a
comprehensive, interrelated, interagency consideration, where
soft and hard law, formal and informal rules, would shape a
common end and redefine contemporary boundaries. The process is certainly costly, technically challenging, and politically
multifaceted, but possible.
“Lodging the SDGs into
international trade is no easy task,
but it is nevertheless unavoidable.”
IV. Conclusion
Lodging the SDGs into international trade is no easy task,
but it is nevertheless unavoidable. The SDGs may be teaching us
a lesson about how elaborate the issue of “linkage” has evolved
to be, and the importance of concerted cooperative solutions
Endnotes: Lodging the Sustainable Development Goals in the International
Trade Regime: From Trade Rhetoric to Trade Plethoric
1 Joseph
Stiglitz, Making Globalization Work 8-9 (W.W. Norton & Co.,
2006) (further noting that that even in developed countries, the rich were getting
richer and the poor were being faced with doubtful futures).
2 Vienna Convention on the Law of Treaties art. 31 ¶ 7, May 23, 1969 [hereinafter “VCLT”] (indicating that a “treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.”)
3 See Amartya Sen, Development as Freedom 3 (Anchor Books, NY 1st ed.,
1999); see also Upendra Acharya, The Future of Human Development: The
Right to Survive as a Fundamental Element of the Right to Development, 42
Denv. J. Int’l L. & Pol’y 345, 360-65 (2014) (providing examples of freedom
of development regarding financial and corporations).
4 See Sen, supra note 3, at 3.
5 See generally Timothy W. Luke, Neither Sustainable nor Development:
Reconsidering Sustainability in Development, 13 Sustainable Dev. 228, 228-38
(2005) (attempting to critically analyze the evolution and rhetoric of ‘sustainable’ development, in which neither leads to sustainability nor development).
6 World Comm. on Env’t and Dev., Our Common Future: Report of the World
Commission on Environment and Development 43, U.N. Doc. A/42/427 (1987).
7 See
Nico Schrijver, The Evolution of Sustainable Development in InterLaw: Inception, Meaning and Status 23-24 (Hague Acad. of Int’l L.,
national
2008).
8 See Declaration to the Right of Development, G.A. Res. 41/128, U.N. Doc.
A/Res/41/128, at art. 1 (Dec. 4, 1986) (reiterating that “peoples” are the central
subjects of this right on the premises of it being an “inalienable human right”).
9 See generally Jeremy Waldron, Duty Bearers for Positive Rights (N.Y.U.
Sch. of L. Pub. L. Research Paper Series, Working Paper No. 14-58, 2014),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2510506
(elaborating on how duty-bearers of social and economic rights could change
with the change of particular interests that are protected, and even become
multiple duty-bearers).
10 See Schrijver, supra note 7, at 24.
11 See id. (citing G.A. Res. 1483, at ¶ 8(e), UN Doc. S/RES/1483 (May 22,
2003) related to the economic reconstruction of Iraq and the conditions for
sustainable development).
12 See Millennium Summit (6-8 September 2000), U.N., http://www.un.org/en/
events/pastevents/millennium_summit.shtml (last visited Apr. 17, 2016).
continued on page 38
Spring 2016
13
Lofty Goals in Dire Times: South Sudan’s
Obstacles to Achieving the New SDGs
By Harjot Dhillon*
T
Introduction
he seventeen Sustainable Development Goals (SDGs),
comprised of a total of 169 target goals to be achieved by
2030, span a wide variety of problems that run the risk
of working against one another.1 Further, the target goals’ lofty
requirements could be challenging for countries to comply with,
especially new or least developed countries.2 It is true that the
global partnership goal would ideally provide least developed
countries (LDCs) with financial help from developed countries
to achieve sustainable development goals.3 However, there is no
guarantee that LDCs will obtain all of the resources they require
in time to achieve all SDG target goals. This is because the gap
between current sustainability practices and lofty SDGs will
require increased finances, institutional infrastructure, and other
capacity-building requirements that developed countries have no
binding commitment to provide.4
This Article will demonstrate the need for LDCs to have
flexibility in achieving SDG target goals to increase participation in the realm of the SDG framework. This flexibility would
allow LDCs to prioritize basic survival needs for citizens ahead
of other SDG target goals. By allowing LDCs to prioritize target
goals in this way, the framework would be optimized to ensure
legitimacy and compliance.
Food Security SDG
The food security SDG is an example of a lofty goal that is
too inflexible for LDCs to accomplish. Target goal 2.1 to “end
hunger” in poor and vulnerable situations specifically targets
places in which financial aid and capacity to aid may be too
diminished to reach this goal by 2030.5 It also aspires to end
all malnutrition, improving growth stunting in all children under
age five, and prescribes that all countries address health concerns
of adolescent girls, pregnant women, and elderly women.6 Target
goal 2.1 does not mention the existing societal context, however.
This will most likely alienate least developed countries (LDCs)
from the SDG framework, despite the framework’s intentions to
apply to “all countries and all stakeholders.”7
South Sudan’s Obstacles to Achieving SDGs
South Sudan in particular will have difficulty applying all of
the target 2 goals prescribed by this framework. In July 2014, the
UN Security Council declared the country’s current food crisis
the worst in the world, with at least 50,000 children at risk of
starvation and approximately 4,000,000 affected.8 To meet this
goal, South Sudan must address the internal conflict that caused
the food crisis, political and economic strife, and the 1.6 million
14
internally displaced persons whom lack basic safety and shelter.9 This makes for a daunting list of goals for South Sudan to
accomplish by the 2030 target date.
South Sudan has dealt with internal political issues since
its inception in 2011. Indeed, the political conflict between
President Salva Kiir and Vice President Riek Machar ultimately
led to the country’s current food crisis.10 Both political officials
lead different ethnic groups that target civilians based on ethnic ties.11 Numerous peace agreements have been entered and
broken, each time resulting in more violence that often targets
and impacts civilians. Despite having signed a peace agreement
in 2015, both factions have reneged on their relative political
duties, accusing each other for violating the terms of the peace
agreement.12 As a result, many civilians who were farmers that
produced the majority of South Sudan’s food were forced to
flee their homes and abandon their livelihood.13 This internal
displacement leaves many South Sudanese families vulnerable
to starvation.14
International humanitarian efforts alone have been unsuccessful in resolving the food crisis, and will likely continue to be
unsuccessful in the future. The UN Office for the Coordination
of Humanitarian Affairs (OCHA) South Sudan supports
humanitarian organizations in providing aid to South Sudan.15
In 2014, OCHA South Sudan completed 71%16 of its funding
goals; however, that percentage dropped in 2015 to 42%.17
Further, South Sudan will likely face increased food insecurity
this year. Hunger levels are likely to increase as South Sudan
exits the typically plentiful post-harvest season and enters the
lean season, when food is far less plentiful.18
Lack of domestic and international resources to combat
South Sudan’s food insecurity is a significant obstacle to accomplishing all other SDG targets. This is because successful sustainability initiatives also ensure that local communities have access
to livable conditions.19 For example, the World Wildlife Fund
found that creating long-term sustainability practices requires
addressing major health concerns of local populations.20 South
Sudan’s food crisis is an extreme version of this reality, and the
country requires significant resources to address its food crisis
before addressing target goals, such as developing clean energy
and promoting sustainable ecosystem management.21
* Harjot Dhillon is a J.D. candidate 2017 at American University Washington
College of Law.
Sustainable Development Law & Policy
A Solution for South Sudanese-like Countries:
Prioritization of SDGs
As previously indicated, one fundamental issue with the
SDG framework is a lack of suggested prioritization. The problematic issues of achieving food security are not exclusive to
South Sudan. Violence and economic strife are current afflictions for other countries that are deeply connected to food insecurity and other issues the SDGs aim to prevent.22 South Sudan
and other like countries would benefit from prioritizing goals
because newly sovereign countries often have little capacity and
resources to address all SDG targets. Prioritizing goals that are
the most imperative allows these countries to meet their citizens’
needs staying within the SDG framework.
The new SDG regime dooms countries like South Sudan
from meeting its lofty target goals at the onset. Thus, there is a
need for a longer-term institution, the implementation of which
could make these goals actually ‘sustainable’ for new and developing countries. This institution could create structured steps for
each country to take toward achieving sustainable development
goals, paying attention to the fundamentals and internal steps
new and developing countries so desperately need to address.
The first step would include achieving basic survivability in the
country. Thus, South Sudan would need to first focus on ending
its food crisis and economic strife before moving on to achieving
other sustainability goals with a more global impact.23
Without a long-term institution for sustainable development
as described, subsequent global goals geared toward creating
sustainable development standards may diminish in legitimacy
and work against global sustainability efforts altogether. Where
basic survival is at stake, many of the other sustainable goals
cannot be achieved. With sustainability goals running the gamut
from reducing inequality to sustainably managing forests, a
prioritization of the current framework is necessary to ensure a
successful implementation for all countries—new, developing,
and developed.
Endnotes: Lofty Goals in Dire Times: South Sudan’s Obstacles to Achieving
the New SDGs
1 See
generally The 2030 Agenda for Sustainable Development,
United Nations, https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20Sustainable%20Development%20web.
pdf.
2 See James MacCormack and Sarah Stroup, Will SDGs lofty ambition undermine advocacy to achieve them?, Open Democracy (Sept. 25, 2015), https://
www.opendemocracy.net/openglobalrights/charles-f-maccormack-sarah-stroup/
will-sdgs-lofty-ambition-undermine-advocacy-to-ac.
3 See The 2030 Agenda for Sustainable Development, supra note 1 (discussing Goal 17.2 specifically).
4 See id. (discussing means of Implementation).
5 See id. (covering goal 2.1).
6 See id. (covering goal 2.2).
7 See id. (Preamble).
8 See generally South Sudan’s Food Crisis Worst in the World, BBC News
(July 26, 2014), http://www.bbc.com/news/world-africa-28502260.
9 See Civil War in South Sudan, Council on Foreign Relations (Mar. 31,
2016), http://www.cfr.org/global/global-conflict-tracker/p32137#!/conflict/
civil-war-in-south-sudan.
10 Id.
11 Id.
12 Id.
13 Id.
14 See 2015 UNHCR Country Operations Profile – South Sudan, U.N. High
Commissioner for Refugees, http://www.unhcr.org/pages/4e43cb466.html.
Spring 2016
15 See
generally About OCHA South Sudan, United Nations Office for the
Coordination of Humanitarian Affairs, http://www.unocha.org/south-sudan/
about-ocha-south-sudan/about-ocha-south-sudan (last visited Mar. 18, 2016).
16 See Funding for OCHA South Sudan, United Nations Office for the
Coordination of Humanitarian Affairs, http://www.unocha.org/south-sudan/
oct-funding?year=2014, (last visited Mar. 18, 2016).
17 See id.
18 See UN agencies warn of escalating food crisis in South Sudan, Food
and Agric. Org. of the United Nations (Feb. 8, 2016), http://www.fao.org/
emergencies/fao-in-action/stories/stories-detail/en/c/382544/.
19 See Julie Oglethorp et al., Healthy People, Healthy Ecosystems: A Manual
on Integrating Health and Family Planning into Conservation Projects, World
Wildlife Fund, 1 (2008), http://assets.worldwildlife.org/publications/370/files/
original/Healthy_People__Healthy_Ecosystems_A_Manual_on_Integrating_
Health_and_Family_Planning_into_Conservation_Projects.pdf?1345737357.
20 Id.
21 See The 2030 Agenda for Sustainable Development, supra note 1.
22 See Clemens Breisinger et al., Conflict and Food Insecurity: How do we
break the links?, Int’l Food Policy Research Inst., (2014-2015) 51, 52, http://
cdm15738.contentdm.oclc.org/utils/getfile/collection/p15738coll2/id/129073/
filename/129284.pdf.
23 Further steps may include ending hunger and malnutrition, and afterwards
doubling incomes for underrepresented and targeted demographics.
15
A North-South Struggle: Political
and Economic Obstacles to Sustainable
Development
By Imrana Iqbal* and Charles Pierson**
D
I. Introduction
future?1 At
o developing countries have a
least, a future
that anyone would want to live in? We propose that the
international law of sustainable development can guide
developing countries in their attempts to raise their standard
of living. This assertion comes with a caveat. Despite the current trend of linking issues of the environment and economic
development, the developed countries have clung to their historical tendency of placing economics above concerns over equity
and poverty, and the environment. This Article argues that a
struggle between developed and developing countries explains
the fitful progress towards
global sustainability. The
developed nations pay lip
service to norms of sustainable development but compliance remains poor as the
international system has not
been given the law-enforcement machinery to compel
developed countries to alter
environmentally unfriendly
economic practices.
air-conditioners of their own just like us. Can’t blame
them for that. And when you have conversations with
poor countries, they’ll say, well, you went through
these stages of development—why can’t we?4
The developing countries correctly point out that the West
consumes most of the world’s natural resources.5 Therefore, the
West should make a majority of the reductions in natural resource
use. For instance, although it is home to no more than five percent
of the world’s population, the United States consumes 25% of the
world’s fossil fuels,6 while producing about 14% of global carbon emissions.7 Researcher Maggie Black notes the “resentment
from the developing world:
a regime of international
ecological regulation—not in
place during Western industrialization—would deny them
a ‘developed’ future.”8 By
implementing blocks, there
would be a significant shift
in the social and economic
inequality between developed
and developing countries.9
Developing countries think
that the West has reached the top of the ladder of development and
wants to push the ladder out from under poorer states.10
The South has a right to be angry, but emulating the West’s
historical path of development is not possible. An estimated
ninety percent of all future population growth is expected to take
place in developing countries which requires a significantly different approach to ensuring a habitable environment as industrialization occurs.11 The concept of sustainable development was
formulated to reconcile the conflict between economic growth
and environmental protection.12 The sustainable development
idea regards both economic growth and environmental protection as genuine goods.13 Under sustainable development, growth
is not sacrificed for the environment, nor is the environment
sacrificed for economic growth.14 By implementing sustainable
“The developing countries
correctly point out that the
West consumes most of the
world’s natural resources.”
What Sustainable Development Is and Why
It’s Needed
The developing countries aspire to achieve the same level
of economic development and standard of living as developed
countries. The West developed without paying heed to the environment. From the beginning of the Industrial Revolution in the
second half of the eighteenth century until roughly the 1960s,
developed countries either ignored or were not yet conscious of
environmental concerns. A clean environment became a priority
only after they achieved a certain advanced level of development. States of the global South ask why they should not have
the opportunity to follow the same path.2 The developing states
thus assert their right to have their coal and burn it too and to
harvest their tropical rain forests in pursuit of economic growth.3
The South’s position has been well articulated in President
Barak Obama’s 2013 speech on climate change at Georgetown
University:
Developing countries are using more and more
energy, and tens of millions of people entering a
global middle class naturally want to buy cars and
16
* Associate Professor, University of Maryland University College: teaches
courses in government and law; J.D., Duquesne University School of Law, 2007;
LL.M., University of London, 2013; M.S. Environmental Science and Management, Duquesne University, 2007.
* J.D., Duquesne University School of Law, 1998. The authors extend warm
thanks to Kirk W. Junker, J.D., Ph.D., Professor of Law, University of Cologne
for his invaluable comments on this article.
Sustainable Development Law & Policy
development goals, developing countries can enjoy sustainable
growth while protecting the natural environment.15
Developing states will not abandon development practices
that degrade the environment merely because developed states
exhort them to. These states must commit themselves to changing their own habits and provide technical and financial assistance to poor states for clean sustainable development. In theory
this concept seems easy; accomplishing this is another story.
This Article begins by tracing the origins and growth of
sustainable development in international conferences and organizations such as the United Nations (“UN”) and in the writings of scholars (section II). However, the history of sustainable
development has not been one of unqualified success. There
has been extensive state practice of opposition to sustainable
development. Section III focuses on the United States’ resistance and obstruction to sustainable development. Lest anyone
incorrectly conclude that it is only the United States that is
opposed to sustainable development, Section IV examines how
the world trading system clashes with sustainable development.
Section V examines structural and other obstacles to sustainable
development
II. Sustainable Development: The History of an
Emerging Norm?
Sustainable development emerged as a new approach
to ensuring economic growth while protecting the environment with the publication in 1987 of the Brundtland Report.16
Although the law had not been entirely indifferent to the concept
prior to this publication, the Brundtland Report is generally
regarded as setting international environmental law on the path
of sustainable development.17
The Brundtland Commission rejected the despairing thesis
that environmental problems were past repair, spiraling out of
control, and could only be averted by arresting development and
economic growth: a policy of no growth. Instead, it argued that
economic growth was both desirable and possible within a context of sustainable development.18
The current direction of international environmental law
owes much to the definition of sustainable development presented in the Brundtland Report: “development that meets the
needs of the present without compromising the ability of future
generations to meet their own needs.”19 The report emphasized
the concepts of “needs,” particularly those of the world’s poor,
and “limitations” imposed by social organizations and the current level of technological development to meet those needs.20
These two concepts of needs and limitations now delineate
international sustainability concerns and provide broad guidance
to encourage state practices for sustainable development in both
developing and developed countries.21
The Brundtland Report galvanized changes in global policy
objectives. Since the Brundtland Report, the law of sustainable development informs international environmental law and
includes within its purview both environmental and developmental issues and their social and economic dimensions, including implementation concerns.22
Spring 2016
Following the Brundtland Report, the concept of sustainable development appears in several international and national
legal instruments, reflecting concerns that go beyond economic
growth and charting goals that follow a wide range of objectives, including protection of the natural environment, promotion of sustainable economic growth, and achievement of social
development. In 1992, the United Nations Conference on
Environment and Development (UNCED), also called the Earth
Summit or the Rio Conference, outlined the profile of sustainable development in a set of principles that sought to balance the
priorities of developed and developing countries.23
According to the Rio Declaration, sustainable development
comprises intergenerational equity (Principle 3); the integration of environmental protection into the development process
(Principle 4); intragenerational equity24 and the alleviation of
poverty (Principle 5); consideration of countries’ special development and environmental needs (Principle 6); reduction of
unsustainable production and consumption (Principle 8); reductions in population (Principle 8); and effective environmental
legislation (Principle 11).
In the years following the Earth Summit, the concept of
sustainable development was sharpened in major UN summits.
Paragraph 6 of the 1995 Copenhagen Declaration, for instance,
features the interconnections between sustainable and social
development:
We are deeply convinced that economic development, social development and environmental protection are interdependent and mutually reinforcing
components of sustainable development, which is
the framework for our efforts to achieve a higher
quality of life for all people . . . .25
Paragraph 6 of the Copenhagen Declaration further underscores the importance of achieving environmentally sustainable
economic activity through practices that promote social development, particularly for the poor.
Equitable social development that recognizes
empowering the poor to utilize environmental
resources sustainably is a necessary foundation for
sustainable development. We also recognize that
broad-based and sustained economic growth in the
context of sustainable development is necessary to
sustain social development and social justice.26
In 1997, the International Court of Justice looked at sustainable development for the first time. Judge Weeramantry
concluded that sustainable development is “a principle with
normative value” whether one looks at “multilateral treaties,
international declarations, the foundation documents of international organizations, the practices of international financial
institutions, regional declarations and planning documents, or
State practice.”27
A 1999 Seminar of the Organization for Economic
Co-operation and Development (OECD), on Social and
Environmental Interfaces, accorded a place of centrality to
the quality of human life now and in the future by seeking to
17
promote developmental practices that are socially responsible,
that is, practices which strive to alleviate poverty by ensuring
that basic needs are met.
If the primary goals of environmentally sustainable development are freedom from poverty, secure
livelihoods, good health and quality of life, then
socially responsible development has to deal with
such needs as food, basic housing, access to good
water, health care (especially for children and older
members of society), sanitation, education, energy
in the form of fuel, transport, etc.28
The World Conservation Union concluded that sustainable
development means achieving a standard of living that can be
maintained for many generations. Sustainable development is
socially desirable because it meets people’s cultural, material,
and spiritual needs in equitable ways; is economically viable
because it pays for itself; and is ecologically sustainable because
it protects the viability of ecosystems.29
The broadest and most detailed instrument so far in the
development of the international law norm of sustainable development has been Agenda 21 adopted at the 1992 Earth Summit.30
Agenda 21 represents a verbal commitment by nations around
the world to take actions to further sustainable development.31
Agenda 21 is a global affirmation of the premise of the Rio
Declaration that the “right of development must be fulfilled so
as to equitably meet the developmental and environmental needs
of present and future generations.”32 Although non–binding,
Agenda 21 is an action plan for the international community to
integrate environmental and development concerns for a sustainable future.33 It places the responsibility for implementing
sustainable development principles on governments—of both
developing and developed states—in coordination with the UN,
other international, regional, and sub-regional organizations;
non–governmental organizations; and the public.34 Agenda
21’s recommendations and proposals provide an agreed upon
framework for the development and implementation of international law and policy related to global sustainable development.
As Professors Birnie and Boyle declare, Agenda 21 manifests
the understanding that sustainable development now “makes a
state’s management of its own domestic environment a matter of
international concern in a systematic way.”35
The Millennium Declaration and Millennium
Development Goals
Scott Wisor, Deputy Director of the Centre for the Study
of Global Ethics at the University of Birmingham, provides
this background:
In the late 1990s, Kofi Annan sought a way to keep
development and poverty eradication on the agenda
in an era of declining concern for global issues. His
answer was the Millennium Declaration, a striking
document ratified by the world’s governments that
declared a set of shared values and commitments to
a range of goals, which themselves built on previous
international summits.36
18
Crafted at the September 2000 UN Millennium Summit, a
third of the Declaration addresses sustainable development and
eradication of poverty.37 The Millennium Declaration calls for
measures including debt relief, “more generous development
assistance,” the end of “the unsustainable exploitation of water
resources,” passage of the Kyoto Protocol, and reaffirms support
for Agenda 21.38
The Millennium Development Goals (“MDGs”),39 which
followed a year later in Summer 2001, were a “codification of
the Declaration’s development related objectives.”40 Scott Wisor
writes: “[d]rafted in the backrooms of the UN by a small number
of high level bureaucrats from several multilateral organizations,
the MDGs were a set of eight goals, each with specific targets
and indicators against which to track the world’s progress.”41
Goal 7, “Ensure Environmental Sustainability,” explicitly
references sustainable development in its title, but all the MDGs
address matters which scholars now consider to be components
of sustainable development.42
September 2015 was the deadline for achieving the MDGs.
Doyle and Stiglitz concluded: “[T]he MDG record has been
mixed. Some goals, such as halving the proportion of people
living in extreme poverty, have been met at the global level, but
none have been fulfilled in all countries.”43
Post-2015 Development Agenda
Well before the 2015 expiration of the MDGs, the United
Nations began considering what would follow the MDGs. 44
Planning has been taking place under the rubric of the Post-2015
Development Agenda.45
The UN Conference on Sustainable Development
(“Rio+20”) held in June 2012 established an intergovernmental
working group, the Open Development Group, to formulate the
unimaginatively named Sustainable Development Goals (SDGs)
to succeed the 2001 Millennium Development Goals.46
On July 19, 2014, the Open Development Group released
a draft set of Sustainable Development Goals (“SDGs”). 47
The SDGs cover much of the same ground as the MDGs.48
However, unlike the MDGs, the SDGs divide sustainability
into several goals.49
III. U.S. Practice: A History of Obstruction
Donald Brown maintains that the United States has consistently blocked global environmental treaty-making efforts
and in doing so relinquished its past position of leadership on
international issues.50 For years, the United States hid behind
a smokescreen of pretended scientific uncertainty over climate
change.51 The United States argued that scientific evidence does
not justify corrective actions and that too little is known about
the problem of global warming to justify the costs of stabilizing greenhouse gas emissions.52 One of the last products of
the Carter Administration was a report from the President’s
Council on Environmental Quality urging the government to act
responsibly on climate.53 The Reagan Administration ignored
the report.54 Instead, the Reagan Administration (1981-89) marshaled supposed scientific uncertainty to validate its unconcern
over global warming.55
Sustainable Development Law & Policy
The U.S. government’s unwillingness to adopt a principled
stance on climate change continued into the Administration of
George H. W. Bush (1989-93). During the negotiations on what
was to become the UN Framework Convention on Climate
Change (UNFCCC),56 the United States—historically the greatest emitter of greenhouse gases—refused to submit to a formula
that would require it to reduce the amount of greenhouse gas
emissions in proportion with its past contribution to greenhouse
gas buildup.57 Instead, the United States demanded that developing nations accept responsibility greater than their due share.58
Owing to this U.S. hardline position, the FCCC contained no
enforceable targets and timetables.59 Donald Brown writes: “The
United States reluctantly agreed to make a good-faith effort to
reduce greenhouse gas emissions to 1990 levels by 2000.”60
Additionally, the United States conceded that developed nations
should make progress in reducing emissions before expecting
commitments from the developing world.61 Even these watereddown assurances succumbed to Congress’ fierce resistance,
impelled by coal and petroleum industry lobbying groups.
This course of inaction continued during the Clinton
Administration, which, despite its own inclination to act more
conscientiously, found itself helpless before a hostile Congress.62
In 1995, the new IPCC report concluded that it was now possible
to discern the human-induced climate change.63 Thereafter, the
Clinton Administration expressed subdued willingness to accept
internationally enforceable targets and binding national emissions reductions timetables.64 These were negotiated in Kyoto,
Japan in 1997.65
Negotiations at Kyoto were tense. Congress exerted its
weight to impede agreement on the principle of “common but differentiated commitments and responsibilities.”66 The international
community, by contrast, clamored for the United States to make
a meaningful and legally binding pledge to reduce its emissions
levels.67 The United States finally agreed to a 7% reduction below
1990 levels by 2008-2012 while other nations agreed to the United
States’ proposed “flexibility mechanisms.”68 Yet, after Kyoto, the
Clinton Administration announced that it would not seek ratification of the Kyoto Protocol until “China and other developing
nations agreed to limit their emissions, something that they had
objected to doing before the developed world acted.”69
The Administration of President George W. Bush (2001-09)
achieved a new low in shunning responsible action on climate
change. The Bush Administration pressured federal agencies and
scientists working for the federal government to exaggerate the
degree of uncertainty over the existence of anthropogenic climate
change.70 The Bush Administration also trotted out other old
excuses: cost to the American economy in terms of lost jobs and
reduced GDP71 and the failure of the developing world to make
commitments.72 In 2001, the Bush Administration renounced
the Kyoto Protocol, regarding it as inimical to U.S. economic
interests.73 Later, in the same year, when a National Academy
of Sciences report confirmed that global warming was getting
worse, President Bush acknowledged the report but insisted that
there was too much scientific uncertainty to justify the economic
Spring 2016
costs of committed action.74 In this President Bush proved himself the faithful servant of coal and petroleum groups.75
George W. Bush did not deny the reality of climate change;
he merely did nothing about the problem.76 In April 2008, with
less than a year remaining before he would leave office, Bush
proposed his boldest climate initiative: voluntary caps.77 “[T]
here is a wrong way and a right way to approach reducing greenhouse gas emissions,” Bush said, not adding that he was committed to the wrong way.78
The Obama Administration, 2009 to the Present
The environmental movement had great hopes for Barack
Obama.79 During his 2008 Presidential campaign, candidate
Obama promised to make addressing climate change a priority;80
however, President Obama has consistently disappointed environmentalists. Disillusion with Obama set in early. December
2009 saw the Copenhagen Climate Conference. Copenhagen
resulted in what Naomi Klein calls a “pitiful deal.”81 Under the
Copenhagen Accord, Klein writes:
the major polluting governments—including the
United States and China—signed a non-binding
agreement to keep temperatures from increasing
more than 2 degrees Celsius above where they
were before we started powering our economies
with coal.82
The trouble is, keeping world temperatures below 2ºC
is onlythe bare minimum threshold for preventing runaway
warming.83 2ºC represents a tipping point beyond which rapidly rising temperatures are irreversible.84 We aren’t at 2ºC yet,
but even if the world does not break through the 2ºC ceiling,
our planet will likely experience a catastrophic rise in sea levels which will inundate major cities from Mumbai to Miami.85
Millions of human beings are already living in a post 2ºC world
of rising tides, dying crops, and more and more record hot
days.86 The climate groups who attended Copenhagen hoped to
limit world temperature rise to no more than 1.5ºC.87 Instead,
environmental activist Bill McKibben estimates that the “commitments” made at Copenhagen will result in a devastating 3ºC
temperature increase.88
Environmental groups had also hoped that the attendees at
Copenhagen would agree to cuts in world carbon emissions of
80% by 2050, but that goal was eliminated from the final agreement.89 The United States pledged to reduce carbon emissions
by only 17% below 2005 levels by 2020.90 The emissions cuts
were to have been achieved by a cap-and-trade plan, part of the
ill–fated Waxman-Markey bill.91 Under cap and trade, tradable “carbon credits”—permits to pollute—would be assigned
to corporate polluters in the United States.92 A polluter could
obtain additional credits by purchasing from other polluters or
by participating in “offsets”: projects, such as planting trees,
which would soak up carbon in the atmosphere.93 In theory, cap
and trade would raise the cost of emissions to corporate polluters
and spur development of renewable alternatives.94
The bill passed the House of Representatives, 219–212.95
However, Senate Majority Leader Harry Reid (D), decided not
19
to introduce Waxman-Markey into the Senate because Reid
calculated that there were insufficient votes there for the bill to
pass.96 By late July 2010, Waxman-Markey was dead.97
Waxman-Markey failed even though it was a strongly procorporate bill.98 Waxman-Markey “[gave] billions of dollars in
handouts to fossil fuel companies and practically a license to
print money from carbon offsets and credits.”99 Trading of carbon credits promised a bonanza for Wall Street traders.
Cap–and–trade failed, but Obama did not abandon the
goal of reining in carbon emissions. Speaking at Georgetown
University on June 25, 2013, President Obama announced a
major new initiative to address climate change.100 Obama proposed setting federal limits on carbon emissions on both new
and existing coal–fired power plants, which would cut 2005
emissions levels 30% by 2020.101 He promised that the cuts
would not sacrifice strong economic growth and job creation.102
The Clean Power Plan, as it is called, has met strong Republican
opposition and resulted in two pending federal lawsuits: West
Virginia v. EPA103 and Murray Energy Corp. v. EPA.104
One significant success for the President is the November
2014 bilateral carbon agreement with China.105 The United
States and China produce 45% of the world’s GHG emissions.106
China does much of its polluting on behalf of U.S. businesses.
Much of China’s emissions
come from factories owned
by U.S. corporations operating in China, such as General
Electric, General Motors,
Apple, Johnson Controls,
and Caterpillar.107 Thanks to
outsourcing, U.S. corporations now vicariously pollute in China.108 By shifting its emissions overseas, the United
States gets to take credit for cutting its carbon emissions more
than it actually has.109 Curbing China’s carbon emissions will
be impossible without reigning in U.S. corporations.110 The
two countries agreed to jointly reduce their GHG emissions.111
The US will cut its emissions 26% to 28% below 2005 levels
by 2025,112 while China pledges that its emissions will cease to
grow by 2030.113 However, it should be noted that the agreement
is non-binding.114
Much less successful was the Paris Climate Summit held
from November 30, 2015 to December 11, 2015.115 In a different
world, a binding international agreement to cut greenhouse gas
emissions would have come out of the Paris Summit Each of
the more than 190 countries participating submitted an Intended
Nationally Determined Contribution (“INDC”), setting out the
amount by which each nation was willing to cut its greenhouse
gas emissions.116 The United States submitted an INDC promising to cut GHG emissions nearly 30% from 2005 levels by the
year 2025.117
The process had two fatal flaws. The first is arithmetical. The
2015 Paris Summit had the same goal as the 2009 Copenhagen
Climate Summit (“COP 15”): to prevent average temperatures from rising more than 2ºC from where they stood at the
beginning of the Industrial Revolution.118 But the participating
states’ commitments did not add up. Even if all INDCs were faithfully adhered to (a huge “if ”), global temperatures would increase
to approximately 3ºC by the end of the century.119 The second
fatal flaw is that the Paris Accord, like the Copenhagen Accord
before it, is non-binding.120 “A fraud” is how former NASA scientist and climate change pioneer James Hansen summed up the
Paris Summit.121
IV. Does Trade Trump Environment?
Professor Philippe Sands has remarked that there are two
principal challenges to the development of international sustainable development law.122 The first is to develop rules that recognize
“the need to reconcile the inherent and fundamental interdependence of the world environment with the sovereign world of
independent states.”123 The second challenge is “defin[ing] the
relationship between international environmental law and other
areas of international law, particularly in the economic and social
domain.”124 This section attempts to address the second challenge.
We argue that there is a very simple relationship between international environmental law and the economic domain, specifically
international trade law. When trade clashes with environmental
protection, trade always trumps environment.125
Tariffs are not the only
barriers to free trade. 126
There are also non-tariff barriers (NTBs), including, but
not limited to, import quotas,
import licensing, subsidies,
and restrictions on goods’
distribution and sale.127 Like
tariffs, NTBs are regarded
as protectionist.128 Disastrously for the environment, free trade
regimes too often treat states’ attempts to protect the environment as covert protectionism.129 The idea is that a state may
enact a measure on the ostensible grounds that it is designed to
protect the environment when the actual aim is to benefit domestic producers at the expense of imports.130 On occasion, this is a
fair criticism.131
We can see trade trumping environmental protection in the
latest free trade pact, the Trans-Pacific Partnership Trade and
Globalization Agreement (TPP). The TPP has been described
as “NAFTA on steroids.”132 The TPP will include twelve Pacific
Rim countries representing 40% of global GDP.133 The text of
the agreement was finally made public on November 5, 2015.134
Up to that time, the text of the TPP was wrapped in the sort of
secrecy surrounding plans for military invasions.135 The general
public would have remained in the dark about the TPP’s contents
if Wikileaks had not leaked portions of the text.136
The TPP states as an objective to “promote high levels of
environmental protection and effective enforcement of environmental laws.”137 That’s the promise; what’s the reality? An earlier
draft of the TPP contained an article on climate change.138 But
the final text makes no reference to climate change.139 As with
NAFTA, the TPP’s environmental guarantees lack teeth.140 As if to
“Curbing China’s carbon emissions
will be impossible without reigning
in U.S. corporations.”
20
Sustainable Development Law & Policy
dispel any doubt of this, TPP contains an article titled, “Voluntary
Mechanisms to Enhance Environmental Performance.”141
Where we do find teeth is in the TPP’s investor protection provisions which the TPP’s drafters have set out in loving
detail. Under the TPP, alleged violations of investor protection
are subject to Investor-State Dispute Settlement (ISDS).142
ISDS empower foreign investors, chiefly multinational corporations (MNCs), to pursue arbitration against states for damages
resulting from violation of any of the TPP’s investor protection
provisions.143 Disputes are heard before supranational arbitral
tribunals, bypassing national courts.144 Damages, when awarded,
come out of the pockets of the host nation’s taxpayers.145
The Trans-Pacific Partnership contains four principal investor
protection provisions addressing expropriation, fair and equitable
treatment, national treatment and most favored nation status.
Expropriation146
A foreign investor may recover damages for direct or indirect expropriation of its property, including lost profits.147 The
most obvious instance of direct expropriation is nationalization.148 However, it is indirect expropriation that is more likely
to disrupt environmental regulations directed at climate change
mitigation.149 Indirect expropriation is defined broadly in the
TPP.150 Any environmental regulation that impinges on an investor’s profits or reduces the value of the investor’s property or
investments may conceivably be challenged as an indirect expropriation.151 Thus, an investor may claim that an environmental
protection regulation diminishes the value of its investment or
property. For instance, rising sea levels caused by warming may
prompt bans on building on coastlines.152 A setback regulation
of this sort could conceivably be challenged as an indirect expropriation by a foreign-owned hotel chain planning to build a hotel
near the ocean.153 A recent example of an indirect expropriation claim comes from Germany. After the devastating nuclear
meltdown in Fukushima, Japan in 2011, Germany decided to
phase out its nuclear reactors.154 Germany’s decision is being
challenged as an indirect expropriation by the Swedish energy
giant Vattenfall.155
Fair and Equitable Treatment (FET)156
States are required to accord foreign investors a minimum
standard of fair treatment.157 What does this mean? That’s hard
to say.158 Answering is complicated by the fact that some WTO
panels see FET as a rising bar which demands more of host
countries over time.159 Another difficulty FET puts in the way
for environmental protection is the finding of some tribunals
that FET requires safeguarding a foreign investor’s “legitimate
expectations” of profit.160 “In its most expansive form,” Wilensky
writes, “the principle of legitimate expectations has been interpreted to require a stable [i.e., unchanging] legal and business
framework.”161 The petitioner in Tecmed operated a hazardous
waste facility under a one-year permit from the Mexican government.162 Mexico was held liable when it refused to renew the
permit for the hazardous waste facility even though Mexico
cited public health concerns as the reason for its decision.163
Spring 2016
Other tribunals have required an express promise from the
host state made with the intention of inducing the investor’s
reliance.164 Other tribunals have only required that the investor
reasonably rely on representations made by the host country
regardless of the host country’s intent.165 In reality, all these
approaches turn what the law ought to be upside down. An investor who does not expect states to take steps to address climate
change is the one acting unreasonably.166
Nondiscrimination
The final two investor protections both guarantee that a host
state will not discriminate against foreign investors.167 Under the
National Treatment obligation a host country is not permitted to
treat its own investors more favorably than foreign investors.168
Under the Most Favored Nation obligation (MFN), a host country must treat all foreign investors alike.169
Any critic of free trade agreements must come to grips with
one apparently strong objection. If free trade agreements are so
damaging to the environment why have there been so few ISDS
challenges to U.S. environmental laws, and even fewer successful challenges?170 President Obama himself called attention to
this fact while he was promoting passage of the TPP.171 In a conference call with news reporters on April 24, 2015, the President
said that the United States was party to over 3,000 international
agreements containing ISDS provisions and that “[u]nder
these various ISDS provisions, the U.S. has been sued a total
of 17 times. Thirteen of those cases have been decided so far.
We’ve won them all. They have no ability to undo U.S. laws.”172
Obama’s last sentence is technically correct, but is misleading. If
a host state loses a challenge to one of its environmental laws, it
is likely to abandon that law rather than pay further damages (in
the case of the TPP or NAFTA) or face trade sanctions (under
the WTO).173 After the WTO Appellate Body ruling against the
United States in the Venezuela Gas Dispute, the US rewrote its
standards for imported gasoline rather than pay Venezuela an
annual $150 million in fines.174
Ontario removed the local content provisions from its Green
Energy and Green Economy Act after the provisions were successfully challenged before the WTO.175 In a third example,
the U.S. Congress is poised to abandon country-of-origin meat
labeling after the WTO held that the labeling requirement discriminates against livestock from Canada and Mexico.176
The very first dispute brought to the WTO involved environmental pollution. In the Venezuela Gas dispute,177 Venezuela
challenged an EPA regulation that required imported gasoline
to meet stricter pollution standards than gasoline from U.S.
producers.178 Venezuela alleged that this was discrimination in
violation of GATT’s national treatment obligation. The United
States, however, argued that clean air was an exhaustible natural
resource; thus, the anti-pollution EPA Gasoline Rule fell under
an exception to GATT’s national treatment obligation: GATT
Article XX(g) relating to conservation of natural resources.179
The DSB agreed with the United States that clean air was
an exhaustible natural resource within the meaning of GATT
Article XX(g),180 a holding which the Appellate Body did not
21
disturb. However, the Appellate Body said that the EPA Gasoline
Rule was not permitted under the Article XX(g) exception
because the United States could have chosen non-discriminatory
means of preserving air quality.181 The United States subsequently changed the EPA Rule in order to make it consistent
with GATT.182 The perverse result brought about by the WTO
decision was that Venezuela was allowed to sell dirtier gasoline
in the United States after the WTO decision than it had before
the decision.183
The WTO Agreement does not contain an ISDS feature.184
However, investors can still take action against states indirectly.185 An aggrieved investor can persuade his or her home
country to bring an action in the WTO.186 The result will be trade
sanctions, not an award of damages to the investor. The host
country will be motivated to lift the complained of restriction
in order to avoid sanctions.187 So, President Obama is correct
that the United States has not lost ISDS challenges. However, the
United States has lost challenges before the WTO.188 NAFTA,
GATT, and TTP provide most of the same trade protections.189
In our opinion, all three of these agreements are relevant to
assessing the vulnerability of environmental protection laws to
challenges utilizing ISDS.
The ISDS winning streak enjoyed by the United States
may come to an end. On February 23, 2016190 President Obama
vetoed the Keystone Pipeline Approval Act.191 The proposed
Keystone XL oil pipeline has been contentious because environmentalists contend the pipeline would do severe harm to the
environment.192 On January 6, 2016, TransCanada, the company
contracted to construct and operate the pipeline, filed a challenge against the United States under NAFTA.193 TransCanada
alleged that the cancellation of Keystone XL breached United
States’ obligations under NAFTA Article 1102 (National
Treatment), Article 1103 (Most-Favored-Nation Treatment),
Article 1105 (Minimum Standard of Treatment), Article 1110
(Expropriation).194 TransCanada alleges that the United States
rejected the Keystone application for political reasons, not environmental considerations.195 The United States had approved
three similar oil pipelines while TransCanada’s application was
pending.196 In addition, several federal environmental impact
reviews had all concluded that the Keystone pipeline would
not cause significant damage to the natural environment.197 If
TransCanada prevails in its suit, it will provide ammunition for
attacking other state measures to mitigate climate change.
Renewables
To establish a low-carbon economy, use of high-carbon fossils fuels must give way to renewable energy sources such as
wind and solar. The first dispute on renewable energy to come
before the WTO involved the Canadian province of Ontario.198 In
2009, the Ontario enacted a Green Energy and Green Economy
Act.199 This “climate action plan” was meant to encourage the
growth of renewables, such as wind and solar, and get Ontario,
“Canada’s most populous province completely off coal by
2014.”200 Under the Act, producers of renewable energy would
be entitled to sell to Ontario at guaranteed premium prices under
22
long–term contracts, an arrangement known as a “feed-in tariff ” (“FIT Program”).201 To qualify for the subsidies, producers
must meet local content requirements (LCRs) for materials and
services.202 The local content requirements are intended to spur
employment in the province.203 Not just business corporations,
but “local municipalities, co-ops, and Indigenous communities”
are encouraged to participate.204
The WTO Appellate Body held the local content requirements to be inconsistent with national treatment.205 “National
treatment” forbids a host nation from giving preferential treatment
to “goods produced by local companies and goods produced [in
the host nation] by foreign firms.”206 The FIT Program’s Minimum
Required Domestic Content Levels were a subsidy available only
to producers (foreign or domestic) operating in Ontario.207 The
Appellate Body held that a subsidy offered under these conditions
is discriminatory and inconsistent with the national treatment
provisions of GATT 1994 and the TRIMs Agreement.208 Ontario
removed the local content requirement so as to comply with the
WTO decision.209 Ontario also cancelled the feed-in tariff for most
projects.210 The authors draw this conclusion from the Appellate
Body’s decision: a host state cannot promote the growth of renewable energy through subsidies available only to its own citizens.
This restriction may hobble measures to promote renewables.
Without the promise of Green Jobs, initiatives like Ontario’s may
not be politically feasible,211 and local content rules are necessary
if Green Jobs are to be created.212
Local content rules—or, rather, their analog: domestic content rules were the subject of a recently decided challenge by the
United States against India.213 In August 2015, a WTO dispute
settlement panel ruled that the domestic content requirements
(DCR) attached to India’s Jawaharlal Nehru National Solar
Mission violated national treatment.214 India required that solar
cells and solar modules (and, later, thin film technologies) be manufactured in India.215 The same sort of LCR had been successfully
challenged in Ontario by Japan and the European Union.216
Illegitimate Expectations
Legitimate expectations claims derive from the FET obligation. Environmental lawyer Meredith Wilensky writes:
In the context of climate change, [legitimate expectations] claims are particularly concerning because
where climate regulators increase costs or frustrate
investments, foreign investors may argue that the
regulations violate their legitimate expectations
of profit. For example, such suits may arise where
emissions standards result in early retirement of
coal-fired power plants because they are unable to
achieve newly imposed GHG emissions standards.
If such a claim is successful, a host state would be
required to compensate the investor for the expected
profits had the plant continued to operate.217
As an example of how the sort of lost profits claims Wilensky
has in mind may frustrate regulations meant to address climate
change, consider the following troubling scenario. The Obama
Administration’s Clean Power Plan, discussed above,218 will
Sustainable Development Law & Policy
require carbon emissions cuts at existing coal-burning electricity
generating plants throughout the United States.219 In Kentucky
alone there are 57 such units located in 21 plants.220 Two firms
own sixteen of these units: Kentucky Utilities Company and
Louisville Gas & Electric.221 These two companies are owned
by German energy giant E.ON AG.222 Germany is one of the
countries currently negotiating TPP’s clone, the Transatlantic
Trade and Investment Partnership (TTIP) which will apply to the
US and Europe in the same way as the TPP applies to the Pacific
Rim countries.223 Assume that the TTIP contains the same investor protections as the TPP, including the FET obligation (a fair
assumption). Assume further that the Clean Power Plan not only
cuts emissions from coal-burning power plants, but, in doing so,
cuts into coal plants’ profits. Under those circumstances, will E
ON AG be able to challenge the Clean Power Plan on the grounds
that it deprives E ON AG of its legitimate expectations of profit
in running its US plants and thus is inconsistent with the TTIP’s
FET obligation? The answer may hinge on how Vattenfall’s
arbitration against Germany resolves. If Germany does not have
the right to shutter nuclear plants in Germany, even given the
very strong health and safety concerns involved, why should the
Clean Power Plan be allowed to cut into the profits (or force the
closing) of coal plants in the United States?
Defending ISDS
Scholarly attempts are sometimes made to argue that international trade regimes do not threaten environmental protection.224 Dr. Alhaji B. M. Marong points out that the U.S. Congress
enacted NAFTA only after “side agreements” on labor and the
environment were concluded.225 He does not mention that these
side agreements have no teeth—no enforcement mechanisms.226
The TPP does contain a carve-out for environmental and health
regulations in Article 9.15.227 However, Article 9.15 requires
that health and environmental regulations be “consistent with”
the TPP’s Investment Chapter which contains the investor protections we have been discussing.228 The investor protections of
TPP’s Investment Chapter trump regulations meant to protect the
environment and human health.229
Marong also cites favorable mentions of sustainable
development made in ministerial meetings of the WTO.230 He
emphasizes that the WTO has established two bodies to consider
environmental and development concerns.231 Yet, writing in
2003, Marong is forced to acknowledge the “less than satisfactory progress in international trade regimes, vis-à-vis environmental protections and sustainable development” although this
admission does not prevent him from concluding that the points
he has raised “do show that there is some movement towards the
integration of economic and non-economic concerns.”232
Remedies
Meredith Wilensky contends that simple revisions to the
TPP can make the agreement effective in protecting the environment.233 We agree. She suggests that an environmental exception
clause be added for good faith environmental regulations.234 She
also suggests the addition of a provision to allow compliance
with environmental treaties.235 The present authors suggest the
Spring 2016
following reform: delegations negotiating free trade agreements
should include representatives from environmental NGOs and
labor unions. NGOs and other non-state actors are routinely
present at UN environmental conferences.236 Their presence
makes it much more likely that their views will be part of the
resulting declarations, development goals, and treaties.237 At
present, the only “NGOs” who have the ear of trade negotiators
are multinational corporations. How much different or better
would the TPP be if members of the AFL-CIO and the Sierra
Club had been at the negotiating table?
Reforms such as these may prevent trade from trumping
environmental protection.
V. Other Obstacles to the Formation of a
Norm of Sustainable Development
A. Structural Obstacles
Structural impediments—technological and scientific—
to sustainable development plague the developing world.238
Inducing developing nations to pursue sustainable development
is challenging because developing countries are “beset by basic
economic, social, and political problems that appear to many of
their residents and government leaders more urgent than environmental concerns.”239 These include armed conflict,240 exploding
populations, and dwindling natural resources. Such enormous
challenges make the goals of conservation and pollution reduction less critical than the immediate241 problem of survival.242
Today’s urgent needs overwhelm planning for the future,243 even
though when developing countries do want to implement sustainable development most of these countries simply lack the needed
regulatory infrastructure.244 Developing nations typically have
few resources, including money, to mitigate the effects of environmental degradation, such as ozone depletion, water pollution,
or climate change.245 Developed countries, on the other hand,
are able to cushion the negative effects of temperature increases
such as rising sea levels.246
Additionally, the goals of sustainable development are not
well served by the poor example set by the developed world.247
Researcher Maggie Black observes:
[T]he North’s dilatory efforts to regulate energy
consumption, particularly US reluctance to take
climate change seriously, does little to encourage
Southern governments to control carbon emissions
or conserve natural resources.248
B. Normative Uncertainty
Some commentators ascribe the difficulty in implementing sustainable development to normative uncertainty.249 In
this view, sustainable development is simply too amorphous
for states to implement. Sustainable development lacks clear
parameters and criteria which can be used to measure whether
any particular activity is sustainable.250 This uncertainty is
apparent in the conflicting meanings which states attach to fundamental terms in the sustainable development discourse such
as intergenerational equity, sustainable use, intragenerational
23
equity251 and integration of environmental, economic, social,
and other considerations.252 If only all actors would agree to use
these terms in the same way, then everyone would be moving in
the same direction and in time we would all arrive together at
the Promised Land of sustainability. Maggie Black captures the
deficiency of this argument:
The proliferating international circus—the conferences, summits, commissions, and their magisterial inquiries into the state of the world’s this or
that—too often imply that, if only the world can
reach consensus around key policy principles, the
obstacles to development will crumble. * * * They
have a tendency to describe what needs to be done
about forests, nutrition, child prostitution, dams,
mining, or public health as if its articulation could
bring about a fait accompli.253
Black is rightly dismissive of is the notion that the world
needs to formulate a new, better definition of sustainable development or come up with
the right set of sustainable
development goals or targets.
States have spent the past
forty-five years fleshing out
the content of sustainable
development in treaties,
declarations, resolutions, and
reports.254 . Part of this work
of normative clarification
has consisted in parsing the
broad concept of sustainable development into its
constituent elements, e.g.,
inter- and intragenerational
equity, common but differentiated responsibilities, the precautionary principle, etc.255 The content of sustainable development
becomes less uncertain with each passing year.256
So states do know what the terms of the sustainable development discourse mean. More importantly, we contend that states
know what the states which disagree with them mean by these
terms. There are not 190 different meanings given to “sustainable use,” “intragenerational equity,” etc., one for each country
in the world. Instead, the North has one understanding of what
needs to be done and that conflicts with what the South believes
has to be done. What prevents sustainable development isn’t
failure to communicate. The North understands perfectly well
what the South wants from it. The South asks the North to emit
less greenhouse gases, consume less non–renewable resources,
particularly fossil fuels, and transfer funds and technology to the
South so that the South can develop. The North simply refuses
to—thus, the position taken in this article that a struggle between
North and South explains the fitful progress towards global
sustainability.
C. A Fundamental Clash between North and South
on Intragenerational Equity
In particular, North and South attach sharply opposed
meanings to the concept of intragenerational equity. The North
understands what the South means by intragenerational equity,
and the South understands what the North means. Yet North and
South have been unable to resolve their disagreement.
The North insists that the South must conserve resources,
emit less carbon, and limit its population growth. The South’s
rejoinder is that such measures are unnecessary because as per
capita income increases, environmental quality improves after
a period of increasing environmental degradation.257 Focus on
economic development and the environment will look after
itself.258 The South’s argument is encouraging, optimistic, and
wrong. The reality is that as environmental amenities in the
form of environmental legislation and institutions to support and
enforce them become affordable, the inverted-U shape relationship described by the environmental Kuznets curve holds good
only with respect to some,
not all, environmental problems.259 It does not “appl[y]
to environmental quality
generally.”260 There will be
improvement with respect to
“a selected set of pollutants
only,” ones with “local shortterm costs,” such as “sulfur,
particulates, and local coliforms.”261 The curve is not
valid for “the accumulation
of stocks of waste or for pollutants involving long-term
and more dispersed costs
(such as CO2).”262 Nor does
this purported mathematical relationship give us any reason to
believe that indefinite economic growth is possible.263 Instead,
overdrawing from the earth’s limited resource stocks can irreversibly damage its productive capacities, risking the economic
activity itself.264 Yet, clearly, the poverty of most developing
countries does not justify blanket no-growth policies either.265
These countries desperately need economic development.
While the rosy argument of the developing countries is
empirically flawed, the position of the developed countries is
flawed ethically. Here we confront the problem of intragenerational equity. Rather than curb its own environmental excesses,
the developed world prefers policies, which place the burden
of environmental protection on the already overburdened
developing nations.266 The developed countries seek to impose
restrictions on the poor countries’ use of their natural resources;
expansion of their industrial base, and growth of their populations.267 These policies keep the world’s poor countries poor.268
The South sees these policies as rooted in the same pursuit of
dominance that has historically given rise to Western colonialism, economic exploitation, and economically–motivated
military interventions.269 It is small wonder that the South sees
“The South asks the North to emit
less greenhouse gases, consume
less non–renewable resources,
particularly fossil fuels, and transfer
funds and technology to the South so
that the South can develop.”
24
Sustainable Development Law & Policy
environmentalism as just the latest in a long string of Northern
tactics to keep the South down.
Intragenerational equity is also implicated in Northern
demands with respect to population growth in the South. The
North demands that the South reduce its population without the
North offering reciprocal commitments to reduced consumption,
equitable distribution of wealth and resources, and provision
of developmental assistance to the countries of the South.270
Developing countries resent
the fact that the developed
countries do not attach the
same importance that the
developing countries do to
issues related to poverty,
such as polluted water, air
pollution in urban areas, and
erosion of topsoil.271
Inequity is also apparent
in the ways the North saps
the South’s resources. One
way is through expanding the
definition of the global commons. The global commons used to
be limited to earth’s atmosphere, oceans, Antarctica, and Outer
Space.272 More recently, the North has redefined the global commons to also include tropical rain forests and biodiversity.273 The
developing countries rightly regard the expansion of the global
commons as a means to encroach on the South’s sovereign
right to the use of its own natural resources.274 The North continues to formulate ingenious new ways of stealing the South’s
resources.275
In international negotiations, the George W. Bush
Administration dug in its heels over the need for the United States
to reduce its carbon emissions, arguing that China and India
must do so to the same degree.276 Not surprisingly, the North
and South have diametrically opposed views on what fairness
requires.277 The Bush Administration argued that it was only fair
that all countries observe the same standards.278 Readers will be
forgiven for thinking that this was merely a stratagem for the
Bush Administration to avoid cutting U.S. emissions. .
Sincere or not, Bush’s understanding of fairness was flawed.
Economically, the developing countries have long lagged behind
the West. For many years, the United States has consumed a
disproportionate share of the world’s oil, other natural resources,
and the atmosphere’s carbon sink.279 Since the industrialized
countries have consumed the lion’s share of the world’s resources
for so long it would not be fair to expect North and South to
cut back equally. The point is illustrated by a hypothetical
proposed by Massachusetts Institute of Technology economist
Lester Thurow.280 Thurow posits a footrace where half of the
runners are burdened with heavy weights.281 Even if the runners
are relieved of their weights
midway through the race that
does not transform the race
into a fair one.282 The race
only becomes fair when the
previously burdened runners
are allowed to catch up with
those in the lead.283 It is the
same with the developed and
developing countries. Peter
Singer concludes that fairness
demands that the developed
countries should shoulder the
burden of the heaviest cut-backs in carbon emissions.284 In fact,
the developed countries had agreed to do just that in the 1992
United Nations Framework Convention on Climate Change.
“The human race cannot continue
to spew carbon emissions into
the atmosphere, deplete natural
resources, and allow global
population growth to go unchecked.”
VI. Conclusion
Despite general acceptance of the principles of sustainable
development, the countries of the global North have remained
unmotivated to forgo excessive economic self-interest. A vast,
perhaps unbridgeable, divide separates the priorities of the North
and the South. As intensely debated during negotiations at Rio in
1992, the South wants the North to curb its consumption, curb
its emissions, place intragenerational equity above intergenerational equity, and ensure food security and access to fresh water.
In contrast, the North expects the South to limit its population
and forgo development in the name of sustainability.
We all know what needs to be done. The human race cannot
continue to spew carbon emissions into the atmosphere, deplete
natural resources, and allow global population growth to go
unchecked. The problem is getting the international community,
particularly the United States, to make concessions and sacrifices. But no one has figured out how to compel states to do so.
Endnotes: A North-South Struggle: Political and Economic Obstacles to
Sustainable Development
1 See
Lynge Nielsen, Classifications of Countries Based on Their Level of
Development: How it is Done and How it Could be Done 3-4 (Int’l Monetary
Fund, Working Paper No. WP/11/31), available at https://www.imf.org/
external/pubs/ft/wp/2011/wp1131.pdf (highlighting that the UN Development
Programme, International Monetary Fund, World Bank, and the Human Development Reports employ different schema based on income for differentiating
developed from developing countries); see Maggie Black, The No Nonsense
Guide to International Development 23 (2d ed. 2007) (indicating that developing countries are members of the Group of 77). There is a world of difference
Spring 2016
between, say, impoverished and war-torn South Sudan and the so-called BRICS
countries (Brazil, Russia, India, China, and South Africa). Countries like South
Sudan and Somalia fall under the sub-category “Least Developed Countries”
(LDCs) set out by the UN General Assembly in 1971. See Nielsen, supra, at 7;
see Least Developed Countries: UN Classification, World Bank, http://data.
worldbank.org/region/LDC (last visited Apr. 14, 2016) (listing Least Developed
Countries).
continued on page 40
25
The Key to Engaging with the SDGs: Utilizing
Rio Principle 10 to Successfully Implement
the U.N. Sustainable Development Goals
By Taís Ludwig*
F
Introduction
or many who are not familiar with this field, right to information laws (RTI) and access to justice do not appear to
have anything to do with environmental law. However,
these are actually the most critical tools for environmental protection and sustainable development. The Rio Declaration on
Environment and Development1 established the guiding principles of international environmental law, with Principle 10 being
considered one of the most important of these principles. Rio
Principle 10 is perhaps the most well-known and internationally
recognized expression of the right to information concept.2 Since
the adoption of the Rio Declaration in 1992, regional agreements
have been created to implement the principle,3 and one-hundred
countries now have national right to information laws in place.4
The United Nations Sustainable Development Goals (SDGs)5
themselves even focus on access to information as the key to
success for creating a more sustainable global society.
For the reasons discussed below, this Article argues that
the only way to ensure a full and successful implementation
of the SDGs is to invoke reliable governance practices. This
means that all States must fully embrace the concept of access
to information and public participation in governance laid out in
Rio Principle 10. Access to information and civic engagement is
crucial to successful governance and policy implementation—
especially in the environmental and development context.
Principle 10 of the Rio Declaration on
Environment and Development
Since 1992, it has been widely acknowledged that the challenges of sustainable development “can only be met with the
engagement of an informed and empowered public.”6 Principle
10 is the embodiment of the effort to create a more informed
and empowered public. It establishes the “fundamental elements
for good environmental governance” through the three ‘access
rights’: 1) access to information, 2) public participation, and 3)
access to justice.7 These access rights allow for more transparency
in government decisions, as well as more inclusive and accountable decision making processes.8 While these concepts have
been widely recognized around the world, many governments—
particularly in developing countries—have yet to implement
the laws and proper legal framework necessary to incorporate
Principle 10.
Although many nations have adopted some RTI laws since
the adoption of the Rio Declaration, many still have not fully
26
implemented Principle 10, making it crucial for the United
Nations to focus on access rights. Accurate information and the
disclosure thereof, is fundamental to the success of sustainable
development. It permits for and enables a way for the public to
ensure government accountability and effectiveness in development efforts. The access rights are crucial to good governance,
which is why the United Nations included them as Target 16.10
of SDG 16.9
Access to Information in the Context
of the SDGs
In September of 2015, the United Nations (UN) adopted the
SDGs—a set of seventeen aspirational goals with 169 targets.10
These goals form a key part of the UN’s new sustainable development agenda,11 with each goal establishing specific targets
that are to be achieved over the next fifteen years to create a
more sustainable society.12
Two of these seventeen goals, Goals 12 and 16, touch on
governance and the access rights, but they make little headway
in addressing what should be the key element to success in the
implementation of the other SDGs.13 Specifically, Targets 12.8
and 16.10 focus on access to information,14 but these vague
Targets are not as specific as Rio Principle 10. Principle 10,
while also quite general, uses substantive language that establishes who should provide information, what information to
disclose, and who should have access to this information. 15 The
only tangible aspect of target 12.8 is the target date of 2030; the
rest of the Target is just as aspirational as the Goal itself.16 Target
16.10 is slightly more specific than Target 12.8, but still does
not clearly refer to the kind of information that should be made
available to the public. Also, the phrase “in accordance with
national legislation” can actually limit the application of this
Target, especially in countries that lack access to information
and public participation laws.17
Public Participation in Governance
Access to information is key for allowing individuals and
communities to better understand and participate in governance
decisions.18 Without access to information, public engagement
and participation is extremely limited. Engagement is crucial
because it provides civil society, and particularly disadvantaged
* Tais Ludwig is a J.D. candidate 2016 at American University Washington College of Law.
Sustainable Development Law & Policy
and marginalized groups, a voice in decision-making processes.19 Information affords these people the ability to understand the impacts of proposed laws and policies, and it helps
facilitate participation in decision-making processes. Principle
10 states that each individual shall have “the opportunity to
participate in decision-making processes” and that “States shall
facilitate and encourage public awareness and participation by
making information widely available.”20 Participation includes
the important concepts of stakeholder consultation and Free,
Prior, and Informed Consent (FPIC).21
Access to Justice
A proper access framework would not be complete without a mechanism for people and communities to access legal
redress and remedy. Access to justice encompasses more than
just access to courts; it involves normative legal protection, legal
awareness, legal aid and counsel, adjudication, enforcement, and
civil society and parliamentary oversight.22 Without access to
justice,23 people are unable to have their voices heard, exercise
their rights, challenge discrimination, or hold decision makers
accountable.24 Although each country’s situation is unique, making the assurance of proper access to justice complicated and
difficult, this final element of Rio Principle 10 is essential to successfully adopting and utilizing an access framework.
Implementation of the SDGs
Nations within the UN are currently working to develop a
series of indicators that will be used to monitor the implementation of the SDGs.25 To accomplish this, the UN Statistical
Commission created an Inter-agency and Expert Group on SDG
Indicators (IAEG-SDGs).26 Although still in the initial stages of
creating the monitoring framework, the IAEG-SDGs has crafted
proposed indicators with the understanding that at the very least,
indicators for gauging of national, regional, global, and thematic
components are necessary.27 The proposed framework establishes a list of the indicators that should be used, and provides a
public online reporting forum for easy access to the information
and transparency in SDG implementation. This creates a virtual
report card for each State’s implementation of the SDGs.28
For the proposed indicators and monitoring framework to successfully monitor the implementation of the SDGs, individual
nations must ensure a robust domestic access rights framework
based on Rio Principle 10 exists.
Endnotes: The Key to Engaging with the SDGs: Utilizing Rio Principle 10 to
Successfully Implement the U.N. Sustainable Development Goals
1 Also
known as the Rio Declaration. United Nations Conference on Env. &
Dev., Rio Declaration on Environment and Development, U.N. Doc. A/CONF.
151/26/Rev.1 (Vol. 1), annex I (Aug. 12, 1992) [hereinafter Rio Declaration].
2 Id. at 2-3 (discussing Principle 10).
3 See UNECE, Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental Matters, done at
Aarhus, Denmark (June 25, 1998); ECLAC Principle 10, http://www.cepal.org/
en/topics/principle-10 (last visited Mar 9, 2016); CIEL Campaign Update Latin
America and Caribbean Principle 10 (LAC P10), http://www.ciel.org/projectupdate/latin-america-caribbean-principle-10-lac-p10/ (last visited Mar 9, 2016).
4 Paraguay was the 100th nation to pass a RTI law. Toy McIntosh, Paraguay
is 100th Nation to Pass FOI Law, But Struggle for Openness Goes On, The
Guardian, (Sept. 19, 2014), http://www.theguardian.com/public-leaders-network/2014/sep/19/paraguay-freedom-information-law-transparency. Article 19,
National Laws and Regulations on the Right to Information https://www.
article19.org/maps/ (last visited Mar 2, 2016) [hereinafter Article 19 map].
5 The Sustainable Development Goals were created to build upon the Millennium Development Goals, and are designed to balance the three dimensions of
sustainable development: economic, social, and environmental. United Nations
Sustainable Dev. Knowledge Platforms, Transforming Our World: the 2030
Agenda for Sustainable Development, https://sustainabledevelopment.un.org/
post2015/transformingourworld (last visited Mar 2, 2016).
6 Elena Petkova, et al., Closing the Gap: Information, Participation, and
Justice in Decision-Making for the Environment, World Resources Institute,
i., ix (2002).
7 David Banisar, et al., Moving from Principles to Rights: Rio 2012 and
Access to Information, Public Participation, and Justice, Sust. Dev. L. & Pol’y,
Vol. XII, No. 1, 8. (Fall 2011).
8 Id.
9 Indicators and a Monitoring Framework, Target 16.10, SDSN, http://
indicators.report/targets/16-10/ (last visited Mar 2, 2016).
10 United Nations Knowledge Platform, Sustainable Development Goals,
https://sustainabledevelopment.un.org/?menu=1300/ (last visited Mar 2, 2016)
[hereinafter United Nations Knowledge Platform].
Spring 2016
11 UNGA
Res. 70/1 Transforming Our World: the 2030 Agenda for Sustainable Development, U.N. Doc. A/Res/70/1 (Sept. 25, 2015) [hereinafter 2030
Agenda].
12 See United Nations Knowledge Platform, supra note 10.
13 United Nations, Sustainable Development Goals, Goal 12: Ensure
Sustainable Consumption and Production Patterns. http://www.un.org/
sustainabledevelopment/sustainable-consumption-production/ (last visited Mar.
2, 2016); United Nations, Sustainable Development Goals, Goal 16: Promote
Just, Peaceful and Inclusive Societies. http://www.un.org/sustainabledevelopment/peace-justice/ (last visited Mar 2, 2016).
14 Target 12.8 states “By 2030, ensure that people everywhere have the relevant information and awareness for sustainable development and lifestyles in
harmony with nature.” Sustainable Development Solutions Network, Indicators and a Monitoring Framework for the Sustainable Development Goals:
Launching a Data Revolution for the SDGs—A report to the SecretaryGeneral of the United Nations 58 (June 12, 2015) [hereinafter SDSN Indicators and Monitoring Framework report]; Target 16.10 states “Ensure public
access to information and protect fundamental freedoms, in accordance with
national legislation and international agreements.” Id. at 64.
15 The Rio Declaration on Environment and Development, Principle 10 states
“Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decisionmaking
processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be provided.”
Rio Declaration, supra note 1.
16 2030 Agenda, supra note 11 at 23.
continued on page 48
27
Developing an International Carbon
Tax Regime
Steven Specht
A
Abstract
s atmospheric CO2 remains in the range of 400 ppm, it is
necessary to find new international coordination to deal
with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing
to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative
means of energy production. Finally, such a plan will overcome
the problem of non-participation of countries in agreements like
the Kyoto Protocol. As this is a treaty dealing with economics and
trade, countries can place taxes on imports of non-participatory
countries under exceptions of GATT Article XX.
1. Introduction: Implications of Global
Climate Change
At the time of its creation, the Kyoto Protocol1 was considered by many to be the strongest international agreement on
the subject of climate change.2 In 1997, 182 nations committed
to minimizing greenhouse gases (GHGs) during the period of
2005-2008, with the goal of reducing GHGs to below 1990s levels.3 Early critics of the Kyoto Protocol pointed out future flaws:
simply put, the underlying approach was bound to fail because
it was premised on setting national emissions targets rather than
dealing with the actual problem of global warming caused by
emissions.4 Despite noble ambitions, emissions have grown significantly.5 By most accounts the Kyoto Protocol has “unequivocally failed.”6 The fault lies in several areas. First, it was a regime
which created “common but differentiated responsibilities”7 putting little to no responsibility on developing nations to consider
emission reductions.8 While some combination of domestic
efforts and a global recession has created a decline in emissions
in the developed world, unchecked growth of emissions in the
developing world is beginning to overcome that of the developed
world, calling into question the apparent malarkey on common
but differentiated responsibilities. For example, while the United
States (US) remains a much larger per capita producer of Carbon
Dioxide (CO2) than other major world economies, China and
India are both increasing their respective CO2 output at a whopping seven percent annually, while the US is either steady or
declining.9 The per capita CO2 output for both China and India
is also rapidly increasing at similar rates (seven percent and six
percent for China and India respectively).10 Assuming steady
population growth rates,11 China and India will both surpass the
US per capita production of CO2 within two decades.12 Second,
in addition to lack of buy-in by major nations such as the US in
the initial stages of the Kyoto Protocol, some nations have lost
28
faith. (Consider Canada which declared that the Protocol “does
not represent a way forward,”13 despite its own plummeting
emissions, and Russia which has declined to take on additional
obligations despite its own drops in emissions).14 Finally, the
Kyoto Protocol failed to deal with many emissions such as those
of airlines and shipping companies.15 Transport alone accounts
for at least fourteen percent of global GHG emissions.16
This Article serves to show a way forward from a failed
Kyoto Protocol to create an international taxation scheme that
harmonizes taxes levied upon producers of CO2 by their respective nation states.
While this Article acknowledges that global warming is part
of a natural cycle, it is an undeniable fact that the total amount
of atmospheric CO2 is at all-time highs for recorded history.17
A consideration of ice core samples from Antarctica gives revelation of GHGs going back some 800,000 years and reveals
periods of global cooling when the parts per million (PPM) was
as low as 175 and periods of global warming with nearly 300
ppm.18 Since modern atmospheric measurements began in 1958,
the number has steadily increased from 315 PPM to a close to
400 PPM.19 Such a level is unprecedented, at least within the
timeframe of human history going back at least 800 millennia.20
While there is no empirical evidence indicating what awaits
us with such a high level of CO2 in the atmosphere, the warmest
weather in recorded history has already occurred in the last generation.21 With CO2 levels to exceeding 400 PPM, one should
consider treading carefully in unfamiliar territory. Certainly as
part of a natural cycle the planet may heal itself, but “if humanity
wishes to preserve a planet similar to that on which civilization
developed and to which life on earth is adapted, paleoclimate
evidence and ongoing climate change suggest that CO2 will need
to be reduced to at least 350 PPM”22 lest we go to the “point of
no return.”23
Though the ramifications of dealing with CO2 are expensive and inconvenient, the costs, both monetary and sociological, are far greater in the near future than in the present.
Simply put, “delaying action is a false economy.”24 Cost of
* Steven Specht is a recent graduate of Florida State University College of Law.
His primary legal focus is on constitutional law and international law, and he
earned a certificate in the latter. He graduated from the University of Florida
in 2005 before entering the United States Air Force to be a linguist focusing
on Pashto and Dari, two dominant languages in Afghanistan. After exiting the
Air Force, Steven earned his M.A. in International Relations from American
Military University in 2011. Steven is currently co-writing work related to the
Florida Constitution with Professor Emeritus Sandy D’Alemberte. He is also
a candidate for the United States House of Representatives from Florida’s First
Congressional District.
Sustainable Development Law & Policy
environmental degradation already has a negative effect on the
economy; for example, economic losses due to environmental
degradation and pollution cost roughly 10 percent of China’s
gross national income.25
It is with some irony that a need for international coordination on environmental issues comes as a necessary byproduct of
international coordination in trade liberalization. The road to trade
liberalization has been disrupted throughout modern history by
war and regional animosity, in a continual push towards opening
of borders and removing of protectionist policies.26 In recent years
the developed world is rallying around a second issue of GHGs.27
Given the relationship to expanding global trade and increased
greenhouse gases, one might argue that the latter is the logical
outgrowth of the former; if not for the advancement of trade
through economic coordination, greenhouse gases might largely
be a moot point. If we chart global GDP growth alongside the
growth of greenhouse gas productions, there would be a surprising similarity.28 The question arises: can one harness the power of
economic coordination and integration to effect processes necessary to diminish the production of GHGs while repairing current
and future damage caused by climate change? When viewing
the problems tackled by our predecessors, one can be optimistic.
Certainly global measures
to reduce the depletion of
the ozone layer caused by
chlorofluorocarbons (CFCs)
have been successful, but
CFCs were only a small portion of the overall economy.29
Dealing with GHGs would
have an effect on nearly every
aspect in the daily life of the
average industrialized citizen.
Sometimes it is necessary to state the obvious: environmental degradation knows no political boundaries. Smog regularly
drifts westward from China to choke neighboring countries
of South Korea and Japan.30 The same can be said for that of
India’s neighbor, Bangladesh.31 Meanwhile, some 37,000 tons
of plastic particles have accumulated in ocean eddies throughout
the world.32 Increasing desertification throughout the world has
been a destabilizing effect on numerous countries with conflicts
regularly spilling over borders to threaten the lives of the indigenous population as well as the resource chain for the developed
world.33 The world is awash with well-intended, but often futile,
efforts to deal with environmental degradation (each year, more
than 30 additional Multilateral Environmental Agreements are
signed with the intent to solve global environmental problems).34
Most are dominated by language of second and third generation
rights, and one wonders if these merely amount to a “collection
of pious phrases.”35 While second and third generation rights are
noble concepts, in a legal sense, the Lorax36 has no standing.37
This is not to discount all international regimes dealing with
the environment. However, the most successful seem to deal
first with economic concerns and only later, with environmental concerns. Consider for example, the International Maritime
Organization which began merely as a United Nations body to
establish international norms for shipping and only later became
the designated shepherd of the maritime environment.38 This
pragmatic body along with its derivative, the International Oil
Pollution Compensation (IOPC).39 Funds have led to the creation of a fund for victims of oil pollution caused by oil tanker
accidents.40 Ultimately the polluter pay scheme does not slow
the flow of oil but is the impetus for greater caution lest the companies pay up for their mess.41
Moving forward on the host of environmental problems
means taking this more pragmatic approach: damage will occur,
but we have the ability to counteract this damage, correct the
damage, and encourage industries to adapt to a more sustainable
method of operation. While the Arch Druids42 would have us
conserve what is left and shut down industry entirely, this monolithic approach is realistic neither in a domestic effort, nor in an
international effort. Actions by any individual country result in a
zero-sum game;43 for example, a sudden shift in fuel efficiency
in the United States would create a glut on the world market
causing lower fuel costs.44 There is little doubt that impoverished
countries would “snap up the suddenly plentiful, suddenly cheap
crude oil and use it to develop their own economies.”45
This Article will briefly
discuss the economic realities of why the carbon tax is
the best solution to deal with
climate change. It will then
provide examples of successful national and regional carbon taxes. Third, it will posit
an international carbon tax
regime and the application of
the regime.
“Such a level is unprecedented,
at least within the timeframe of
human history going back at least
800 millennia.”
Spring 2016
2. Why Carbon Tax?
It is generally understood by all economists that in order to
reduce the potential of further impacts of climate change on the
world, it will be necessary to tax all parts of the production and
use of fossil fuels.46 A carbon tax can be an example of applying
the “double dividend hypothesis” which means that the taxation
scheme encourages both more efficient uses of existing resources
as well as reducing the negative result of such uses.47 A tax is a
cost-efficient method of lowering fossil fuel consumption by
making them more expensive and encouraging use of alternative technologies,48 and giving more flexibility to internalize the
costs of emissions.49 Carbon taxes could affect any industry with
the capacity to pollute.50 However, the burden will likely fall
upon the energy and transportation sectors.51 Additionally, once
a tax is levied on energy and transportation sectors, there may
be room to apply it to other industries as needed. For example,
a tax on plastic producers could create an incentive to produce
more durable plastics or induce them to lobby local governments
to increase the recyclability of their products. Even in the cases
where alternative methods of Command-and-Control Regulation,
Cap-and-Trade, and Government Subsidies have worked, they can
29
still work concurrently with a Carbon Tax model. The advantages
and disadvantages of each are discussed below.
A. Command-and-Control Regulation
Though Command-and-Control was once the preferred singular method of dealing with emissions, it is best when the substance
intended on being regulated is so toxic and destructive that there is
little economic advantage to balance the negative ramifications of
its use.52 An example of this is the phasing out of CFCs when the
use of them was demonstrated as a causative relationship to the
thinning of the ozone layer.53 With CFCs, there was a host of alternative chemicals to replace the CFCs, which did not damage the
ozone including hydrochlorofluorocarbons, hydrofluorocarbons,
and hydrocarbons.54 However, the use of command and control
regulations means large government agencies and complicated
litigation when things went awry.55 Such a draconian approach
requires that the chemicals be of the most dangerous type in order
to apply a regulation that can effectively destroy a market rather
than tailoring it to reach greater efficiency.
There are other success stories for schemes that reward
“good” behavior and punish “bad” behavior. Consider the example of Germany taxing leaded gas at a much higher rate than
unleaded gas.56 In a manner
of a decade, such incentives
virtually eliminated leaded
gas in Germany.57 Similar
to the successes with leaded
gasoline are the CAFE 58
standards in the US, which
have significantly increased
auto efficiency since their
first use during the oil crisis
of the 1970s.59 Despite the
initial burdens placed upon
the industry, the auto industries have survived in both countries.
However, it is important to remember that more efficient autos
do not necessarily mean more efficient drivers. An auto with 50
percent better fuel economy can save gas, but a driver who drives
50 percent more with the savings uses the same amount of gas.60
insist they are not raising taxes , when avoiding the use of the
word tax means that legislation may more likely to survive the
political process.65 An important issue to consider is that Capand-Trade can slow the growth of emissions but may not actually
cut emissions.66
In addition to the failure to actually cut emissions is the
impossibility of government to always stay ahead of economic
trends which can create very inefficient allocation of allotments
without a clear knowledge of a proper balance.67 An example
of this is the European Union’s Environmental Trading System
(EU-ETS).68 This was the most robust carbon-trading system in
the world, but often viewed as a failure in retrospect. The worst
aspect is that the inability to adapt allotments during the economic recession meant a glut of allotments for trade, and as with
all supply-demand balances, the price of carbon crashed. 69 The
fact that the European Parliament declined to bolster it in 2013
is perhaps the best indicator of its failings.70 Other experiments
in Cap-and-Trade have also had similar difficult learning curves
including in the US where carbon markets often “experience
volatile, often unforeseen, price shifts.”71 From 2005 to 2011,
EU-ETS cost Europe some $287 billion and had “almost zero
impact” on the overall emissions.72 The proverb of putting good
money after bad comes to
mind when considering calls
that we have not given carbon
trading enough time.
“A Cap-and-Trade program
creates a government-informed
maximum amount of carbon
emissions from a given party.”
B. Cap-and Trade
A Cap-and-Trade program creates a government-informed
maximum amount of carbon emissions from a given party.61
Allowances in the form of metric tons are allotted and companies which fall below their respective caps are able to sell their
leftover allowances to other companies.62 On the other hand,
Cap-and-Trade takes much of the power from government and
into the hands of private enterprise, encouraging them to become
more efficient in order to sell their allotments for a profit.63
However, Cap-and-Trade is complicated, and depending on the
regime, does little to actually reduce net carbon; it merely insures
more efficiency of production.64 That efficiency is responsible
for some economic growth due to better allocation of resources,
but not to the extent of that wrought from a Carbon Tax. The
advantage of the Cap-and-Trade system seems to be the political
viability for politicians who can honestly (albeit misleadingly)
30
C. Government
Subsidies
Government subsidies
continually pose the problem
of government participation
in the market. Governments
often lack the flexibility to
recognize what consumers will use or emerging technologies that
supersede that which the government wishes to sponsor through
subsidies. Even the most developed nations may be guilty of the
proverbial “surplus of left shoes.”73 An example of this in recent
history is Solyndra which defaulted on a $535 million loan for the
development of solar technology guaranteed by the Department of
Energy amid accusations of fraud by many political opponents of
the Obama Administration.74 It is dishonest to say that all products
of the American Recovery and Reinvestment Act75 under which
Solyndra was subsidized were a failure—far from it.76 In fact the
majority of investments in green technology by the US government in the American Recovery and Investment Act seem to have
been a success.77 However, the rapid increase of investment in
renewable energy around the same time seems to indicate that the
free market had beaten Congress and the Obama Administration to
the punch. For example a 2008 study78 showed that wind capacity
increased by 51 percent and solar photovoltaic capacity increased
by 44 percent from 2007.79 Moreover private sector investments
had exceeded $23 billion in 2008.80 Arguably, the $32 billion allocated to clean energy projects in 2009 was quite late to the party.81
Sustainable Development Law & Policy
In addition to the private sector outpacing the government,
there is a real concern of creating an “iron triangle.”82 The
example which bests demonstrates the Iron Triangle from the
perspective of the US is the military industrial-complex which
is regularly accused of producing large quantities of outdated
technology83 or producing technology so far beyond the capabilities of our opponents that it defies reason.84 It is a reasonable
extrapolation that alternative energy industries would create just
as much of a boondoggle as past cooperation between government and an industry. That a recent Oklahoma bill penalizes
homeowners for installing solar panels while simultaneously
subsidizing traditional power plants is indicative of how slowly
the government can react once subsidies for a given industry are
in place.85
Of course, not all subsidies are as problematic as the examples above, but a subsidy does not come from out of thin air, it is
a result of diverting tax dollars from somewhere else. In revenue
producing carbon taxes discussed later in this Article at least
some of the money can be diverted into subsidies. While not
meant to completely demolish the function of subsidies, at the
very least this section suggests that subsidies should be a light
touch that does not create industry dependency and involves a
sound reallocation of taxes on other industries.
3. Examples of Successful Carbon Tax Regimes
at the National and Subnational Level
An economic theory is best illustrated by practical successes. While individual successes may be questioned or even
dismissed on evidence of other causes, success is a possibility
for taxation at a local or national level. Worldwide, at least 15
countries have some sort of carbon tax regime, but many provide such broad exemptions for various sectors or households
that one wonders if they serve any purpose.86 In North America,
three Canadian provinces have experimented with carbon taxation.87 Australia instituted a carbon tax over a two-year period
from 2012 to 2014.88 In Europe, Ireland has had tentative success on its carbon tax introduced in in 2010.89 An analysis of
these programs is included below.
A. Canadian Provinces
British Columbia, Quebec, and Alberta have attempted
taxation schemes to reduce GHG. In October 2007, Quebec
introduced the first North American carbon tax by introducing a
duty of $3 per ton of CO2 on bulk sales of fossil fuels.90 Alberta
taxed large industrial emitters (greater than 100,000 tons) at a
rate of $15 per ton of CO2.91 British Columbia followed a few
months later to introduce a consumption-based tax designed to
reduce GHG emissions in February 2008.92 British Columbia’s
rates were set up to result in $10 per ton of CO2 emissions, but
were levied at the consumer level.93
The above reductions must also be taken into consideration
alongside the fact that Canada ratified the Kyoto Protocol in
December of 2002 to reduce Canadian GHG emissions by six percent from the 1990 level of 599 million tons of CO2 emissions.94
Despite such an endeavor, Canadian GHG continued to increase
to more than thirty four percent of Canada’s commitment under
Spring 2016
the Kyoto Protocol.95 This was in no small part due to the failure
to introduce substantive policy changes beyond increased “public
education, voluntary initiatives, and fiscal incentives.”96 Such
“pious hopes and good intentions”97 were sought by the Liberal
Party in control of the Canadian government, but the Conservative
Party under direction of Stephen Harper fared no better and the
Canadian government reneged on the commitments in its ascension to the Kyoto Protocol.98 It is with such a political background
that prompted the above attempts by British Columbia and Quebec
to deal with global warming.
A retrospective look indicates a success for British
Columbia. In British Columbia, “[t]he carbon tax has been
good for the environment, good for taxpayers and it has not hurt
the economy.”99 Such a pronouncement is backed by a drop in
per capita fuel consumption by 4.5 percent and unemployment
remaining below the national average.100 Use of all fuels covered
by the tax is down by sixteen percent in six years while Canada’s
Kyoto target was a six percent reduction over twenty years.101
Additionally, the shift in GHG production seems to be in defiance of presumed economic trends and carbon leakage. While
Canada entered an economic downturn in 2007 and continuing
until the present,102 fuel use in other provinces continued to rise
by three percent annually from 2008-2013.103 Likewise, cross
border fuel purchases are said to account for only 1-2 percent of
British Columbia’s sixteen percent reduction in fuel use.104 On
the other hand Alberta and Quebec have had less success, though
at the time of this writing, little conclusive research indicates a
reason why. The devil is in the details.105
B. Australia
Australia’s flirtation with carbon tax was brief, lasting only
two years as the “political stepchild” of political wrangling to
achieve a coalition government in 2011-2012.106 While GHG
gas emissions had been falling for years, the drop from 2012
to 2013 was the largest in 24 years with total emissions falling by 0.8 percent reported in the Sydney Morning Herald,
a right of center daily newspaper.107 The national electricity
market experienced the most marked change in total emissions.
Emissions fell by between 5 and 8 million tons from 2012 to
2013 and between 6 and 9 million tons from 2013 to 2014.108
After the repeal of the carbon tax in 2014, emissions have
fallen back to their previous levels.109 It is unclear if the sudden rise is directly attributable to the repeal of the carbon tax
as “the government was ‘ripping away’ at other policies curbing emissions, with plans to scrap the Australian Renewable
Energy Agency, the Clean Energy Finance Corp, and energy
efficiency programs.”110 As with Alberta and Quebec, the lack
of conclusive peer-reviewed data makes it difficult to make
firm conclusions, but the economic data may be helpful.111
C. Ireland
Ireland instituted its carbon tax regime in 2010 and has
been “quite successful”112 when considering economic data and
overall emissions.113 The Irish method involved taxation directly
on the consumer in a draconian method that included even the
weighing of non-recycled residential garbage for taxation.114
31
The tax was implemented in the wake of the global financial crisis and ahead of the Kyoto Protocol deadline of 2012.115 Bearing
in mind that emissions other than electricity production had been
slowly falling for some time since the late 1990s, emissions fell
dramatically in the period immediately after the tax by 22.4 percent between 2010 and 2012.116 Total emissions declined again
in the by an additional 0.7 percent from 2012 to 2013.117
4. But Why an International Carbon
Tax Regime?
The idea of an international carbon tax in scholarly circles
is not new, but it is generally mentioned merely as a footnote
in broader discussions of international environmental issues.
The Honorable Richard L. Ottinger posited an international
carbon tax in 1991, stating affirmatively that “[i]t is time to
institute one.”118 However, he provided no framework for such
implementation and merely acknowledged the problems associated with carbon leakage and the fledgling attempts at carbon
taxes in Sweden, Finland, Netherlands, Germany, Norway,
and Switzerland.119 Analysis remained tangential and fettered
throughout the next two decades with one author suggesting that
there should be a harmonization at a domestic level with all participating countries setting a standard tax rate.120 The final word
on analysis of an international carbon tax in the 1990s was that
the Kyoto Protocol was the only viable option.121 The following
decade was not much of an improvement with one article positing that it was impossible to know precisely how much emission reduction could be achieved by a tax system; developed
countries were already tax averse, and developing countries
would need assistance.122 Such concerns were reiterated shortly
thereafter.123 Other works have posited the benefit of an international carbon tax in their ability to incorporate existing domestic
carbon taxation schemes as harmonization is reached.124
In considering successful carbon taxation schemes, a question arises on why an international solution is needed if domestic
remedies have been successful; in short, domestic remedies are
not sufficient. One of the problems of Kyoto was that it was
not truly collective action but a commitment to set national
targets that did not really address the collective problem.125 As
with any Tragedy of the Commons collective problems require
collective action through some centrally administered body.126
Dealing with a collective issue of GHGs, this Article argues that
a carbon tax applied in a harmonized fashion at national level
will accomplish such a goal. First, from a practical standpoint,
carbon leakage is a key concern on any domestic regime. While
earlier analysis demonstrates that economies may continue to
prosper with emissions constrained by taxes, it does not entirely
refute the argument that taxation will induce industries to merely
move across borders to avoid taxes and cause no net change in
worldwide emissions.127 Second, many domestic regimes are not
in a position to deal with adaptation costs.128 As detailed below,
international coordination to disperse revenue to the most vulnerable through a harmonized taxation scheme may be the best
method to solve the above problems.
32
An international carbon tax envisioned in this Article will
be: 1) harmonized and created by a new treaty body 2) collected by domestic governments 3) enforced by tariffs on nonparticipatory countries in compliance with Article XX of the
GATT 4) a portion of funds collected domestically to be paid
to an international agency for the purposes of funding adaptation costs. Such a domestic carbon tax harmonized across all
countries offers a cost-effective means of obtaining CO2 reductions.129 Additional taxes upon existing national frameworks will
differ from country to country to account for existing taxes and
other constraints.130 Furthermore, rather than an arbitrary allocation of quotas with discord between developed and developing
countries, a carbon tax will be a mutually agreed upon action
for all.131 Finally, though there are other GHGs responsible for
climate change, CO2 is the most ubiquitous and under current
production, the most harmful. Other GHGs can be dealt with as
the CO2 regime becomes entrenched and successful.
A. Harmonization
We must begin to look at the producers of pollutions as the
giant Multinational Enterprises (MNEs), which eclipse the economic power of many nations. While some would argue that the
nation states should be responsible for the pollutions of its economic citizens, this is short sighted for three reasons. First, the
proliferation of MNEs means great difficulty in establishing the
nexus of a business’ operation. Secondly, if we consider gross
profits as analogous to a country’s GDP, the profits of the largest
multi-national companies have allowed them to eclipse many
gross domestic products of individual nations.132 Most developed nations have instituted eco taxes at some level of another.
Such an international scheme is not unprecedented, as some
have proposed a sort of UN Global Transaction Tax.133 A criticism
is that allowing the money to pass through the hands of individual
governments creates suspicion that the money is not going directly
to the appropriate areas.134 Though some might suggest that states
could merely earmark based on appropriate demands,135 this relies
on the political whims of the nation states involved. Lasting positive change will come in the form of some sort of international
accord, protocol, or treaty.136 Such an explanation of how a treaty
regime can work is described later in the section on how to collect
and allocate an internationally pooled fund.
B. A Tax upon Whom?
Moving forward will mean not repeating the same mistakes
of the Kyoto Protocol. Taxing only industrialized countries gives
those countries an incentive to not participate with political talking points to justify that lack of participation.137 While the Kyoto
Protocol seemed to ignore the rising emissions of the developing
countries, all countries should levy a comprehensive tax scheme
on point-source producers of GHGs. This will serve to avoid
the problems of Kyoto with countries like the United States not
participating at all or countries like Canada pulling out when it
is politically expedient. Targeting point-source producers rather
than consumers is necessary because the consumer lacks the
economy of scale to make large-scale adjustments to a sudden
increase in price while a point-source producer can spread initial
Sustainable Development Law & Policy
costs among myriad consumers while simultaneously working
to increase efficiency to maintain profitability in the long run.
Because countries generally report to the IMF on their macroeconomic policies, GDP, and other information, it is easy to
establish a baseline on existing revenues and profits of the major
industries subject to a harmonized tax regime.138 Finally, it is
folly to say that companies and nations would revolt at such a
large-scale tax scheme. Within the confines of the European
Union (EU) nations have been willing to assent to a broader
scheme.139 Likewise, businesses in the US and the EU have been
willing to comport to attempts at carbon trading; therefore, it is
reasonable to conclude that other measures can be met with the
same grudging acceptance.
C. Method of Enforcement
One of the biggest problems in the Kyoto Protocol was the
disheartening lack of participation by countries like the US in
the final negotiations and ratification process.140 Any taxation
scheme will require buy-in from all the major and developing nations. But without coercive measures, what can be done
about free riders among
developed nations, which
have persistent resentment
of taxation, regardless of the
source or justification?141
Border adjustments142 may
serve to force harmonization on imports from nations
who refuse to participate in
an international carbon tax
regime and can provide the
method by which participatory nations can coerce the
outliers into compliance.143
Such border adjustments
work in two ways to ensure compliance. First, they protect one
nation from a lack of competitiveness for domestic producers
at the hands of foreign producers not subject to a similar tax
scheme.144 Secondly, they reduce the incentive of free riders to
not apply taxes domestically, because taxes levied on exports at
their destination will mean no direct benefit to the companies
who avoid domestic tax burdens. Moreover, not only are such
measures likely in compliance with the GATT, but also have
actually been recommended in the past as a way to salvage the
Kyoto Protocol.145
GATT Article XX is an avenue to justify preferential measures that would otherwise violate GATT provisions, provided
these measures are not “arbitrary or discriminatory.”146 However,
a WTO Panel is responsible for determining whether something
falls within an Article XX exclusion or whether it runs afoul of
Articles I147 and III.148 Whether a coercive measure attempting to
harmonize taxation when dealing with nonparticipating free riders is within exceptions under Article XX149 is subject to debate,
but at least some preliminary analysis suggests they would be.
GATT Article III allows taxation on imports under its “national
treatment”150 clause.151 Though differentiation is made between
final product national treatment and process-based national treatment, at least some preliminary analysis of WTO cases suggest
that Article III can be avoided.152 GATT Article I is the largest
concern generally under the most-favored-nation clause, which
would disallow taxes to be levied on one nation but not the other
given that all signatories are to be afforded most-favored-nation
status under the WTO.153 However, Shrimp/Turtle154 has demonstrated a “fundamental shift in WTO jurisprudence”155 when
considering environmental concerns. In either case, it seems
that border adjustments that serve to protect human animal and
plant life or ensure the conservation of an exhaustible natural
resource are acceptable within the WTO framework.156 While
such wording seems to be the flowery language of unenforceable
treaty bodies criticized in the introduction to this Article, they
have been directly confirmed in EC-Asbestos157 contingent on
how “vital or important [the] common interests and values”158
pursued by such a border adjustment could actually be.159
The scheme as proposed in this Article creates a market
incentive. Lower taxes after abiding by WTO norms mean lower
prices. This encourages the
buy-in from consumers on
whether or not a company is
“green” and means the consumers are merely thinking
with their wallets.160
“One of the biggest problems
in the Kyoto Protocol was the
disheartening lack of participation
by countries like the US in
the final negotiations and
ratification process.”
Spring 2016
D. Revenue
Gaining Tax
One of the purposes of
an international agreement to
harmonize domestic carbon
tax regimes is to create revenue, which can be spent in
two ways. First some of the
money can be turned around for subsidies, which were discussed
previously as a half-measure to be used alongside a responsible
taxation regime.161 Such subsidies would result in more efficient
manufacturing and production as well as greener technology.
Secondly, some of the money should be allocated toward an adaptation fund that will serve to help nations with little responsibility
for CO2 production but face much of the consequences.162 Some
634 million people live within the low elevation coastal zone, a
region defined as being less than ten meters above sea level.163
How to defend them from rising sea levels is the first question
among many in considering how to deal with climate change and
how to spend revenue from a carbon tax. Something akin to a
superfund can serve any number of purposes. The easiest target
is protection from flooding caused by rising seas. As pointed out
earlier, delay is a false economy, and the long-term damage caused
by flooding is far more expensive than the short-term costs of
preventing it.164
Some have posited a revenue neutral tax, meaning that for
every dollar of tax created, taxes will be cut somewhere else.165
However, when considering the amount of revenue that can be
33
generated by a tax on point-source producers may stagger the
imagination. The top five oil companies alone consistently earn
around $100 billion annually.166
E. Nationally Administered or Pooled Funds?
The trickiest question about an international carbon tax is
whether funds from a revenue producing tax should be nationally
administered or pooled. It is a laughable proposition that nations
would willingly send billions of tax dollars out of the country,
but it is not beyond the realm of possibility that countries can be
induced to contribute to at least some sort of international fund
that would help developing nations. Such a hypothetical pooled
fund may result in a two-fold benefit: 1) it serves as a show of good
faith by developed nations for taking responsibility for past action.
2) as developing nations begin to incorporate changes pushed for
by an international carbon tax regime, earmarks can be set aside
to fund the education of key people in the developing world which
is a growing source of pollution and unsustainable development.
Such a method can help bring the developing countries to a higher
level and reduce the short-term costs imposed in international
environmental regimes that unfairly punish the developing countries going through the same growing pains of the OECD nations
during the 1800s and 1900s.
Of course, any funds
taken out of the country to
be invested abroad can be
justified as an incentive for
countries to “cheat” on their
levies, but cheating can still
be mitigated with the coercive measures in the previous
section dealing with why border adjustments are acceptable under Article XX of the
WTO. Facing taxation on exports overseas for failure to comply
means there is no incentive to dodge domestically. On the other
hand, even a tiny fraction of levied taxes could go a long ways
when pooled together in a sort of superfund. Ireland’s 2010 yield
from taxation came to $330 million.167 This is a paltry sum as
individually imposed and less than one percent of Ireland’s 2012
GDP of $224 billion,168 but a similar figure applied to the current Gross World Product (GWP) would amount to $111 billion
in total taxes collected.169 A mere one percent fund to be targeted
at the most vulnerable areas could go a long way to repairing
some of the harm caused by global warming.170
This sort of “eco-tax”171 is not placed upon nations by an
international body. Such a move is not only unprecedented but
far too bold within the current paradigm. Eco-taxes are not a
new concept unto themselves,172 but can be analogized to the
numerous countries which have applied eco-taxes upon citizens
and businesses. However, such a tax should be applied upon
businesses rather than upon the nations, for it is the businesses
responsible for the damage rather than the collectivity of the
nations. Though the nation state is the dominant regime for political purposes, a tax upon a nation moves beyond the “polluter
pays” principle favored by many economists.173 By levying the
tax upon business, the cost is internalized and placed upon the
consumer, which allows the free market to continue thriving
while a race to lower prices functionally conserves the environment as producing less environmental harm means less taxation
and thus lower internalization of costs.174
A treaty regime is necessary to overcome the fear of action
by nations holding a “you first”175 stance on climate change.
Carbon leakage happens when a nation or a group of nations
attempts to change the dynamic of carbon usage allowing third
parties to take advantage of the glut in cheaper fossil fuels,
production techniques, etc.176 While countries could protect key
industries from such unfair international competition, to do so
would be nonsensical as these key industries would be the largest source of carbon production leaving behind only half measures with little gains to show.177 The only way to prevent free
riders is to develop an international scheme that has all the major
actors, whether developed or developing, on the same page of
taxation in a manner that allows the free market to establish new
paradigms without the problems associated with carbon trading,
command and control regulations, and subsidies.
The road map forward will look similar to that which has
already been accomplished
in the International Maritime
Organization (“IMO”). The
IMO is a 171-nation strong
specialized agency of the
United Nations, which develops comprehensive regulations for shipping as well
as deal with environmental
issues, maritime security
and efficiency in world ship178
ping. Throughout the last 35 years of history, the IMO has
been part of a fund which was to be used as a payout for countries
and individuals hurt by oil spills.179 The name and function of
the fund has changed with time, but the 1992 Fund Convention
boasts 114 parties and the 1992 Supplementary Fund Protocol
31.180 The 1992 fund capped the maximum amount payable to
135 million Special Drawing Rights (SDR),181 which at the time
of this writing has an exchange rate of approximately .72 SDR to
1 USD.182 The 2003 Protocol limits compensation to 750 million
SDR and is funded by annual contributions to the fund from any
person who has received total quantities of oil exceeding 150,000
tons, assuming the individual is a member of a state with at least
1,000,000 tons of oil.183 The fund itself is independent of the
United Nations and actually governed by the International Oil
Pollution Compensation Funds (IOPC Funds).184
The IOPC Funds can be considered a success. There first
use was in the 1999, Erika Spill in which a Maltese-registered
tanker broke into two sections 60 nautical miles from the
Brittany coast.185 Approximately 19,800 tons of the 31,000
tons of heavy oil aboard the ship spilled onto 400 kilometers of
shoreline.186 After a series of legal wrangling to determine how
much would be paid by private insurance and to determine the
“A treaty regime is necessary to
overcome the fear of action by
nations holding a ‘you first’
stance on climate change.”
34
Sustainable Development Law & Policy
actual damage, some €116.9 million had been paid by IOPC
2014 to some 131 claimants.187
5. Synthesis and Conclusion
The treaty envisioned in this Article is unlike anything else
currently in existence; though analogies can be made in several
manners. There are two key features. First, countries agree to a
harmonized carbon taxation regime to be levied at the domestic
level. Second, a small percentage of the national tax is allocated
to a pooled fund which serves to deal with adaptation cost, as
well as to help developing nations grow in a more sustainable
and responsible manner than their developed predecessors.
This broad deference to national governments resembles the
Kyoto Protocol, but differs in two significant ways. First, it does
not give a pass to “developing nations” including China which
now has a rapidly growing per capita share of the world’s largest economy. Second, a cabal of industrialized nations can coerce
nonparticipants with an exhaustible resources exception under
GATT Article XX.188 Where Kyoto failed, this treaty can succeed.
The second feature of the treaty is more questionable from
a logistics standpoint. Though nations can coerce participation
in the harmonized taxation scheme, it is unlikely that the type of
coercion allowable under GATT Article XX will also allow punitive measures to hold nations hostage over their unwillingness
to participate in an international fund. However, it is a relatively
small burden on national budgets that can have huge implications for world-wide adaptation costs.
Though the IOPC has been used as an example of an
international fund, what is envisioned in this treaty is different
for the fact that it would include all nations rather than just oil
importers. It also differs in that, resources will be allocated in an
anticipatory manner for issues related to an ongoing low level
catastrophe of climate change, rather than payment for a single
major event like an oil spill. Such analysis of where the money
can and should be spent is beyond the scope of this Article.
Not all environmental issues can be solves with a taxation
scheme. As with CFCs, some require draconian measures to
completely eliminate a problem. The use of technologies and
resources which create GHGs is so pervasive, there is no way
to remove the problem from society without turning the clock
back some 200 years. However, that does not mean we must
take a fatalistic approach. We can reduce the flow of CO2 into
the atmosphere, and we can work toward more sustainable
development. If we have reached the point of no return, then
we can seek to reduce the harms caused by climate change.
This is an international problem that requires an international
solution. The methods outlined above are a possible means of
moving forward.
Endnotes: Developing an International Carbon Tax Regime
1 See
generally Kyoto Protocol to the United Nations Framework Convention
on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37
I.L.M. 22 (1998) [hereinafter Kyoto Protocol].
2 See Robert Townsend, Revisiting the Kyoto Protocol: Reducing CO2
to Prevent Climate Change Disasters, Old Dominion Univ. Model United
Nations Soc’y 1, 2 (2014), https://www.odu.edu/content/dam/odu/offices/
mun/2014/unwc/wc-revisiting-the-kyoto-protocol-reducing-co2-to-preventclimate-change-disasters.pdf.
3 See generally Kyoto Protocol, supra note 1.
4 See Richard N. Cooper, Toward a Real Global Warming Treaty, Foreign
Affairs 66, March/April 1998, available at https://www.foreignaffairs.com/
articles/1998-03-01/toward-real-global-warming-treaty.
5 See generally Global Greenhouse Gas Emissions, U.S. Envtl. Prot.
Agency, http://www3.epa.gov/climatechange/science/indicators/ghg/globalghg-emissions.html (last visited Apr. 19, 2016) (referencing “key points”
section).
6 Townsend, supra note 2, at 3.
7 United Nations Conference on Environment and Development, Rio de
Janeiro, Braz., June 3-14, Rio Declaration on Environment and Development,
U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), principle 7 (1992).
8 See Charlie E. Coon, Why President Bush Is Right to Abandon the Kyoto
Protocol, Heritage Foundation (May 11, 2001), http://www.heritage.org/
research/reports/2001/05/president-bush-right-to-abandon-kyoto-protocol (noting that four fifths of countries were not required to comply with the goals of
the Kyoto Protocol, in addition to the United States declining the ratification of
the Kyoto Protocol). See generally Overview of Greenhouse Gases, U.S. Envtl.
Prot. Agency, http://www.epa.gov/climatechange/ghgemissions/gases/co2.html
(last visited April 14, 2016) (referencing the graph showing an increase of Carbon Dioxide Gas Emissions during the 1990s, the stabilization of these emissions, and their subsequent decrease since 2006 in the United States albeit its
decision to decline ratifying the Kyoto Protocol. Though some equate the drop
in CO2 to the recession, after economic recovery, the United States resumed its
reduction in GHGs from 2010-2012 with 2012 coming to a twenty-year low in
CO2 Emissions.) [hereinafter Overview of Greenhouse Gases]; Rachel Nuwer, A
Spring 2016
20-Year Low in U.S. Carbon Emissions, N.Y Times: Green Energy, the Env’t.
and the Bottom Line (August 17, 2012 6:24 P.M.), http://green.blogs.nytimes.
com/2012/08/17/a-20-year-low-in-u-s-carbon-emissions/?_r=0 (indicating that
carbon dioxide has dropped a significant amount during this decade); Overview
of Greenhouse Gases, supra (noting that there was a slight rise in 2013 and
2014 can likely be attributed to a continued strengthening of the US Economy
but one could view this as a return to the relatively stable emissions beginning
in 2004).
9 See CO2 Emissions (Metric Tons Per Capita), World Bank, http://data.
worldbank.org/indicator/EN.ATM.CO2E.PC (last visited April, 14, 2016).
10 See id.
11 The United States, China, and India report steady population growth rates
with the United States at seven percent, China five percent, and India one and
one-tenth percent. Population Growth (Annual %), World Bank, http://data.
worldbank.org/indicator/SP.POP.GROW/countries (last visited Apr. 2, 2016)
(using dataset from 2011-2015).
12 Using estimates from the World Bank from previous footnotes, I have
extrapolated the data to show that China will surpass current per capita CO2
emissions of the United States within 16 years, India within 18 years. I lack the
algebraic expertise to predict the exact convergence of per capita downward
trends in the US and upward trends in India and China.
13 Canada Under Fire Over Kyoto Protocol Exit, BBC (Dec. 13, 2011), http://
www.bbc.com/news/world-us-canada-16165033.
14 See Nastassia Astrasheuskaya, Russia Will Not Cut Emissions Under
Extended Kyoto Climate Pact, Reuters (Sept. 13, 2012 9:39 A.M.), http://www.
reuters.com/article/2012/09/13/us-russia-kyoto-idUSBRE88C0QZ20120913;
see also CO2 Emissions (Metric Tons Per Capita), supra note 9 (indicating that
Russia has maintained its an average of 12.6 metric tons per year of Carbon
Dioxide Emissions).
15 See Townsend, supra note 2, at 3.
16 See Tim Herzog et. al., Navigating the Numbers: Greenhouse Gas Data
and International Climate Policy, World Resources Institute 63, available
continued on page 48
35
The Law of the Seas: A Barrier to
Implementation of Sustainable Development
Goal 14
Alexi Nathan
T
he inclusion of a stand-alone ocean goal in the United
Nation’s Sustainable Development Goals (SDGs) showcases the growing recognition of the importance of the
sustainable use of our global oceans. Oceans cover nearly onethird of the Earth, affecting almost all aspects of life.1 They are
responsible for holding 97% of the planet’s water and “they produce more than half of the oxygen in the atmosphere and absorb
the most carbon from it.”2 In addition, “about half of the world’s
population lives within [a] coastal zone, and ocean based-business contribute[s] to more than $500 billion to the world’s economy.”3 Oceans have far-reaching effects on human well-being,
as well as the environment and the economy. Sustainable use of
oceans can contribute to reducing global warming, increasing
global employment, and providing sustenance to over three billion people worldwide.4 However, global oceans remain undervalued, mismanaged, and inadequately governed.5
Despite their recognizable importance, oceans were disappointedly ignored in the SDG’s predecessor, the UN Millennium
Development Goals.6 However, in 2012, at the UN Conference
for Sustainable Development, oceans gained prominence and
visibility in the global sustainable development discussion.7
The final declaration of the Conference, titled “The Future We
Want” contained twenty paragraphs dedicated to the ‘Ocean and
Seas,’ constituting the largest section in the declaration.8 These
paragraphs eventually contributed to the creation of SDG 14,
to “Conserve and sustainably use the oceans, seas and marine
resources for sustainable development.”9 The goal is designed to
address a variety of issues including marine pollution, fisheries
conservation, and ocean acidification.10
While the inclusion of a stand-alone ocean goal in the
SDG’s marks an important development in ocean advocacy,
implementation of the goal will prove difficult. Implementation
of SDG 14 will be governed by international law as reflected
within the United Nations Convention on the Law of the
Seas (UNCLOS).11 UNCLOS provides the legal framework
for the conservation and sustainable use of oceans and their
resources.12 UNCLOS, known as the Law of the Seas Treaty
(LOST), was ratified and adopted by 167 parties in 1982.13
The treaty requires parties to adopt regulations and laws to
control pollution of the marine environment.14 The treaty also
establishes specific jurisdictional limits on the ocean area that
countries may claim.15
Despite its global acceptance, UNCLOS has received continued criticism since its adoption. One of the major problems
36
with the Convention is the lack of legal rules regarding the
high seas.16 The “high seas” make up the sixty-four percent of
the ocean that is beyond the jurisdiction of any State as defined
by the Convention.17 When UNCLOS was first negotiated,
the high seas were largely ignored due to inaccessibility.18
However, after almost forty years of technological innovation,
there is virtually nowhere that industrial fishing vessels cannot reach, consequently opening the high seas to exploration
and exploitation.19 This has led to increased mismanagement,
despite the fact that the high seas play a major role in the overall health of our global oceans.20
In many ways, the high seas act as the heart of the entire
marine ecosystem and the health of the high seas, in large part,
reflects the health of the global ocean as a whole.21 However,
the sheer size of the high seas makes them extremely difficult
to monitor and control, leading to little protection for the most
vulnerable portions of global oceans. This lack of governance
has led to overfishing, resulting in the exploitation of over
two thirds of the high seas fish stocks.22 The United Nation’s
attempt at governance can be found in Article 87 of UNCLOS,
which allows States the freedom to fish and conduct scientific
research, while requiring the States to protect and conserve the
high seas and the resources within.23 However, these freedoms
are often exploited by States with the money and ability to do
so, leaving the poorer and under-developed States at a significant disadvantage.24
Further problems arise from the fact that UNCLOS only
applies to States, leaving the activities of non-state actors wholly
unregulated by international law.25 This affords private actors,
such as shipping companies, a large amount of flexibility in their
operations. These companies are often motivated by the desire to
reap never-ending profits, which leads to their general disregard
for the health and maintenance of the high seas.26 For example,
in 1984 Japan licensed the Institute of Cetacean Research
(ICR) to conduct research projects, which involved the killing
of whales on the high seas.27 The Sea Shepard Conservation
Society (SSCS), an American NGO, initiated proceedings
against ICR for the violation of environmental laws.28 However,
because both entities are considered private actors, they are not
subject to the same legal obligations as States under Article 87
of UNCLOS.29 Without the same legal implications as States,
* Alexi Nathan is a J.D. candidate 2018 at American University Washington College of Law.
Sustainable Development Law & Policy
non-state actors, such as the ICR, will continue to be held unaccountable for their actions.
For the SDG 14 to be successful, the governing law—
UNCLOS— must be reevaluated. Several of the SDG 14 targets will be difficult to achieve without increased focus on the
health and security of the high seas. For example, SDG 14.4
establishes the SDG parties’ agreement to “ . . . end overfishing, illegal, unreported and unregulated fishing, and destructive fishing practices . . . ”30 The majority of illegal overfishing
occurs on the high seas,31 and therefore, absent new UNCLOS
provisions strengthening high seas protection, this target cannot be met. Further, SDG 14.7, the agreement to “increase
the economic benefits to Small Island developing States and
least developed countries from the sustainable use of marine
resources, including through sustainable management of fisheries, aquaculture and tourism,” is unlikely be achieved without
improved regulations regarding the freedom of the high seas.32
Without stronger enforcement, the wealthier, developed States
and non-state actors will be allowed to continue to profit from
the unsustainable use of the high seas at the expense of underdeveloped States.
Increased recognition of the importance of the oceans
marks a noteworthy milestone for the sustainable development
movement as a whole. However, progress cannot be made
without a greater emphasis placed on the governance of the
high seas in the UNCLOS. The inclusion of the stand-alone
ocean goal in the SDG’s has provided the international legal
community with the opportunity and the pressure to address
the problems regarding the high seas in UNCLOS. Addressing
this absence is vital to the sustainable use of our oceans, which
is in turn, vital to enabling, supporting and improving each and
every life on Earth.
Endnotes: The Law of the Seas: A Barrier to Implementation of Sustainable
Development Goal 14
1 Oceans
provide living resources, such as fish and other seafood, non-living
resources, such as oil, gas and minerals, as well as renewable energy through
tides and waves, trade and migration routes, in addition to tourism, leisure and
recreation activities. See From Decline to Discovery – A Rescue Package for
the Global Ocean, Global Ocean Comm’n, 2014, http://www.globaloceancommission.org/wp-content/uploads/GOC_Report_20_6.FINAL_.spreads.pdf (last
visited Mar. 24, 2016) [hereinafter From Decline to Discovery].
2 Why are oceans important? Protect Planet Ocean, http://www.protectplanetocean.org/collections/introduction/introbox/oceans/introduction-item.
html (last visited Mar. 24, 2016) (finding that the ocean’s inability to absorb
carbon leads to ocean acidification, which may have dramatic effects on ocean
life).
3 Id. (illustrating the importance of oceans on the global population and
economy).
4 See Goal 14: Conserve and sustainably use the oceans, seas and marine
resources, United Nations, http://www.un.org/sustainabledevelopment/oceans/
(last visited Mar. 24, 2016) [hereinafter Goal 14].
5 See Remi Parmentier, SDG at Sea, Sustainable Dev. Policy and Practice
(Sept. 17, 2017), http://sd.iisd.org/guest-articles/sdg-at-sea/ [hereinafter SDG at
Sea]; see also Goal 14, supra note 4 (explaining that pollution, fisheries depletion and coastal habits loss occurs in approximately 40% of global oceans).
6 See SDG at sea, supra note 5 (acknowledging that the presence of oceans
in the Millennium Development Goals was limited to a minor reference to
sustainable fishing and marine protected areas).
7 See id.
8 See id.
9 Goal 14, supra note 4; see also Future We Want – Outcome document,
Sustainable Dev. Knowledge Platform https://sustainabledevelopment.un.org/
futurewewant.html (last visited Mar. 24, 2016) (Paragraphs 158 through 180 of
the “Future We Want” address oceans and seas, and paragraph 158 explicitly
contains the language of SDG 14, specifically “We stress the importance of the
conservation and sustainable use of the oceans and seas and of their resources
for sustainable development”).
10 See id.; see also Ocean Acidification, Pac. Marine Envtl. Lab. Carbon
Program http://www.pmel.noaa.gov/co2/story/Ocean+Acidification (last visited
Mar. 24, 2016) (defining ocean acidification as the ongoing decrease in pH
levels in global oceans, caused by the increase of carbon dioxide in the atmosphere, contributing to global warming).
11 See Goal 14, supra note 4.
12 See id.
13
See Oceans & Law of the Sea, United Nations, http://www.un.org/Depts/
los/reference_files/chronological_lists_of_ratifications.htm (last visited Mar. 24,
2016).
14 See The Law of the Seas Treaty (LOST)- Background, The United Nations
Law of the Sea Treaty Info. Ctr, http://www.unlawoftheseatreaty.org (last
visited Mar. 24, 2016).
15 See id. (explaining that countries have territorial jurisdiction spanning up to
twelve miles from the coastline out to sea, and exclusive economic jurisdiction
up to 200 miles out to sea).
16 See From Decline to Discovery, supra note 1.
17 See id. (defining the high seas as the area beyond a State’s exclusive economic jurisdiction).
18 See id.
19 See id. (The introduction of factory fishing vessels in the 1950’s opened
the high seas to increasing consumer demands for fish, oil minerals, and other
natural resources).
20 See id.
21 See id. (noting the high seas are responsible for vital aspects of marine life,
such as “air purification, waste treatment and lifecycle maintenance,” among a
long list of duties).
22 See The tragedy of the high seas, The Economist (Feb. 22, 2014), http://
www.economist.com/news/leaders/21596942-new-management-neededplanets-most-important-common-resource-tragedy-high (noting that nearly ten
million tons of fish are caught on the high seas annually).
23 See From Decline to Discovery, supra note 1; Preamble to the United
Nations Convention on the Law of the Seas, United Nations, http://www.
un.org/depts/los/convention_agreements/texts/unclos/part7.htm (last visited
Mar. 24, 2016).
24 See From Decline to Discovery, supra note 1 (describing how wealthier
nations have targeted the waters of poorer coastal states and the high seas, leaving issues of food security in the poorer nations who do not have the wealth or
technology to compete).
25 See Tina Shaughnessy, Flags of Inconvenience: Freedom and Insecurity on
the High Seas, https://www.law.upenn.edu/journals/jil/jilp/articles/1-1_Shaughnessy_Tina.pdf (last visited Mar. 24, 2016) (noting that shipping companies
often have differing interests than the interests of coastal states) [hereinafter
Flags of Inconvenience].
26 See id.
27 See Irini Papanicolopulu, Law of the Sea Symposium: Whaling wars, nonstate actors and the international responsibility, Opinio Juris (May 27, 2013),
continued on page 52
Spring 2016
37
Endnotes: Lodging the Sustainable Development Goals in the International Trade Regime: From Trade
Rhetoric to Trade Plethoric
continued from page 13
13 See
Deepak Nayyar, The MDGs after 2015: Some Reflections on the
Possibilities 5-6, 11 (2012), available at http://www.un.org/millenniumgoals/
pdf/deepak_nayyar_Aug.pdf.
14 See Schrijver, supra note 7, at 25.
15 See generally Millennium Development Goals and Beyond 2015: Background, U.N., http://www.un.org/millenniumgoals/bkgd.shtml (last visited Apr.
17, 2016) (listing each goal with its accompanying hyperlink).
16 See Transforming Our World: The 2030 Agenda for Sustainable Development, G.A. Res. 70/1, ¶ 18 U.N. Doc. A/RES/70/1 (Oct. 21, 2015).
17 See Sustainable Development Goals, U.N., http://www.un.org/sustainabledevelopment/sustainable-development-goals/ (last visited Apr. 17, 2016).
18 See Zachary Rice et al., Listening to Leaders: Which Development
Partners Do They Prefer and Why? 83 (2015), available at http://aiddata.org/
sites/default/files/publication_full_2.pdf (noting that in a joint effort, the World
Bank’s Development Committee described the process of financing the SDGs
as meeting “the investment needs of the Sustainable Development Goals, the
global community needs to move the discussion from “Billions” in ODA to
“Trillions” in investments of all kind: public and private, national and global,
in both capital and capacity.” (citing African Dev. Bank et al., From Billions
to Trillions: Transforming Development Finance, Post-2015 Financing for
Development: Multilateral Development Finance 1 (2015), available at
http://issuu.com/copcutbrasil/docs/55a513bf6b19a)).
19 See Rice et al., supra note 18, at 83.
20 The nature of U.N. General Assembly resolutions is discussed in art. 10
of the U.N. Charter, where the Assembly “may make recommendations to the
members of the United Nations of to the Security Council or to both on any
such matters of questions.” See U.N. Charter art. 10.
21 See Nayyar, supra note 13, at 11.
22 See Understanding the WTO: Basics, WTO, https://www.wto.org/english/
thewto_e/whatis_e/tif_e/fact2_e.htm (last visited Apr. 17, 2016).
23 Roberto Azevêdo, Director-General, World Trade Org., Speech at the
Peterson Institute (Sept. 24, 2015) (transcript available at https://www.wto.org/
english/news_e/spra_e/spra81_e.htm) (elaborating that “What we have found
so far is that WTO rules provide the basis for many RTAs. When RTAs deal
with issues covered by WTO disciplines, those disciplines are maintained. This
is mostly the case in anti-dumping provisions, safeguards, technical barriers to
trade, sanitary and phytosanitary measures, and rules of origin in services.”).
24 See generally id. (noting that Azevedo referred to the success of the WTO
as “part of the architecture of global economic governance.”).
25 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,
at Preamble, 1994, 1867 U.N.T.S. 154 [hereinafter “Marrakesh Agreement”].
26 See generally General Agreement on Tariffs and Trade, Oct. 30, 1947, 61
Stat. A-11, 55 U.N.T.S. 194 (Preamble) [hereinafter GATT] (mentioning “Being
desirous of contributing to these objectives by entering into reciprocal and
mutually advantageous arrangements directed to the substantial reduction of
tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce.”).
27 See Padideh Ala’i, Trade and Sustainable Development, 4 Sungkynkwan J.
of Sci. & Tech. L. 63, 65 (2010).
28 Id.
29 See GATT, supra note 26, at 1 (noting that its language pertains to raising standards of living, full employment, economic growth, and full use of
resources is similar to the one found in the Marrakesh Agreement Preamble).
30 See Marie-Claire Cordonier Segger & Markus W. Gehring, Introduction in
Sustainable Development in World Trade Law, 1, 7 (2005).
31 Id. at 7-8
32 Id. at 9-10. See also Appellate Body Report, United States-Import Prohibition of Certain Shrimps and Shrimp Products, ¶ 154 WT/DS58/AB/R (Oct.
12, 1998) [hereinafter Shrimp-Turtle] (quoting the Appellate Body in the
Shrimp-Turtle case where it stressed “We also note that since this preambular
language was negotiated, certain other developments have occurred which help
to elucidate the objectives of WTO Members with respect to the relationship
between trade and the environment. The most significant, in our view, was the
Decision of Ministers at Marrakesh to establish a permanent Committee on
Trade and Environment (the “CTE”)… In this Decision, Ministers took “note”
of the Rio Declaration on Environment and Development 147, Agenda 21148,
and “its follow-up in the GATT, as reflected in the statement of the Council
38
of Representatives to the CONTRACTING PARTIES at their 48th Session in
1992...”).
33 Ala’i, supra note 27, at 65.
34 See Segger & Gehring, supra note 30, at 10.
35 Id. at 11.
36 See generally Robert Howse, Mainstreaming the Right to Development into
the World Trade Organization, in Realizing the Right to Development, Essays
in Commemoration of 25 Years of the United Nations Declaration on the
Right to Development 249, 252-253 (2013), available at http://www.ohchr.
org/Documents/Issues/Development/RTDBook/PartIIIChapter18.pdf (noting
that Howse quotes both Kevin Davis and Benedict Kingsbury’s take on the
implications of over-burdening fragile states with obligations imposed on them
by global governance institutions).
37 See id. at 252.
38 See id. at 252 (inferring that because of the inclusiveness indicative of the
meta-structures, there is an aspect of seclusion and lack of transparency).
39 See Marrakesh Agreement, supra note 25, at Preamble.
40 See Howse, supra note 36, at 253.
41 See John H. Jackson et. al, Legal Problems of International Economic
Relations: Cases, Material, and Text 1281 (West 6th ed. 2013) (noting that
Special and Differential treatment includes exempting LDCs from export subsidy ban, increased participation of developing countries in the General Agreement on Trade in Services (GATS), in addition to elongated transition periods to
fulfill new commitments).
42 Howse, supra note 36, at 253(providing a background on the Doha Development Round).
43 World Trade Organization, Ministerial Declaration of 14 November 2001,
WT/MIN(01)/DEC/1, 41 I.L.M. 746 (2002) [hereinafter Doha Declaration].
44 See Segger & Gehreng, supra note 30, at 20-21.
45 See Ala’i, supra note 27, at 67.
46 See GATT, supra note 26, at art. XX.
47 See generally Shrimp-Turtle, supra note 32, at ¶ 128, 153 (noting that
Article XX is a living and breathing).
48 See id. at ¶ 153.
49 See Ala’i, supra note 27, at 67.
50 Shrimp-Turtle case ¶ 153.
51 Ala’i, supra note 27, at 77.
52 UNGA Second and Third Committees kick off in New York, DESA
News (Nov. 2015), https://www.un.org/development/desa/newsletter/feature/2015/11/#18476. See generally Second Committee, Gen. Assembly of the
United Nations (Oct. 19, 2015) http://www.un.org/en/ga/second/index.shtml
(indicating that the Second Committee is the Economic and Financial Committee, and it is tasked with issues relating to economic growth and development,
such as macroeconomic policy questions, financing for development, sustainable development, human settlements, poverty eradication, globalization and
interdependence, operational activities for development, and information and
communication technologies for development).
53 DESA News, supra note 52.
54 Joost Pauwelyn, Preface to Conflicts of Norms in Public International
Law: How WTO Law Relates to Other Rules of International Law, at xi
(2003).
55 Id.
56 Id.
57 See Ronald Dworkin, Introduction to Taking Rights Seriously, at xi (Harvard University Press, 1977).
58 See generally Alfred Verdross, Jus Dispositivum and Jus Cogens in International Law, 61 Am, J. Int’l L. 55, 55-56, 58 (providing the typical characteristics of jus cogens).
59 See Jose E. Alvarez, International Organizations as Law-Makers,
(Oxford University Press 2005) (noting that it is unclear to what extent the
hierarchy in Art. 38 of the International Court of Justice Statute can resolve the
creative legislative methods that today’s international law witnesses, including
international organizations’ law-making roles).
60 Howse, supra note 36, at 249.
61 See id. (citing Int’l L. Comm. Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,
¶ 37, U.N. Doc. No. A/CN.4/L.682 (Apr. 13, 2006).
Sustainable Development Law & Policy
62 See
Pauwelyn, supra note 54, at 9-10.
id.
64 See id. at 18-19.
65 See id. at 19-20.
66 See id.
67 See Id. at 488-90.
68 See id. at 489, 491.
69 Gregory C. Schaffer & Mark A. Pollack, Hard v. Soft Law: Alternatives,
Complements, and Antagonists in International Governance, 94 Minn. L. Rev.
706, 709 (2010).
70 See id. at 708-09.
71 See Azevêdo, supra note 23.
72 See id.
73 See Public Form 2015, WTO, https://www.wto.org/english/forums_e/
public_forum15_e/public_forum15_e.htm (last visited Apr. 17, 2016).
74 See Roberto Azevêdo, Director-General, World Trade Org., Speech at the
United Nations Headquarters (Sept. 25, 2015) (transcript available at https://
www.wto.org/english/news_e/news15_e/dgra_25sep15_e.htm).
75 Id.
76 Id.
77 Sustainable Development Goals, supra note 17.
78 Pauwelyn, supra note 54, at 491.
79 Id.
80 Id. at 490.
81 Id.
82 Id.
83 See VCLT, supra note 2, at art. 31(3.)(c).
84 See Pauwelyn, supra note 54, at 490.
85 See generally Henning Jessen, Trade and Development Law in Sustainable
Development in World Trade Law 77, at 84-86 (discussing how although
development is not recognized as a right by the industrial world, it is recognized
as soft law).
86 See id.
87 See Joel P. Trachtman, The Economic Structure of International Law
224 (Harvard University Press 2008).
88 See Howse, supra note 36, at 254 (discussing the different kinds of individuals in the WTO who oversee the implementation of s).
89 See id. at 255-56.
90 See id. at 250, 256.
91 See Jackson, supra note 41, at 254.
92 Members and Observers, WTO, available at https://www.wto.org/english/
thewto_e/whatis_e/tif_e/org6_e.htm (last visited Apr. 17, 2016); see also
Azevêdo, supra note 23.
93 Perhaps this could be illustrated by the different government procurement
concerns between the U.S. on the one hand, and the E.U. on the other, within the
context of the Transatlantic Trade and Investment Partnership Agreement negotiations. Where state sovereignty within the U.S. federal system could prove
problematic to these negotiations, while still drawing on the WTO Government
Procurement Agreement as amended in 2012.
94 See Brazil, Russia, India, and China –BRIC, Investopedia, available at
http://www.investopedia.com/terms/b/bric.asp (last visited Apr. 23, 2015)
(explaining BRIC members are Brazil, Russia, India, and China).
95 Richard Baldwin & Caroline Freund, Preferential Trade Agreements and
Multilateral Liberalization in Preferential Trade Agreement Policies for
Development: A Handbook 123, 134-37 (Jean-Pierre & Jean-Christophe Mau
eds. World Bank, 2011) (highlighting that there has been literature on the issue
of the proliferation of preferential trade agreements in comparison with the
multilateral trading system approaching it from different angles. Paul Krugman
looked into the rational choice and prisoner’s dilemma aspect pushing states to
opt for a regionalism or bilateralism. While others like Richard Baldwin and
Caroline Freund discuss whether empirical research could explain if and how
one option is better than the other.).
96 World Investment Report 2015, UNCTAD, available at http://www.worldinvestmentreport.org/wir2015/wir2015-ch3-investment-policy-trends/ (last visited
Apr. 28, 2016).
97 See id. at 106.
98 See id.
99 See id. at 107
100 See id. at 112.
101 See id. at 108.
102 See id. at 112.
103 See id. at 108.
63 See
Spring 2016
104 See
Model Agreements, Investment Policy Hub, UNCTAD, available at
http://investmentpolicyhub.unctad.org/IIA/AdvancedSearchIRIResults (last
visited Apr. 28, 2016) [hereinafter Model Agreements] (providing an example
of the Preambles of the Norway Model BIT (2015), Austria Model BIT (2010),
and Canada Model BIT (2004) and article 11 thereof).
105 See id.
106 See Norway Data, World Bank, available at http://data.worldbank.org/
country/norway (last visited Apr. 28, 2016).
107 See Model Agreements, supra note 104 (highlighting the preamble of the
Norway Model BIT 2015).
108 See id.
109 Id.
110 See id. (quoting the Norway Model BIT 2015 art. 11/1).
111 See id. (quoting the Norway Model BIT 2015 art. 12).
112 See id.
113 See id. (quoting Preamble of the Norway Model BIT 2015).
114 UNCTAD, 2012 U.S. Model Bilateral Investment Treaty (2012) [hereinafter
Model Bilateral Investment Treaty], available at http://investmentpolicyhub.
unctad.org/Download/TreatyFile/2870 (last visited Apr. 28, 2016).
115 See id. (noting Art. 1 of the U.S. Model BIT 2012 provides a definition of
the term “investment”, and provides a list that may fall under that scope).
116 Salini Costruttori S.p.A. & Italstrade S.p.A.. v. Kingdom of Morocco,
ICSID Case No. ARB/00/4, Decision on Jurisdiction, 52 (2003), 42 ILM 609
(2003).
117 Id. at 57.
118 See Model Bilateral Investment Treaty, supra note 114 (“Agreeing that a
stable framework for investment will maximize effective utilization of economic
resources and improve living standards . . . Recognizing the importance of
providing effective means of asserting claims and enforcing rights with respect
to investment under national law as well as through international arbitration . . .
Desiring to achieve these objectives in a manner consistent with the protection
of health, safety, and the environment, and the promotion of internationally
recognized labor rights.”).
119 UNCTAD, Southern African Development Community (SADC) Model
Bilateral Investment Treaty Model Template with Commentary (2012) [hereinafter “SADC Model BIT”], available at http://investmentpolicyhub.unctad.org/
IIA/AdvancedSearchIRIResults (last visited April 28, 2016).
120 See Model Agreements, supra note 104 (concerning the previously mentioned Preambles of the Norway Model BIT, Austria Model BIT, and Canada
Model BIT).
121 See SADC Model BIT, supra note 119, at art. 13.1; see also Sustainability
at IFC, Int’l Fin. Corp., available at http://www.ifc.org/wps/wcm/connect/topics (last visited Apr. 19, 2016).
122 See Model Agreements, supra note 104 (noting the closing sentence of the
Norway Model BIT 2015).
123 SADC Model BIT, supra note 119, at art. 13.4
124 See id. at art. 21.3
125 See id. (referencing Commentary on art. 21 of the SADC Model BIT).
126 Sustainable Development Goals, supra note 17.
127 See generally Pablo de Greiff, Transitional Justice and Development in
Transitional Justice and Development: Making Connections (Pablo de Greiff
and Roger Duthie eds., 2009).
128 See UNCTAD, Eurasian Economic Union-Vietnam FTA Model Agreement
(2012) [hereinafter EEU-Vietnam FTA], available at http://investmentpolicyhub.unctad.org/IIA/AdvancedSearchIRIResults (last visited Nov. 4, 2015); see
also UNCTAD, GCC-EFTA FTA-Kuwait: Other IIAs, Inv. Policy Hub, (2009)
available at http://investmentpolicyhub.unctad.org/IIA/CountryOtherIias/112#
iiaInnerMenu (last visited Apr. 28, 2015) (noting the term sustainable development was also mentioned within the context of the Preamble of the GCC-EFTA
FTA, between the member states of the Gulf Cooperation Council and the European Free Trade Association –composed of the Republic of Iceland, the Principality of Liechtenstein, the Kingdom of Norway and the Swiss Confederation).
129 EEU-Vietnam FTA, supra note 128, at art. 12.1
130 See id. at art. 12.3-12.4
131 See id. at art. 12.5-12.6, 12.8.
132 See generally Office of the U.S. Trade Representative, TPP Full Text
[hereinafter “TPP Agreement”], available at https://ustr.gov/trade-agreements/
free-trade-agreements/trans-pacific-partnership/TPP-Full-Text (last visited Apr.
19, 2016) (noting the preamble of the TPP).
133 Id.
134 See generally id. at 230-35.
135 Id at 230.
39
136 See
159 Id.
137 Id.
160 Id.
generally id. at 201-26.
at 233.
138 See id. at 203.
139 See id.
140 See id. at 209-10
141 See id at 251.
142 Id. at 254. (noting that other chapters of the TPP would supersede the
Regulatory Coherence Chapter in case of inconsistency, and there is no recourse
to the Agreement’s dispute settlement mechanism for matters arising from later
in this chapter).
143 Id.
144 EEU-Vietnam FTA, supra note 128, at 1; SADC Model BIT, supra
note 119, at 5; Australian Gov. Dep’t of Foreign Aff. and Trade, Free Trade
Agreement Between the Government of Australia and the Government of the
People’s Republic of China, , http://dfat.gov.au/trade/agreements/chafta/officialdocuments/Documents/chafta-agreement-text.pdf [hereinafter ChAFTA].
145 See TPP Agreement, supra note 132, at 1 (noting other chapters of the TPP
would supersede the Regulatory Coherence Chapter in case of inconsistency,
and there is no recourse to the Agreement’s dispute settlement mechanism for
matters arising from this latter Chapter.)
146 See Alice Tipping & Robert Wolfe, Trade and Sustainable Development:
Options for Follow-up and Review of the Trade-related Elements of the Post2015 Agenda and Financing for Development i, (Int’l Inst. for Sustainable Dev.,
Working Draft, 2015), http://www.iisd.org/sites/default/files/publications/tradesustainable-development-options-post-2015-agenda.pdf
147 See EEU-Vietnam FTA, supra note 128, (highlighting the preamble); see
ChAFTA, supra note 144 (noting the preamble); see SADC Model BIT, supra
note 119 (noting the preamble).
148 TPP Agreement, supra note 132, at 1.
149 See Tipping, supra note 146.
150 See Joost Pauwelyn, Rule-based Trade 2.0: The Rise of Informal Rules and
International Standards and How they may Outcompete WTO Treaties, 14 J.
Int’l Econ. L. 1, 1-2 (2014).
151 See id. (describing this as moving away from “thin state consent” to a
“thick stakeholder consensus.”).
152 Niels Peterson, How Rational is International Law?, 20 Eur. J. Int’l L.
1247, 1254-55 (2008).
153 John Jackson, Perils of Globalization and the World Trading System, 24
Fordham Int’l L. J. 371, 375 (2000).
154 Id.
155 Id.
156 See id. at 376 (explaining civil society perhaps alerted the international
community on how their interests may not always be aligned with those of their
governments. And as such, they demand a more direct way to participate in
more flexible policies where they can pressure their governments in fulfilling in
a certain manner).
157 Id.
158 World Trade Organization, Development: Trade and Development Committee: Special and Differential Treatment Provisions, https://www.wto.org/english/
tratop_e/devel_e/dev_special_differential_provisions_e.htm (last visited Apr.
19, 2016).
161 Id.
162 See
Benedict Kingsbury, Nico Kirsch, & Richard Stewart, The Emergence
of Global Administrative Law, 68 L. & Contemp. Probs. 15, 58 (2005).
163 Agreement on Technical Barriers to Trade, Uruguay Round of Trade
Negotiations 1994, WTO, available at https://www.wto.org/english/docs_e/
legal_e/17-tbt_e.htm (last visited Apr. 28, 2016).
164 World Trade Organization, Technical Barriers to Trade, https://www.wto.
org/english/tratop_e/tbt_e/tbt_e.htm (last visited Apr. 28, 2016).
165 Id.
166 See WTO Committee on Technical Barriers to Trade, Decisions and Recommendations Adopted by the WTO Committee on Technical Barriers to Trade
Since 1 of January 1995: Note by the Secretariat, WTO Doc. G/TBT/1/Rev.12
(Jan. 21, 2015) [hereinafter TBT Committee Decisions & Recommendations];
see also WTO Committee on Technical Barriers to Trade, Annex 2 to TBT Committee Decisions & Recommendations, WTO Doc. G/TBT/1/Rev.12 (Jan. 21,
2015).
167 See id.
168 See id.
169 See TBT Committee Decisions & Recommendations, supra note 166.
170 Pauwelyn, supra note 150, at 15-18.
171 See id.
172 See Tipping, supra note 146, at 7.
173 Id. at 14-19.
174 Id. at 9-14.
175 Id. at 9-10.
176 See id. at 10.
177 See id. at 10-11.
178 See id. at 11.
179 See id. at 11-12.
180 See id. at 12-13.
181 The UN System Task Team, UN Dev. Policy & Analysis Div, http://www.
un.org/en/development/desa/policy/untaskteam_undf/index.shtml (last visited
Apr. 28, 2016).
182 See id.
183 See id.
184 Andrew T. Guzman, How International Law Works: A Rational Choice
Theory 162 Oxford University Press (2008) (explaining the state circumstantial
alteration towards broad based treaties for instance, which drags on a number
of different topics –what he called “complex treaty mechanisms.” The reasons
included, 1) Effectiveness that comes with interrelated topics under one regime.
2) Compensating over different issues with diverse interests. 3) And using existing infrastructure by economies of scope).
185 John Jackson, Perspectives on Regionalism in Trade Relations, 27 Law &
Pol’y Int’l Bus. 873, 873 (1996).
186 See Sustainable Development Goals, supra note 17 (demonstrating the
topics range from issues connected to employment, forced labor, tourism, and
strong banking institutions. These targets are soft, and they serve soft goals.
This is susceptible to debates on how much “teeth” they have).
Endnotes: A North-South Struggle: Political and Economic Obstacles to Sustainable Development
continued from page 25
2 See
Gary C. Bryner, From Promises to Performance: Achieving Global
Environmental Goals 260-61 (1997) (inferring that due to developed nations
not imposing controls to prevent pollution, developing countries are being
treated unjustly when developed nations prevent developing nations from trying
to develop).
3 See id. at 261.
4 President Barack Obama, Remarks by the President on Climate Change
(June 25, 2013) (transcript available at https://www.whitehouse.gov/the-pressoffice/2013/06/25/remarks-president-climate-change) [hereinafter “Obama
Remarks on Climate Change”].
5 See Black, supra note 1, at 96 (stating “the lack of willingness from the
North, particularly the US, to regulate its own energy consumption, does little
to encourage Southern governments to take resource conservation seriously.”).
40
6 Bryner, supra note 2,
7 Naomi
at 261.
Klein, This Changes Everything: Capitalism vs. The Climate 409
(2014).
8 See Black, supra note 1, at 93.
9 See Maggie Black, No Nonsense International Development: Illusions
and Realities 105 (3d. ed. 2015) (“Blocks on resource use would fix the world
in permanent inequality between haves and have nots.”).
10 See Peter Ørebech & Fred Bosselman, The Linkage between Sustainable
Development and Customary Law, in The Role of Customary Law in Sustainable Development 13 (2005). See generally Friedrich Soltau, Fairness in
International Climate Change Law and Policy 7-8 (2009) (providing an
overview of the critiques developing countries have of developed countries).
Sustainable Development Law & Policy
11 See
Black, supra note 1, at 96; see also, Black, supra note 9, at 104 (“If
all the world’s people were to live like North Americans, a planet four times as
large would be needed.”).
12 See Marie-Claire Cordonie Segger & Ashfaq Khalfan, Sustainable
Development Law: Principles, Practices, and Prospects 47 (2011); Sustainable Justice: Reconciling Economic, Social and Environmental Law 1-3
(Marie-Claire Cordonier Segger & Judge C.G. Weeramantry eds., 2005).
13 See generally id., at 1-3 (providing a discussion of how sustainable development is dependent on a coexisting and balanced economy and environment).
14 See id. at 47.
15 Id. at 1-3.
16 Report of the World Commission on Environment and Development,
March 1987, Our Common Future, U.N. Doc. A/42/427 (March 1987) [hereinafter “Brundtland Report”].
17 See Philippe Sands, Principles of International Environmental Law 10
(2d ed. 2003).
18 See Lakshman Guruswamy & Brent Hendricks, International Environmental Law in a Nutshell 11 (1997). The “despairing thesis” is well illustrated
by two notorious neo-Malthusian works from the 1970s. See generally Donella
H. Meadows et al., The Limits to Growth: A Report for the Club of Rome’s
Project on the Predicament of Mankind (1973); see generally Paul R.
Ehrlich, The Population Bomb (1971).
19 See Brundtland Report, supra note 16, at 41. This concept, called “intergenerational equity,” is Principle 3 of the Rio Declaration. See United Nations
Conference on Environment and Development, Rio de Janeiro, Braz., June
3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/
CONF.151/26/Rev. 1, 31 I.L.M. 874 (1992).
20 See Brundtland Report, supra note 16, at 41
21 See David Hunter et al., International Environmental Law and Policy
181 (2d ed. 2002) (indicating that “substainable development requires meeting
the basic needs of all and extending to all the opportunity to satisfy their aspirations for a better life.”) (emphasis added).
22 See Sands, supra note 17, at 11 (noting five objectives to promote sustainable development).
23 See generally Rio Declaration, supra note 19. See generally Patricia Birnie
& Alan Boyle, International Law and the Environment 43 (2nd rev. ed.
2002) (discussing the use of the UNEP’s General Council to encourage nations
to come together to brain storm ways to improve the “world environment
situation.”).
24 See section V.C infra.
25 Report of the World Summit on Social Development, Copenhagen, Den.,
March 6-12, 1995, Copenhagen Declaration, U.N. Doc. A/CONF.166/7/ ¶ 6
(1996).
26 Id. at ¶ 6.
27 Gabčíkovo-Nagymaros Project (Hung. v. Slovak.), 1997 I.C.J. 7, 88, 93
(Sept. 25) (separate opinion of Judge Weeramantry); see also Virginie Barral,
Sustainable Development in International Law: Nature and Operation of an
Evolutive Legal Norm, 23 Eur. J. Intl. L. 377, 384 (2012) (noting there are references to sustainable development “in over 300 [bilateral]” and 112 multilateral treaties and concluding that sustainable development has widely penetrated
treaty law).
28 M. Lucien Royer, Trade Unions and Environmentally Sustainable Development, in Working Party on Environmental Performance Preparation of
Second Cycle of OECD Environmental Performance, Paris, Fr., Sept. 22-24,
1999, OECD Seminar, Social and Environmental Interface Proceedings, ENV/
EPOC/GEP (99) 13, 1, 169 (September 22-24, 1999).
29 International Union for Conservation of Nature-World Conservation
Union, Guide to Preparing and Implementing National Sustainable Development Strategies and Other Multi-sectoral Environment and Development
Strategies, prepared by the IUCN’s Commission on Environmental Strategies
Working Group on Strategies for Sustainability, the IUCN Secretariat and the
Environmental Planning Group of the International Institute for Environment
and Development, pre-publication draft, 1993.
30 See United Nations Conference on Environment and Development, Rio de
Janeiro, Braz., June 3-14, 1992, Agenda 21, U.N. Doc. A/CONF.151/26 [hereinafter “Agenda 21”].
31 See generally id.
32 Rio Declaration, supra note 19, at Principle 3.
33 Agenda 21, supra note 30. The UN General Assembly endorsed the Rio
Declaration and Agenda 21 and called for implementation of their commitments
and recommendations. Rep. of the U.N. Conference on Env’t & Dev. Dec. 22,
Spring 2016
1992, U.N. Doc. A/RES/47/19;,G.A. Res. 47/191, ¶ 2, U.N. GAOR, 47th Sess.,
U.N. Doc. A/RES/47/191 (Jan. 29, 1993).
34 See Agenda 21, supra note 30.
35 See Birnie & Boyle, supra note 23, at 85.
36 See Scott Wisor, The Impending Failure of the Sustainable Development
Goals, Ethics & Int’l Affairs (Sept. 30, 2014), http://www.ethicsandinternationalaffairs.org/2014/the-impending-failure-of-the-sustainable-developmentgoals/; Kofi Annan & Nader Mousavizadeh, Interventions: A Life in War
and Peace 222-225 (2012) (providing an overview of how various international
meetings for the UN developed the agenda that exists).
37 See United Nations Millennium Declaration, G.A Res. 55/2, U.N. Doc. A/
res/55/2 (Sept. 20, 2000).
38 Id. at ¶ 15, 23.
39 See generally Millennium Dev. Goals & Beyond 2015, United Nations,
http://www.un.org/millenniumgoals/ (noting that there are eight total millennium goals in addition to news and background on the goals) (last visited Apr.
14, 2016); see generally Annan, supra note 36, at 226-50 (describing MDG’s
according to Kofi Annan’s time at the United Nations).
40 Michael W. Doyle & Joseph E. Stiglitz, Eliminating Extreme Inequality: A Sustainable Development Goal, 2015-2030, Ethics & Int’l Affairs
(Mar. 20, 2014), http://www.ethicsandinternationalaffairs.org/2014/
eliminating-extreme-inequality-a-sustainable-development-goal-2015-2030/.
41 See Wisor, supra note 36.
42 See generally Millennium Dev. Goals & Beyond 2015, supra note 39
(addressing the following matters relating to sustainable development: education, gender equality, child mortality, maternal health, combatting malaria,
AIDS, and other infectious diseases, debt relief, and, most importantly, elimination of “extreme” hunger and poverty).
43 Doyle & Stiglitz, supra note 40; see also Annan & Mousavizadeh, supra
note 36, at 248.
44 See The U.N.’s Post-2015 Development Agenda, U.N. Ass’n of the U.S.,
http://www.unausa.org/advocacy/post-2015-development-agenda (last visited
Apr. 14, 2016).
45 See id.
46 See John H. Knox, Human Rights, Environmental Protection, and the
Sustainable Development Goals, 24 Wa. Int’l L. J. 517, 518 (2015).
47 See Open Working Group Proposal for Sustainable Development Goals,
U.N. Dep’t of Econ. & Soc. Affairs (July 19, 2014), https://sustainabledevelopment.un.org/focussdgs.html [hereinafter “Sustainable Development Goals”].
48 See Millennium Dev. Goals & Beyond 2015, supra note 39 (noting that the
MDG goal of eradicating world poverty remains Goal 1 under the SDGs); Sustainable Development Goals, supra note 47 (SDG 1). Guaranteed education is
MDG 2 and SDG 4. See Millennium Dev. Goals & Beyond 2015, supra note 39
(MDG 2); Sustainable Development Goals, supra note 47 (SDG 4). Ensuring
gender equality is MDG 3 and SDG 5. See Millennium Dev. Goals & Beyond
2015, supra note 39 (MDG 3); Sustainable Development Goals, supra note 47
(SDG 5). A global partnership for development is MDG 8 and SDG 17. See
Millennium Dev. Goals & Beyond 2015, supra note 39 (MDG 8); Sustainable
Development Goals, supra note 47 (SDG 17). MDG 5, guaranteeing maternal
health, has been expanded in SDG 3 to encompass health assurance for everyone: men, women, and children. See Millennium Dev. Goals & Beyond 2015,
supra note 39 (MDG 5); Sustainable Development Goals, supra note 47 (SDG
3).
49 Thus, Millennium Goal 7 (“Ensure Environmental Sustainability”) is
spread among six Sustainable Development Goals, to wit: SDG 2 (sustainable
agriculture), 6 (clean water and sanitation), 7 (cheap sustainable energy for all),
8 (sustainable economic growth), 9 (infrastructure and sustainable industrialization), 11 (sustainable cities and settlements). Commitment to addressing climate
change has been made an express SDG: Goal 13. See MILLENNIUM DEVELOPMENT GOALS, supra note 39 (MDG 7); SUSTAINABLE DEVELOPMENT GOALS, supra note 47 (SDGs 2, 6, 7, 8, 9, and 11). The only brand new
goal the SDGs add is a commitment to fighting inequality. See SUSTAINABLE
DEVELOPMENT GOALS, supra note 47 (SDG 10).
50 See Donald Brown, American Heat: Ethical Problems with the United
States’ Response to Global Warming xv-xix, 13, 19 (2002).
51 Id. at 16, 18.
52 Id. at 16.
53 Id. at 15-16 (citing Global Energy Future and the Carbon Dioxide Problem,, U.S. Council on Envtl. Quality (1981)).
54 Id. at 16. (noting that Reagan also removed the solar panels which President Carter had installed on the roof of the White House).
41
55 For
an early retrospective on the Reagan environmental record, see Philip
Shabecoff, Reagan and Environment: To Many, A Stalemate, N.Y. Times (Jan.
2, 1989), http://www.nytimes.com/1989/01/02/us/reagan-and-environmentto-many-a-stalemate.html?pagewanted=1 (indicating that “[c]ritics also complain of the Administration’s persistent demand for scientific certainty before
acting on problems like acid rain and global warming.”).
56 See Report of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, April 30, 1992 – May 9, 1992, U.N.
Framework Convention on Climate Change, U.N. Doc. A:AC.237/18 (1992)
[hereinafter “FCCC”]. The Framework Convention on Climate Change was
signed by President George Herbert Walker Bush on October 15, 1992. It was
ratified by the U.S. Senate on March 21, 1994. art. 4(2)(a), (b).
57 See Brown, supra note 50, at 20, 23.
58 Id. at 22.
59 Id. at 23.
60 Id. at 24.
61 Id. at 25.
62 Id. at 27 (noting that the Republican Party had taken control of Congress
following the 1994 mid-term elections).
63 Id. at 28.
64 Id. at 29.
65 See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22
(1998) [hereinafter “Kyoto Protocol”].
66 “Common but differentiated responsibilities” is a core concept in sustainable development. The phrase was inserted into the Rio Declaration at the
behest of the IBSA states: India, Brazil, and South Africa. See Vijay Prashad,
The Poorer Nations: A Possible History of the Global South 191-92 (2012).
“Common but differentiated responsibilities” means that all countries must take
action to halt climate change, but not necessarily the same action or to the same
extent. The developed states bear the bulk of the responsibility for reducing
carbon emissions. The developing states bear the bulk of the responsibility for
arresting population growth.
67 See Brown, supra note 50, at 186.
68 The FCCC includes three “flexibility mechanisms.” They are explained by
Donald Brown, thusly “Emissions trading. An international trading mechanism
that would allow developed nations with Kyoto targets to purchase emissions
allowances from developed countries that have more permits than they need
[Kyoto Protocol art. 17]. Joint Implementation. An international trading
mechanism that allows developed nations with emissions targets to obtain credit
toward the target by funding emission reduction projects [such as planting
forests] in other developed nations that have targets [Kyoto Protocol art. 6].”
See Brown, supra note 48, at 187. The third flexibility mechanism, “the Clean
Development Mechanism,” is the same as Joint Implementation except that it
covers emissions reduction projects in developing countries (Kyoto Protocol
art. 12). See Laurence Boisson de Chazournes, Kyoto Protocol to the United
Nations Framework Convention on Climate Change 2, available at http://
legal.un.org/avl/ha/kpccc/kpccc.html (highlighting that parties to the Kyoto Protocol may “achieve compliance through climate friendly investments in other
countries and through emission trading.”). Norway proposed Joint Implementation, and Brazil proposed the clean development mechanism. See Brown, supra
note 50, at 187.
69 See Quinn Schiermeier, The Kyoto Protocol: Hot Air, Nature (Nov. 28,
2012), http://www.nature.com/news/the-kyoto-protocol-hot-air-1.11882; see
also Brown, supra note 50, at 186.
70 See Timothy Donaghy et al., Atmosphere of Pressure: Political Interference in Federal Climate Science 7 (Feb. 2007), available at http://www.
ucsusa.org/sites/default/files/legacy/assets/documents/scientific_integrity/
atmosphere-of-pressure.pdf.
71 See Armin Rosencranz, U.S. Climate Change Policy under G. W. Bush, 32
Golden Gate U. L. Rev. 479, 482 (2002).
72 See Section V infra.
73 See James Mann, George W. Bush 48, 55 (2015); Maurice Strong, Facing
Down Armageddon: Our Environment at a Crossroads, 26.2 World Pol’y J. 25,
26 (2009). During his 2000 Presidential campaign Bush promised that he would
institute mandatory limits on CO2 emissions from fossil fuel-burning power
plants—a promise he would soon break. See Robert S. Devine, Bush Versus
the Environment 174-75, 204 (2004).
74 See Katherine Q. Seelye & Andrew C. Revkin, Panel Tells Bush Global
Warming Is Getting Worse, N.Y. Times (June 7, 2001), http://www.nytimes.
com/2001/06/07/science/07WARM.html?pagewanted=all; see also Katherine Q.
42
Seelye, President Distances Himself from Global Warming Report, N.Y. TIMES
(June 5, 2002), http://www.nytimes.com/2002/06/05/us/president-distanceshimself-from-global-warming-report.html (noting that a similar report from the
EPA the next year also met with Bush Administration indifference).
75 See Jane Mayer, Dark Money: The Hidden History of the Billionaires
Behind the Rise of the Radical Right 212 (2016) (“The George W. Bush years,
meanwhile, proved a bonanza for the fossil fuel industry.”); Suraje Dessai, The
Climate Regime from The Hague to Marakech: Saving Or Sinking the Kyoto
Protocol 5 (Tyndal Centre for Climate Change Research Working Paper No. 12,
2001), available at http://tyndall.ac.uk/sites/default/files/wp12.pdf.
76 See Mayer, supra note 75, at 204 (noting that the conservative party
was off-put in assisting with environmentally necessary tactics to reduce
global warming); see also Emily Atkin, Jeb Bush and George W. Bush Have
Drastically Different Views on Climate Change, ThinkProgress (May 22,
2015, 12:19 P.M.), http://thinkprogress.org/climate/2015/05/22/3661732/
jeb-vs-george-bush-climate-change/.
77 See Juliet Eilperin, Bush Seeks Voluntary Curb on Greenhouse Gas Emissions, Wash. Post (Apr. 17, 2008), http://www.washingtonpost.com/wp-dyn/
content/story/2008/04/17/ST2008041700037.html.
78 George W. Bush, Bush Remarks on Climate, Apr. 16, 2008 (transcript available at http://www.washingtonpost.com/wp-dyn/content/article/2008/04/16/
AR2008041603084.html). Section V infra of this article discusses the George
W. Bush Administration’s faulty understanding of intragenerational equity
expressed in the Administration’s refusal to reduce its own carbon emissions
unless China and India did so to the same degree.
79 See generally Chris Williams, Ecology and Socialism 80 (2010).
80 See John M. Broder, Obama Affirms Climate Change Goals, N.Y. Times
(Nov. 18, 2008), http://www.nytimes.com/2008/11/19/us/politics/19climate.
html.
81 Klein, supra note 7, at 12.
82 Id.
83 See Stephen Lacey, As Global CO2 Emissions Rise, Scientists Warn
2-Degree Target Is Nearly Out of Reach: ‘We Need a Radical Plan’, ThinkProgress (Dec. 3, 2012), http://thinkprogress.org/climate/2012/12/03/1270911/
as-global-co2-emissions-rise-scientists-warn-2-degree-target-is-nearly-out-ofreach-we-need-a-radical-plan/.
84 See Johann Hari, After the Catastrophe in Copenhagen, It’s Up to Us,
Indep., http://www.independent.co.uk/voices/commentators/johann-hari/johannhari-after-the-catastrophe-in-copenhagen-its-up-to-us-1846366.html (Dec.
21, 2009) (“The world’s climate scientists have shown that man-made global
warming must not exceed 2C. When you hear this, a natural reaction is – that’s
not much; how bad can it be if we overshoot? If I go out for a picnic and the
temperature rises or falls by 2C, I don’t much notice. But this is the wrong analogy. If your body temperature rises by 2C, you become feverish and feeble. If
it doesn’t go back down again, you die. The climate isn’t like a picnic; it’s more
like your body.”).
85 See Fram Dinshaw, Two-Degree Target May Still Cause Catastrophic Sea
Level Rise, Hames Hansen Warns, Nat’l Observer (July 20, 2015), http://www.
nationalobserver.com/2015/07/20/news/two-degree-target-may-still-causecatastrophic-sea-level-rise-james-hansen-warns.
86 See Justin Gillis, 2015 Was Hottest Year in Historical Record, Scientists
Say, N.Y. Times (Jan. 21, 2016), http://www.nytimes.com/2016/01/21/science/
earth/2015-hottest-year-global-warming.html.
87 See John Vidal et al., Low Targets, Goals Dropped: Copenhagen Ends
in Failure, Guardian (Dec. 18, 2009), http://www.theguardian.com/environment/2009/dec/18/copenhagen-deal; see also Bill McKibben, Things Fall Apart
and an Uncertain Future Looms, Yale Env’t 360 (Dec. 21, 2009), http://e360.
yale.edu/feature/copenhagen_things_fall_apart_and_an_uncertain_future_
looms/2225/ (noting that some regions will experience higher temperature
increases than the world average).
88 See McKibben, supra note 87.
89 See generally id (providing a discussion of the events leading up to and
after Copehagen).
90 See Michael Levi, The Obama-China Climate Deal Can’t Save the World.
So What?, The Wash. Post (Nov. 21, 2014), https://www.washingtonpost.com/
posteverything/wp/2014/11/21/the-obama-china-climate-deal-cant-save-theworld-so-what/. Note that the United States had moved the goalposts since
Kyoto. See Williams, supra note 79, at 81. At Kyoto, the United States agreed
to reduce emissions 7 per cent below 1990 levels by 2008-2012. Id. at 108. But
in 2009 at Copenhagen, the United States moved the baseline year for measuring from 1990 to 2005. Id. at 81. Carbon had, of course, continued to build up
Sustainable Development Law & Policy
in earth’s atmosphere during those fifteen years. So measuring from 1990, the
US pledge at Copenhagen actually only amounted to a 4% reduction in US
emissions—not 7%. Id.
91 See Williams, supra note 79, at 81.
92 See id. at 82-83.
93 See id.
94 See Putting a Price on Carbon: An Emissions Cap or a Tax?,
Yale Env’t 360 (May 7, 2009), http://e360.yale.edu/feature/
putting_a_price_on_carbon_an_emissions_cap_or_a_tax/2148/.
95 See Williams, supra note 65, at 81.
96 See Stephen Power, Senate Halts Effort to Cap CO2 Emissions, Wall St.
J., (last updated July 23, 2010), http://www.wsj.com/articles/SB1000142405274
8703467304575383373600358634.
97 Cf. Williams, supra note 79, at 83-84 (discussing the failure of cap and
trade in Europe due to corporate cheating and the excessive issuance of carbon
credits).
98 Id. at 21.
99 Id.
100 See Obama Remarks on Climate Change, supra note 4.
101 Id. (emphasizing that there are no federal limits to the amount of carbon
pollution that [power] plants can pump into our air, currently 40 percent of
America’s carbon pollution); see Coral Davenport, McConnell Urges States
to Help Thwart Obama’s ‘War on Coal,‘ N.Y. Times (Mar. 20, 2015) (calling
carbon pollution from coal-fired power plants “the nation’s largest source of
greenhouse gas emissions.”).
102 See Obama Remarks on Climate Change, supra note 4 (highlighting “a
low-carbon clean energy economy can be an engine of growth for decades to
come” and that there is no “contradiction between a sound environment and
strong economic growth.”).
103 West Virginia v. EPA, 362 F.3d 861, 873 (D.C. Cir. 2004) (noting that the
United States District Court for the District of Columbia denied the State of
West Virginia’s argument on the basis that the EPA was not given an opportunity to provide feedback to the NODA docket).
104 In re Murray Energy Corp. v. EPA, 788 F.3d 330, 336 (D.C. Cir. 2015)
(deciding that because the EPA’s proposed rule was not final, it did not have an
immediate effect on Murray Energy Corp. and the State of West Virginia).
105 See Levi, supra note 90.
106 David Nakamura & Steven Mufson, China, U.S. agree to limit greenhouse
gases, Wash. Post (Nov. 12, 2014), https://www.washingtonpost.com/business/
economy/china-us-agree-to-limit-greenhouse-gases/2014/11/11/9c76850469e6-11e4-9fb4-a622dae742a2_story.html.
107 See Roger Bybee, Scapegoating China: Framing China as an Environmental Villain Only Serves to Excuse American Inaction, JacobinMag (Mar.
27, 2015), https://www.jacobinmag.com/2015/03/china-united-states-climatechange-agreement/; see Klein, supra note 7, at 69, 81 (discussing how China’s
manufacturing exports during the 1990s created significant amounts of pollution globally in doing so).
108 See Bybee, supra note 107.
109 See Klein, supra note 7, at 69-70, 81.
110 Professor Kirk Junker observes that a mechanism already exists for resolving the problem of vicarious polluting. The Pennsylvania Air Pollution Control
Act imposes penalties on both owners and operators of pollution sources. 35
P.S. §§4001-4015. Were a similar plan to be instituted at the global level, the
United States and China could both be penalized for carbon emissions from US
plants operating in China. Professor Junker urged that this mechanism be part
of whatever agreement was reached at the Paris Climate Summit in December
2015. Professor Kirk Junker in a private communication to the authors, June 19,
2015 (on file with authors).
111 See Nakamura & Mufson, supra note 106.
112 Bybee, supra note 107.
113 Id.
114 See Levi, supra note 90.
115 The Paris Summit was formally known as the 21st Conference of the
Parties to the UN Framework Convention on Climate Change (“COP 21”). See
Justin Worland, Why the Paris Summit Is All About the Money, Time (Dec. 7,
2015), http://time.com/4138150/finance-paris-climate-conference/ (providing a
broad overview of the goals of COP 21).
116 See Brian Palmer, INDC: The Acronym Standing between Us and Disaster,
Natural Res. Def. Council (Oct. 29, 2015), https://www.nrdc.org/onearth/
indc-acronym-standing-between-us-and-disaster; Tim Profeta, The Climate
Post: United States, Europe Announce Emissions Reductions Pledges,
Spring 2016
Huffington Post, http://www.huffingtonpost.com/tim-profeta/the-climate-postunited-s_b_6995244.html (last updated June 2, 2015); see also INDCs as communicated by Parties, UN Framework Convention on Climate Change, www4.
unfccc.int/submissions/INDC/Submission%20Pages/submissions.aspx (last
visited Apr. 23, 2016) (listing the INDCs submitted by the nations participating
in COP 21).
117 See United States, UN Framework Convention on Climate Change, http://
www4.unfccc.int/submissions/INDC/Published%20Documents/United%20
States%20of%20America/1/U.S.%20Cover%20Note%20INDC%20and%20
Accompanying%20Information.pdf (last visited Apr. 23, 2016).
118 See supra notes 69-72 and accompanying text.
119 See Brad Plumer, The Paris Climate Talks Won’t Solve Global Warming.
Here’s What They’ll Do Instead, Vox (Nov. 30, 2015, 2:00 PM), http://www.vox.
com/2015/11/30/9818582/paris-cop21-climate-talks.
120 See generally Paris Climate Change Conference–Nov. 2015, COP 21, Nov.
30, 2015–Dec. 11, 2015, Adoption of the Paris Agreement, Proposal by the
President, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015), available at
http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf [hereinafter “Paris
Accord”] (indicating that since it is not a treaty, the Paris Accord does not have
to go before the U.S. Senate). See Colleen McCain Nelson, GOP Weighs How to
Undercut Obama’s Climate Talks, Wall St. J. (Apr. 26, 2015, 7:03 PM) http://
www.wsj.com/articles/gop-weighs-how-to-undercut-obamas-climate-talks1430089435?mod=rss_Politics_And_Policy (noting that GOP Senators warn
that President Obama is not going to deliver on the promise that emissions
are cut because the agreement is not binding); Emily Atkin, Mitch McConnell
Undermines Obama’s Climate Plan with Other Countries, ThinkProgress, (Apr.
1, 2015, 10:49 PM), http://thinkprogress.org/climate/2015/04/01/3641594/
mcconnells-inner-tom-cotton/ (reporting that the Senate’s Republican majority had advised foreign leaders well in advance of COP21 that any binding
agreement would have to be ratified by the US Senate); John Bolton & John
Yoo, Paris Climate Conference: Without Congress’ Support, Obama’s Dealmaking Powers Are Limited, L.A. Times (Dec. 1, 2015, 5:00 AM), http://www.
latimes.com/opinion/op-ed/la-oe-boltonyoo-paris-climate-deal-not-binding20151201-story.html (emphasizing that the March 31 statement by Senate
Majority Leader Mitch McConnell, a Kentucky Republican, also told the world
that any climate agreement the US entered in Paris could be revoked with the
swipe of a pen by Obama’s successor).
121 See Oliver Milman, James Hansen, Father of Climate Change
Awareness, Calls Paris Talks ‘a Fraud,’ Guardian (Dec. 12, 2015,
7:30 AM), http://www.theguardian.com/environment/2015/dec/12/
james-hansen-climate-change-paris-talks-fraud.
122 See Philippe Sands, Environmental Protection in the Twenty-first Century:
Sustainable Development and International Law, in Environmental Law, The
Economy and Sustainable Development: the United States, the European
Union and the International Community 369, 369 (Richard L. Revesz,
Philippe Sands & Richard B. Stewart, eds., 2000).
123 Id. at 370.
124 Id.
125 The phrase “trade trumps environment” derives from Naomi Klein. See
Klein, supra note 3, at 69.
126 A tariff is “a tax on imports imposed…at…an international border.” See
Raj Bhala, Modern GATT Law: A Treatise on the General Agreement on
Tariffs and Trade 176 (2005).
127 See Mitsuo Matsushita et al., The World Trade Organization: Law,
Practice, and Policy 262 (3d ed. 2015); Bhala, supra note 126, at 342 (discussing in depth quotas).
128 See Bhala, supra note 126 at 344-45; Matsushita et al., supra note 127,
at 216-17.
129 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55
U.N.T.S. 188, Art. XX (prohibiting “disguised” restrictions on trade) [hereinafter “GATT”]; see Anupam Goyal, The WTO and Environmental Law:
Towards Conciliation 11 (2006) (discussing how developed countries reduced
environmental threats in their own countries, while abusing the environment of
developing countries); C. Ford Runge, Trade Protectionism and Environmental
Regulations, The New Nontariff Barriers, 11 Nw. J. Int’l L. & Bus. 47, 47
(1990); Thomas Waelde & Abba Kolo, Environmental Regulation, Investment
Protection and ‘Regulatory Taking’ in International Law, 50 Int’l L. & Comp.
L. Q. 811, 812 (2001) (arguing that developing countries’ concern for the natural environment are a “Trojan House” meant to foil globalization and economic
liberalization).
43
130 See
FCCC, supra note 56, art. 3.5 (providing inter alia “[m]easures taken
to combat climate change, including unilateral ones, should not constitute a
means of arbitrary or unjustifiable discrimination or a disguised restriction on
international trade.” This language applies not just to trade agreements, but
some climate treaties prohibit economic protectionism also.) See International
Law Association, New Delhi, India, Apr. 2-6, 2002, ILA New Delhi Declaration
of Principles of International Law Relating to Sustainable Development, ¶ 4.4
U.N. Doc. A/CONF.199/8 (Aug 9, 2002), available at http://cisdl.org/tribunals/
pdf/NewDelhiDeclaration.pdf (“[p]recautionary measures should be based on
up-to-date and independent scientific judgment and be transparent. They should
not result in economic protectionism.”).
131 See S.D. Myers, Inc. v. Canada, UNCITRAL Doc. No. 742416:01, Partial
Award, at 3 (Nov. 13, 2000) (explaining that Canada banned the export of
PCB waste although transporting it to a facility across the border in the United
States would have been geographically more convenient and would not have
occasioned additional safety hazards); Waelde & Kolo, supra note 129, at 836
n. 107, 838 (“the tribunal found manifest discrimination and protectionist
purpose”).
132 Lori Wallach, NAFTA on Steroids, The Nation (July 27, 2012), http://www.
thenation.com/article/nafta-steroids/.
133 See Trans Pacific Partnership Trade Deal Signed in Auckland, BBC (Feb. 4,
2016), http://www.bbc.com/news/business-35480600.
134 TPP Full Text, Office of the U.S. Trade Representative, available at
https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific-partnership/tpp-full-text [hereinafter “TPP Final Text”] (last visited Apr. 23, 2016).
135 See Wallach, supra note 132; Jana Kasperkevic, Obama Defends Controversial TPP Deal and dismisses Secrecy Concerns, Guardian (Oct. 10, 2015,
11:29 PM), http://www.theguardian.com/business/2015/oct/10/obama-defendstpp-deal-dismisses-secrecy-concerns; Eric Bradner, How Secretive Is the TransPacific Partnership?, Cnn (June 12, 2015), http://www.cnn.com/2015/06/11/
politics/trade-deal-secrecy-tpp/ (reporting that Members of Congress were
permitted to read the TPP text only in two designated reading rooms in the
Capitol, under guard, and were not permitted to take notes or reveal the contents
of the agreement).
136 See Secret Trans-Pacific Partnership Agreement (TPP) – Environment
Consolidated Text, Wikileaks (Jan. 15, 2014), https://wikileaks.org/tpp-enviro/
(noting the release of draft chapters of the TPP in 2014) [hereinafter “Environmental Consolidated Text”]; Secret Trans-Pacific Partnership Agreement
– Environment Chairs Report, Wikileaks (Jan. 15, 2014), https://wikileaks.org/
tpp-enviro-chairsreport/ (highlighting that on the same day as the leak of the
Secret Trans-Pacific Partnership Agreement (TPP) – Environment Consolidated
Text, Wikileaks released the Chairs’ Report, which is made up of state negotiators’ comments on and disagreements with the Consolidated Text together with
their suggested revisions to the Chapter).
137 See TPP Final Text, supra note 134, art. 20.2.
138 See Environmental Consolidated Text, supra note 136, at art. SS.15; TPP
Final Text, supra note 134, at art. 20.15 (determining that the final text of the
TPP replaces the article on climate change with some anodyne language on the
importance of member states transitioning to a “low emissions economy.”).
139 See Ben Norton, No Mention of Climate Change in the TPP: Sierra Club
Report Shows “Dirty Deal” Means Environmental Disaster, SALON, (Dec.
2, 2015, 7:06 PM), http://www.salon.com/2015/12/02/no_mention_of_climate_change_in_the_tpp_sierra_club_report_shows_dirty_deal_means_environmental_disaster/.
140 See Press Release: Secret Trans-Pacific Partnership Agreement (TPP)—
Environment Chapter, Wikileaks (Jan. 15, 2014), https://wikileaks.org/tppenviro/pressrelease.html, Jan. 15, 2014 (according to Wikileaks’ press release
accompanying release of the leaked documents “[w]hen compared against
other TPP chapters, the Environment Chapter is noteworthy for its absence of
mandated clauses or meaningful enforcement measures. The dispute settlement
mechanisms it creates are cooperative instead of binding: there are no required
penalties and no proposed criminal sanctions.”).
141 See TPP Final Text, supra note 134, art. 20.11 (emphasis added).
142 See Meredith Wilensky, Potential Liability for Climate-Related Measures
under the Trans-Pacific Partnership, Colum. Ctr. for Climate Change L. 4
(2014), available at http://web.law.columbia.edu/sites/default/files/microsites/
climate-change/wilenskytranspacificpartnership8-7-14_-_revised.pdf.
143 See Henry Farrell, People Are Freaking Out about the
Trans Pacific Partnership’s Investor Dispute Settlement System. Why Should You Care?, Wash. Post (Mar. 16, 2015), http://
www.washingtonpost.com/blogs/monkey-cage/wp/2015/03/26/
44
people-are-freaking-out-about-the-trans-pacific-partnerships-investor-disputesettlement-system-why-should-you-care/ (reporting that the TPP ISDS mechanism is set out in Chapter 28 Dispute Settlement. ISDS is a common feature of
international trade agreements. According to Professor Rachel L. Wellhausen,
ISDS arrangements appear in some 3000 trade treaties and bilateral investment
treaties.).
144 See Elizabeth Warren, The Trans-Pacific Partnership Clause Everyone
Should Oppose, Wash. Post (Feb. 25, 2015), https://www.washingtonpost.
com/opinions/kill-the-dispute-settlement-language-in-the-trans-pacific-partnership/2015/02/25/ec7705a2-bd1e-11e4-b274-e5209a3bc9a9_story.html. Elizabeth Warren is the Senior U.S. Senator from Massachusetts.
145 See id.
146 See TPP Final Text, supra note 134, at art. 9.8.
147 Id. at art. 9.8.2; see Wilensky, supra note 142, at 5.
148 See Wilensky, supra note 142, at 5.
149 Id.
150 See Leaked TPP Investment Chapter Provides Greater Rights for Foreign
Investors than U.S. Constitution 1, available at http://webiva-downton.
s3.amazonaws.com/877/0c/9/5477/FOE_analysis_WikiLeaks_release_TPP_
investment_chapter_text.pdf (last visited Apr. 23, 2016) [hereinafter “Leaked
TPP”]; TPP Final Text, supra note 134, at Annex 9-B (attempting to set out
guidelines for indirect expropriation).
151 See Leaked TPP, supra note 150.
152 See Wilensky, supra note 142, at 5.
153 Id.
154 See Tim Smedley, Goodbye Nuclear Power: Germany’s Renewable Energy
Revolution, Guardian (May 10, 2013, 12:58 PM), http://www.theguardian.com/
sustainable-business/nuclear-power-germany-renewable-energy.
155 See Vattenfall AB et al. v. Federal Republic of Ger., ICSID Case
No. ARB/12/12, http://www.italaw.com/cases/documents/1655;
Wilensky, supra note 142, at 2; Clare Provost and Matt Kennard, The
Obscure Legal System That Lets Corporations Sue Countries, Guardian (June 10, 2015), http://www.theguardian.com/business/2015/jun/10/
obscure-legal-system-lets-corportations-sue-states-ttip-icsid.
156 TPP Final Text, supra note 134, at art. 9.6.
157 Id.
158 See Wilensky, supra note 142, at 9; see Lise Johnson & Lisa Sachs, The
TPP’s Investment Chapter: Entrenching, Rather than Reforming, a Flawed
System, Colum. Ctr. on Sustainable Inv. 2 (2015), available at http://ccsi.
columbia.edu/files/2015/11/TPP-entrenching-flaws-21-Nov-FINAL.pdf (referencing “the infamously vague and problematic fair and equitable treatment
(FET) obligation”).
159 Wilensky explains that most tribunals have regarded the FET standards
as expanding; however, the WTO Appellate Body need not render consistent
decisions because it is an ad hoc body not bound by stare decisis. See Wilensky,
supra note 142, at 8, 9-10 (contrasting Glamis Gold’s static standard (citation
omitted) with Waste Treatment II’s expanding standard (citation omitted)).
160 Id. at 11 (“Legitimate expectation claims are based on the principle that
where government actions create expectations in the minds of investors, it is
unfair for a state to change laws in such a way that frustrates the expectations
it helped to create.”) (quoting Jeswald Salacuse, The Law of Investment
Treatises 218, 232 (2010)). Tribunals have not been consistent in their
determinations of what sort of representations made by states create legitimate
expectations. The tribunal in Tecnicas Medioambientales found liability where
a state (Mexico) made no representation at all. Técnicas Medioambientales
Tecmed S.A. v. United Mexican States, ICSID Case No. ARB(AF)/00/2, Award,
¶ 153-154 (May 29, 2003), available at http://www.italaw.com/sites/default/
files/case-documents/ita0854.pdf [hereinafter “Tecmed”].
161 See Wilensky, supra note 142, at 12 (quoting Tecmed, supra note 160, at ¶
153-154).
162 See id.
163 See id.
164 See id. at 12-13 n. 91 (“A claimant cannot have a legitimate expectation
that the host country will not pass legislation that will affect it.”) (quoting Glamis Gold (citation omitted)).
165 Id. at 13. In Bilcon v. Canada, the Permanent Court of Arbitration found
reasonable expectations were created by non-binding statements by Canadian
officials and government advertising meant to spur mining operations in the
region. Johnson & Sachs, supra note 158, at 5 (citing Bilcon v. Canada, PCA
Case No. 2009-04, Award on Jurisdiction and Liability, March 17, 2015).
Sustainable Development Law & Policy
166 See
Wilensky, supra note 142, at 14 (explaining the trend towards supporting host country measures to defeat climate change).
167 See id. at 15-17.
168 See TPP Final Text, supra note 134, at art. 9.4.2.
169 Id. art. 9.5.; see also Wilensky, supra note 142, at 17.
170 See Table of Foreign Investor-State Cases and Claims under NAFTA and
Other U.S. “Trade” Deals, Public Citizen (June 2015), http://www.citizen.org/
documents/investor-state-chart.pdf.
171 See Greg Sargant, Is TPP Trade Deal a Massive Giveaway to Major Corporations? An Exchange between Obama and Sherrod Brown, Wash. Post (April
27, 2015), http://www.washingtonpost.com/blogs/plum-line/wp/2015/04/27/
is-tpp-trade-deal-a-massive-giveaway-to-major-corporations-an-exchangebetween-obama-and-sherrod-brown/.
172 Id.; see Gary Clyde Hufbauer, Senator Warren Distorts the Record on
Investor-State Dispute Settlements, Peterson Inst. for Int’l Econ. (March 2,
2015), http://blogs.piie.com/trade/?p=137 (“Over the decades, only 13 ISDS
cases have been brought to judgment against the United States. The United
States has not lost a single case.”); Joseph Stiglitz, The Secret Corporate Takeover, Guardian (May 13, 2015), http://www.theguardian.com/business/2015/
may/13/the-secret-corporate-takeover-of-trade-agreements (“American supporters of such agreements point out that the US has been sued only a few times so
far, and has not lost a case.”).
173 See Johnson & Sachs, supra note 158, at 15 n. 49.
174 See, infra note 179-82 and accompanying text.
175 See, infra note 191-202 and accompanying text.
176 See Appellate Body Report, United States—Country of Origin Labelling
(COOL) Requirements, WT/DS384/386 (May 18, 2015), available at https://
www.wto.org/english/tratop_e/dispu_e/cases_e/ds384_e.htm; Tennille Tracy,
U.S. Meat Labels Face Another WTO Decision, Wall St. J., May 18, 2015,
at A5; Mary Clare Jalonick, Congress Considering Repeal of Meat Labeling
Law, Boston Globe (June 10, 2015), https://www.bostonglobe.com/business/2015/06/10/congress-considering-repeal-meat-labeling-law/dWf3Izl4MwoIJgIdxDbLkK/story.html#.
177 Appellate Body Report, United States—Standards for Reformulated and
Conventional Gasoline, WT/DS2/AB/R (Apr. 29, 1996), available at https://
www.wto.org/english/tratop_e/dispu_e/2-9.pdf [hereinafter “Venezuela Gas
Dispute”].
178 See id. at 5, ¶¶ 3.1-3.2 (emphasizing that this is a necessary simplification.
The EPA imposed on each producer, foreign and domestic alike, a formula for
determining the formulation of its gasoline based on how “clean” their gasoline
had been in 1990. Gasoline producers whose records did not go back to 1990
(as was the case with Venezuela) were required to match the average quality of
gasoline in 1990); id. at 10,¶ 3.24 (noting that Venezuela’s claim was that under
this approach Venezuela would be forced to meet a higher standard for “clean”
gasoline than some US producers. Venezuela argued that, hypothetically, a U.S.
producer might be producing dirtier gas than Venezuela, yet be allowed to sell
without improving the environmental quality of its gas. Venezuela, however,
would have to improve the environmental quality of its gas.).
179 See Report of the Panel, United States—Standards for Reformulated and
Conventional Gasoline, WT/DS2/R (Jan. 29, 1996) ¶¶3.59, 3.62; see also
GATT, supra note 129, at art. XX(g) (stating “Subject to the requirement that
such measures are not applied in a manner which would constitute a means
of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade, nothing
in this Agreement [i.e., GATT] shall be construed to prevent the adoption or
enforcement by any contracting party of measures…relating to the conservation
of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.”).
180 See Report of the Panel, supra note 179, at ¶6.37.
181 See Analytical Index of the GATT, Article XX, General Exceptions, available at https://www.wto.org/english/res_e/booksp_e/gatt_ai_e/art20_e.pdf
(recalling that GATT Article XX allows measures provided that they are “not
applied in a manner which would constitute a means of arbitrary or unjustifiable
discrimination.”).
182 See Marrakesh Agreement Establishing the World Trade Organization, Apr.
15, 1994, 1867 U.N.T.S. 154 (noting that the Agreement establishing the WTO
requires states to make their laws conform to WTO rules) [hereinafter “WTO
Agreement”].
183 Martin Wagner & Patti Goldman, The Case for Rethinking the WTO:
The Full Story behind the WTO’s Environment and Health Cases 12 (1999),
available at http://www.earthjustice.org/sites/default/files/library/reports/
Spring 2016
thecase.pdf. Wagner and Goldman observe that in order “[t]o comply with the
WTO decision, EPA changed its regulations to allow foreign refineries to use all
alternative methods of calculating their compliance with the gasoline requirements, provided the refineries’ governments agree to subject the refineries to
U.S. inspection and enforcement authority….The new rule will allow dirtier
Venezuelan gasoline into the northeastern United States.”).
184 See Zach Carter & Ryan Grim, Obama’s EU Trade Deal Would Include
New Political Powers for Corporations, Huffington Post (Apr. 3, 2013), http://
www.huffingtonpost.com/2013/04/04/eu-trade-deal_n_2994410.html (“the
direct empowerment of corporations to unilaterally bring trade cases against
sovereign countries is not part of WTO treaties”).
185 Id.
186 Id.
187 See Elizabeth Becker, U.S. Tariffs on Steel Are Illegal, World Trade Organization Says, N.Y. Times (Nov. 11, 2013), http://www.nytimes.com/2003/11/11/
business/us-tariffs-on-steel-are-illegal-world-trade-organization-says.html
(noting that in 2002, President George W. Bush imposed tariffs on steel, leading
to a successful WTO challenge from the European Union and that the WTO
decision would allow the European Union to impose $2 billion of retaliatory
tariffs on the United States); Matt Tran, Bush Lifts Steel Tariffs to Avert Trade
War, Guardian (Dec. 4, 2003), http://www.theguardian.com/world/2003/dec/04/
usa.wto1 (noting that Bush lifted the steel tariffs); see also note 180 supra and
accompanying text.
188 See, e.g., Venezuela Gas Dispute, supra notes 179-81 and accompanying
text; see also supra note 174.
189 See GATT, supra note 129, at art. I, § 1 (Most Favored Nation obligation);
id. at art. III, § 4 (National Treatment Obligation); id. at Art. XX (prohibition
of expropriation); see José E. Alvarez, The Public International Law Regime
Governing International Investment 37 (2011) (noting that there is no fair and
equitable treatment obligation in GATT); see infra note 199 and accompanying
text (referencing the equivalent investor protections under NAFTA).
190 See Juliet Eilperin and Katie Zezima, Obama Vetoes Keystone XL Bill, Wash. Post (Feb. 24, 2015) https://www.
washingtonpost.com/news/post-politics/wp/2015/02/24/
keystone-xl-bill-a-k-a-veto-bait-heads-to-presidents-desk/.
191 Ibid.
192 See Kate Sheppard, Study Finds Keystone XL Would Have Much Larger
Impact than State Department Suggests, Huffington Post (July 9, 2014),
http://www.huffingtonpost.com/2014/03/03/keystone-xl-emissions-statedepartment_n_4892806.html; see also Juliet Eilperin, Environmentalists Take
Hard Line with Obama on Keystone XL, Wash. Post (Sept. 24, 2013), https://
www.washingtonpost.com/news/post-politics/wp/2013/09/24/environmentalistswarn-obama-against-keystone-xl-even-if-canada-compromises-on-climate/.
193 See TransCanada Corp. v. U.S., Notice of Intent to Submit a Claim to Arbitration Under Chapter 11 of the North American Free Trade Agreement, Jan. 6,
2016, available at http://www.keystone-xl.com/wp-content/uploads/2016/01/
TransCanada-Notice-of-Intent-January-6-2016.pdf [hereinafter “TransCanada
Notice of Intent”]; see also Todd Tucker, TransCanada Is Suing the U.S. over
Obama’s Rejection of the Keystone XL Pipeline. The U.S. Might Lose., Wash.
Post (Jan. 8, 2016), https://www.washingtonpost.com/news/monkey-cage/
wp/2016/01/08/transcanada-is-suing-the-u-s-over-obamas-rejection-of-thekeystone-xl-pipeline-the-u-s-might-lose/.
194 See TransCanada Notice of Intent ¶¶ 8, 12, 60; see also Complaint at ¶¶
2, 62, TransCanada Keystone Pipeline, LP v. Kerry, No. 4:16-cv-00036 (S.D.
Tex. Jan. 6, 2016), available at http://www.keystone-xl.com/wp-content/
uploads/2016/01/TransCanada-Complaint-January-6-2016.pdf (noting that
TransCanada is pursuing a two-track challenge against the United States. The
same day that TransCanada filed its Notice of Intent under NAFTA, January
6, 2016, it filed a Complaint in U.S. District Court for the Southern District of
Texas. In its Complaint, TransCanada alleged that President Obama’s unilateral
act of cancelling the Keystone XL pipeline was in violation of the U.S. Constitution as encroaching upon the power of Congress to regulate interstate and
foreign commerce).
195 See TransCanada Notice of Intent, supra note 194, at ¶ 1.
196 Id.
197 See id. at ¶¶ 10, 21, 23, 25, 34, 43, 45-46, 59.
198 See Steve Charnovitz & Carolyn Fischer, Canada—Renewable Energy:
Implications for WTO Law on Green and Not-So-Green Subsidies, Res. For the
Future 2 (Oct. 2014) http://www.rff.org/RFF/Documents/RFF-DP-14-38.pdf.
199 See generally Green Energy and Green Economy Act, S.O. 2009, c. P. 12
(Can.) (cited in Klein, supra note 7, at 475-76 n.3.)
45
200 See
218 See
201 Id.
219 Id.
Klein, supra note 7, at 57.
at 113.
202 Id. at 205 (noting that in the Green Energy and Green Economy Act LCRs
are called Minimum Required Domestic Content Levels).
203 See id. at 58.
204 Id. at 57.
205 Appellate Body Report, Canada—Certain Measures Affecting the
Renewable Energy Generation Sector, Canada—Measures Relating to the
Feed-In Tariff Program, WT/DS412/AB/R, WT/DS426/AB/R (May 6, 2013),
http://www.wto.org/english/tratop_e/dispu_e/412_426abr_e.pdf [hereinafter
“Canada—Renewable Energy Dispute”].
206 Klein, supra note 7, at 60; see also Wilensky, supra note 142, at 15-16.
207 See Klein, supra note 7 at 57-58 (noting that Naomi Klein profiles an Italian company, Silfab, which was manufacturing solar panels inside Ontario and
was thus receiving the benefits of the GEA’s feed-in tariff).
208 See Canada—Renewable Energy Dispute, supra note 205, at ¶¶ 5.85, 6.1(b)
(v); GATT 1994, Art. III, § 4, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S. 187, 33 I.L.M.
1153 (1994) [hereinafter “GATT 1994”]; Agreement on Trade-Related Investment Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World
Trade Organization, Annex 1A, 1868 U.N.T.S. 186 (1994) [hereinafter “TRIMS
Agreement”].
209 See Scott Sinclair & Stewart Trew, Keeping Green Energy Local and
Public, Hamilton Spectator (Dec. 18, 2013), http://www.thespec.com/opinionstory/4276197-keeping-green-energy-local-and-public/ (noting the LCRs were
removed in stages between 2013 and 2014).
210 See Thomas J. Timmins & Leslie Blumer, Canada: Ontario’s Minister
Of Energy Announces Changes To Feed-In Tariff Program, Mondaq (June 19,
2013), http://www.mondaq.com/canada/x/245550/Renewables/Ontarios+Mini
ster+Of+Energy+Announces+Changes+To+FeedIn+Tariff+Program; see also
Paul Gipe, Two Steps Forward, One Back: Ontario Cancels Feed-in Tariffs for
Large Projects, Renewable Energy World (June 10, 2013), http://www.renewableenergyworld.com/articles/2013/06/two-steps-forward-one-back-ontariocancels-feed-in-tariffs-for-large-projects.html.
211 See Aaron Cosbey, Renewable Energy Subsidies and the
WTO: The Wrong Law and the Wrong Venue, Int’l Inst. For Sustainable Dev. (June 19, 2011), https://www.iisd.org/gsi/news/
renewable-energy-subsidies-and-wto-wrong-law-and-wrong-venue.
212 Id. (noting that Ontario’s is not the only approach to reducing carbon and
that other approaches to controlling or reducing carbon may also be jeopardized
by national treatment provisions); Wilensky, supra note 142, at 15 (“National
treatment provisions may be invoked to challenge climate-related measures that
limit the import or export of carbon intensive fuels or favor domestic energy
sources because of lower associated GHG emissions.”); see Tim Worstall,
Naomi Klein’s Quite Extraordinary Logical Ignorance, Forbes (Sept. 20,
2014), http://www.forbes.com/sites/timworstall/2014/09/20/naomi-kleins-quiteextraordinary-logical-ignorance/#392f6481a673 (noting “The WTO has just
increased the installation rate of solar in Ontario, making climate change that
infinitesimal bit less bad”. Furthermore indicating that challenges can also be
anticipated should import bans be imposed on goods manufactured using fossil
fuels. Business writer Tim Worstall contends that Ontario is better off without
the LCRs. The FIT and the LCRs made possible the sale of higher priced solar
panels so long as they were manufactured in Ontario. Eliminating the LCRs
makes solar panels cheaper. This means that more solar panels are purchased
and installed.).
213 See generally Appellate Body Report, India—Certain Measures Relating to
Solar Cells and Solar Modules, WT/DS456 (Oct. 24, 2014), https://www.wto.
org/english/tratop_e/dispu_e/cases_e/ds456_e.htm; Klein, supra note 7, at 56.
214 See Charles Pierson, How the US and the WTO Crushed
India’s Subsidies for Solar Energy, CounterPunch (Aug.
28, 2015), http://www.counterpunch.org/2015/08/28/
how-the-us-and-the-wto-crushed-indias-subsidies-for-solar-energy/.
215 See US Challenges India’s Renewable Energy Incentives at WTO, Int’l Ctr. for Trade and Sustainable Dev. (Feb
13, 2013), http://www.ictsd.org/bridges-news/biores/news/
us-challenges-indias-renewable-energy-incentives-at-wto.
216 Id. (noting for its part, India has considered taking action against US
renewable energy subsidies at both state and federal levels); see Klein, supra
note 7, at 65 (noting that to date, however, India has not filed a challenge with
the WTO).
217 See Wilensky, supra note 142, at 11-12.
46
supra notes 86-90 and accompanying text.
Coal is the dirtiest fossil fuel. See Michelle Nijhuis, Can Coal Ever
Be Clean, Nat’l Geographic (Apr. 2014), http://ngm.nationalgeographic.
com/2014/04/coal/nijhuis-text.
220 See Existing Coal Plants in Kentucky, SourceWatch, http://www.sourcewatch.org/index.php/Category:Existing_coal_plants_in_Kentucky (last modified Aug. 28, 2012).
221 See Cane Run Station, SourceWatch, http://www.sourcewatch.org/index.
php/Cane_Run_Station (last modified Feb. 12 2016) (referencing that Cane Run
Station has three units owned by Louisville Gas & Electric); Mill Creek Station,
SourceWatch, http://www.sourcewatch.org/index.php/Mill_Creek_Station,
(last modified Sept. 4, 2012) (referencing that Mill Creek Station has four units
owned by Louisville Gas & Electric); E.W. Brown Generating Station, SourceWatch, http://www.sourcewatch.org/index.php/E.W._Brown_Generating_Station (last modified Feb. 16, 2016) (referencing that E.W. Brown Generating
Stations has three units owned by Kentucky Utilities Co.); Ghent Generating
Station, SourceWatch, http://www.sourcewatch.org/index.php/Ghent_Generating_Station (last modified Aug. 24, 2012) (referencing that Ghent Generating Station has four units owned by Kentucky Utilities Co.); Green River
Generation Station, SourceWatch, http://www.sourcewatch.org/index.php/
Green_River_Generating_Station (last modified Feb. 16, 2016) (referencing that
Green River Generating Station has two units owned by Kentucky Utilities Co.).
222 See E.ON, SourceWatch, http://www.sourcewatch.org/index.php/E.ON
(last modified on Nov. 14, 2012).
223 See Stuart Jeffries, What Is TTIP and Why Should We Be Angry about It?,
Guardian (Aug. 3, 2015, 1:15 PM), http://www.theguardian.com/business/2015/
aug/03/ttip-what-why-angry-transatlantic-trade-investment-partnership-guide.
224 See Alhaji B. M. Marong, From Rio to Johannesburg: Reflections on the
Role of International Legal Norms in Sustainable Development, 16 Geo. Int’l
Envtl. L. Rev. 21, 24 (2003).
225 See North American Agreement on Environmental Cooperation, 32 I.L.M.
1480 (1993); North American Agreement on Labor Cooperation, 32 I.L.M.
1499 (1993); Marong, supra note 224, at 63.
226 See Patricia Isela Hansen, Dispute Settlement in the NAFTA and Beyond,
40 TEXAS INT’L L. J. 417, 422 (2005) (“[T]he side agreements have also produced significant criticism from environmental and labor organizations, which
tend to view the agreements as toothless and ineffective.”).
227 TPP Full Text, supra note 134, at art. 9.16.
228 See Johnson & Sachs, supra note 158, at 2.
229 Id. (noting Article 9.15 “provides no real protection. Rather, it simply
notes that the government can regulate in the public interest as long as, when
doing so, the government complies with the Investment Chapter’s requirements
regarding treatment of foreign investors and investments”).
230 See Marong, supra note 224, at 63.
231 Id. (referencing that these are the WTO’s Committee on Trade and the
Environment and its Committee on Trade and Development); see also GATT
1994, supra note 208, at pmbl. (noting that the preamble of the WTO’s founding
instrument establishes sustainable development as a goal of the organization).
232 See Marong, supra note 224, at 63.
233 See Wilensky, supra note 142, at 18-20.
234 Compare Wilensky, supra note 142, at 18-20 with GATT, art. XX, Oct. 30,
1947, T.I.A.S. No. 1700, 55 U.N.T.S. 194 (laying out environmental exception
where environmental protection laws are acceptable unless they constitute
disguised restrictions on trade). An effective environmental exception clause
would, however, have to be phrased more strongly than Article XX. Even with
Article XX in place WTO tribunals have held several environmental laws inconsistent with WTO agreements.
235 See Wilesnky, supra note 142, at 17.
236 See Cordonier Segger & Khalfan, supra note 12.
237 Id.
238 See Birnie & Boyle, supra note 23, at 46.
239 See Bryner, supra note 2, at 258; Justice N. J. McNally, Human Rights in
the Context of Sustainable Development, in Sustainable Justice: Reconciling
Economic, Social and Environmental Law, supra note 12, at 80-88 (“It is difficult to effectively give moral lessons to hungry people. It is difficult to insist
on the preservation of the elephant population to villagers whose whole year’s
crop may be destroyed in a single night by animals coming out of the neighboring game preserve. It is difficult to require the forests to be preserved if these
resources are needed daily for cooking and housing.”).
240 See Edward Miguel, Africa’s Turn? 31-36 (2009) (noting development
imperiled by armed conflict).
Sustainable Development Law & Policy
241 See
Bryner, supra note 2, at 258.
242 As Ayn Rand put it: “When the house
258 See
is on fire you don’t run back inside to
dust.”
243 See Bryner, supra note 2, at 258.
244 See Anita Margrethe Halvorssen, Equality Among Unequals in
International Environmental Law: Differential Treatment for Developing
Countries 5 (1999); Bryner, supra note 2, at 258. Regarding regulatory infrastructure: sustainable development is impossible without laws and enforcement
mechanisms; access to sophisticated, clean technologies along with sufficient
numbers of educated personnel who know how to use them; and effective honest governments and bureaucracies. See Halvorssen, supra note 244, at 5.
245 See Bryner, supra note 2, at 258-60.
246 See Miguel, supra note 240, at 39-40; Nicholas Stern, The Global Deal
9 (2009) (noting that Asia is in the greatest danger from flooding, with immense
coastal areas and population subject to inundation. Bangladesh with its lowlying coast is in great danger. Flooding and crop failure spur mass migration
which may spark violent conflict between populations displaced by environmental failures “climate refugees” and a region’s existing population. Drought
is another cause of poverty and civil conflict.); Miguel, supra, at 240, 38-39
(noting that drought as a product of climate change caused by carbon emissions); Salman Masood, Starved for Energy, and Bracing for a Water Crisis,
N.Y. Times, Feb. 13, 2015, at A12 (“A combination of global climate change and
local waste and mismanagement have led to an alarmingly rapid depletion of
Pakistan’s water supply, said the minister for water and energy. . . ”); Nadia Prupis, Death Toll Soars in ‘Unbelievable’ Pakistan Heat Wave, Common Dreams
(June 24, 2015), http://www.commondreams.org/news/2015/06/24/death-tollsoars-unbelievable-pakistan-heat-wave (discussing how climate change may
have contributed to Pakistan’s catastrophic heat wave in Summer 2015. “A
former director of the Pakistan Environmental Protection Agency, Asif Shuja,
said earlier this week that the soaring temperatures are an impact of climate
change, fueled by rapid urbanization, deforestation, and car use.”); Adil Jawad,
Heat Wave Subsides in Pakistan as Death Toll Reaches 860, World Post (June
25, 2015, 3:09 PM), http://www.huffingtonpost.com/huff-wires/20150625/
as—pakistan-heat-wave/?utm_hp_ref=world&ir=world (noting how hundreds in
Pakistan died as the temperature reached a high of 113° F).
247 See Black, supra note 1, at 100.
248 Id.
249 See Birnie & Boyle, supra note 23, at 125-26.
250 Id. at 125.
251 See section V.C. infra.
252 See Sands, supra note 17, at 253.
253 See Black, supra note 1, at 142.
254 See section II infra.
255 See Marong, supra note 224, at 59 (suggesting that sustainable development should be considered to be, not a customary international law norm, but
a broad, overarching principle couched in general terms from which several
international law rules such as the precautionary principle flow).
256 We draw a lesson from US Constitutional law. Sustainable development is
no more inherently normatively uncertain than concepts such as “Equal Protection” or “Due Process of Law.” There is plenty of disagreement over what measures Equal Protection and Due Process require but no one suggests that such
disagreement renders these concepts meaningless. However, in constitutional
matters there is a final authoritative arbiter to say what Equal Protection and
Due Process are. In our globally anarchic system there is no entity which has
the final say on the meaning of intergenerational equity or any other component
of sustainable development, much less an entity which has the power to force
states to comply with sustainable development norms. Contrast international
trade law with its authoritative transnational tribunals rendering binding decisions carried out by powerful enforcement mechanisms. See section IV infra.
257 This relationship is called the environmental Kuznets curve. See David
I. Stern, The Rise and Fall of the Environmental Kuznets Curve, 32 World
Dev. 1419, 1419 (2004), http://steadystate.org/wp-content/uploads/Stern_
KuznetsCurve.pdf.
Spring 2016
Kenneth Arrow, et al., Economic Growth, Carrying Capacity, and the
Environment, 268 Science 520, 520 (1995), http://www.precaution.org/lib/06/
econ_growth_and_carrying_capacity.pdf.
259 Id.
260 Id.
261 Id.
262 Id.
263 Id.
264 Id.
265 See Hunter, supra note 21, at 180.
266 See Ørebech & Bosselman, supra note 10, at 13.
267 See Bryner, supra note 2, at 260.
268 Id.
269 Id.
270 See Bryner, supra note 2, at 261-63 (noting that what is being described
here is the notion of common but differentiated responsibilities); see supra
note 60. The Framework Convention on Climate Change obligates the North to
provide technical and financial assistance to the South. See FCCC, supra note
56, arts. 4(3) and 4(7).
271 See Bryner, supra note 2, at 263.
272 IEG of the Global Commons, United Nations Env’t Program, http://www.
unep.org/delc/GlobalCommons/tabid/54404/ (last visited Apr, 27, 2016).
273 United Nations System Task Team on the Post-2015 UN Development
Agenda, Global Governance and Governance of the Global Commons in the
Global Partnership for Development Beyond 2015 5-6 (Jan. 2013), http://
www.un.org/en/development/desa/policy/untaskteam_undf/thinkpieces/24_
thinkpiece_global_governance.pdf..
274 The South’s position is set out in the Charter of the Economic Rights and
Duties of States: “Every State has and shall freely exercise full permanent
sovereignty * * * over all its wealth, natural resources and economic activities.”
See Charter of the Economic Rights and Duties of States, G.A. Res. 3281
(XXIX), art. 2 (Jan. 15, 1975).
275 One way is through intellectual property law. Western pharmaceutical
corporations patent drugs based on the fauna of Southern countries, the folk
medicine of indigenous peoples, and even the genetic sequences of indigenous
peoples. See Yash Tandon, Trade is War: The West’s War against the World
105-09 (2015). The patents taken out by Western pharmaceutical firms bar the
South from producing low-price generic drugs impoverished people desperately
need in order to treat conditions such as HIV, malaria, and cancer. Id. at 108-12.
276 See generally Peter Singer, One World: The Ethics of Globalization
(2nd ed. 2004). In his first year in office, President Bush sent a letter to a group
of US Senators explaining his reasons for rejecting the Kyoto Protocol. See
George W. Bush, Text of a Letter from the President to Senators Hagel, Helms,
Craig, and Roberts, (Mar. 13, 2001) http://georgewbush-whitehouse.archives.
gov/news/releases/2001/03/20010314.html. After stating that “My Administration takes the issue of global climate change very seriously,” Bush continued
by stating “[A]s you know, I oppose the Kyoto Protocol because it exempts 80
percent of the world, including major population centers such as China and
India, from compliance and would cause serious harm to the U.S. economy.” Id.
277 See discussion supra at text accompanying notes 2-16 and 269-276.
278 See Singer, supra note 276, at 44.
279 Id. at 31-33.
280 See Lester C. Thurow, The Zero Sum Society: Distribution and the Possibilities for Economic Change 188 (1980).
281 Id.
282 Id.
283 Id. Thurow makes this analogy in the context of racial discrimination and
affirmative action. Id. It applies equally well to the inequities which currently
exist between the rich and poor countries.
284 See Singer, supra note 276, at 33-34, 43. Singer believes that steep reductions in carbon emissions need not trigger economic depression if a system of
carbon trading is adopted. Id. at 45-46. This was written in 2004, years before
the failure of President Obama’s proposed cap and trade scheme. See supra
notes 57-64 and accompanying text.
47
Endnotes: The Key to Engaging with the SDGs: Utilizing Rio Principle 10 to Successfully Implement the
U.N. Sustainable Development Goals
continued from page 27
17 Countries
currently lacking Right to Information laws include: Cuba,
Venezuela, Paraguay, Libya, Kenya, Tanzania, Madagascar, Saudi Arabia, Iran,
Cambodia, Malaysia, and Papua New Guinea. Article 19 map, supra note 4.
18 David Banisar, The Role of the Right to Information in Sustainable Development, in Governance for Sustainable Development—Ideas for the Post-2015
Agenda 3. (Friends of Governance for Sustainable Development ed., 2015).
19 Id.
20 Rio Declaration, supra note 1.
21 There is no internationally agreed upon definition of FPIC, but a general
description of it is “the right to participate in decision making and to give,
modify, withhold or withdraw consent to an activity affecting the holder of this
right. Consent must be freely given, obtained prior to implementation of such
activities and be founded upon an understanding of the full range of issues
implicated by the activity or decision in question; hence the formulation free,
prior and informed consent.” Forest Stewardship Council, FSC Guidelines
for the Implementation of the right to
Free, Prior and Informed Consent, 11
(FSC International Center GmbH, Version 1, Oct 30, 2012).
22 United Nations Dev. Programme, Access to Justice—Practice Note 7
(2004).
23 This is usually accomplished through legal court systems or other forms of
informal institutions of justice and grievance mechanisms.
24 United Nations Dev. Programme, Access to Justice and Rule of Law,
http://www.undp.org/content/undp/en/home/ourwork/democraticgovernance/
focus_areas/focus_justice_law.html (last visited Mar. 24, 2016).
25 SDSN Indicators and Monitoring Framework report, supra note 14 at 2.
26 See, United Nations Sustainable Dev. Goals, IAEG-SDGs, http://unstats.
un.org/sdgs/iaeg-sdgs (last visited Mar 2, 2016).
27 SDSN Indicators and Monitoring Framework report, supra note 14 at 2.
28 Id. at 7.
Endnotes: Developing an International Carbon Tax Regime
continued from page 35
at http://www.wri.org/sites/default/files/pdf/navigating_numbers.pdf; see also,
Sources of Greenhouse Gas Emissions, U.S. Envtl. Prot. Agency, http://www.
epa.gov/climatechange/ghgemissions/sources.html (noting that transportation
(not including the grid to support such transportation), accounts for twenty
percent of U.S. Greenhouse Gas emissions) (last visited Apr. 14, 2016).
17 See Atmospheric CO , Co2.Earth, https://www.co2.earth/ (last visited Apr.
2
14, 2016) (referencing Keeling Curve monthly).
18 See Andrew Freeman, The Last Time CO2 Was This High, Humans Didn’t
Exist, Climate Cent., http://www.climatecentral.org/news/the-last-time-co2was-this-high-humans-didnt-exist-15938 (last updated May 2, 2013).
19 See Herzog et. al., supra note 16, at 3 (showing that in 2004 Atmospheric
Carbon Dioxide measured at about 380 PPM).
20 Freedman, supra note 18.
21 Gavin A. Schmidt & Thomas R. Karl, Annual Global Analysis for 2014:
2014 was Warmest Year on Record, NASA/NOAA (Jan. 2015), http://www.
ncdc.noaa.gov/sotc/briefings/201501.pdf. Measurements go back as far as 1880.
Methodology varies slightly overtime, but by all accounts, the warmest 10 years
since or. growth over the past 30 years on, .ext (indicating that emtn l threat on
their own lands, while abusing the environment of devganized measurements
began have occurred since 1998. Id.; Freedman, supra note 18.
22 James Hansen et al., Target Atmospheric CO2: Where Should Humanity
Aim?, NASA/Goddard Inst. for Space Studies 1 (2008), http://arxiv.org/ftp/
arxiv/papers/0804/0804.1126.pdf.
23 Id. at 12.
24 David P. Vincent, Internalizing Externalities: An Economic and Legal
Analysis of an International Carbon Tax Regime, 92 Or. L. Rev. 163, 167
(2013), available at https://scholarsbank.uoregon.edu/xmlui/bitstream/
handle/1794/13577/Vincent.pdf?sequence=1 (citing Brad Plumer, When Do We
Hit the Point of No Return for Climate Change?, Wash. Post (Nov. 10, 2011),
http://www.washingtonpost.com/blogs/wonkblog/post/when-do-we-hit-thepoint-of-no-return-for-climate-change/2011/11/10/gIQA4rri8M_blog.html).
25 Stephen Sewalk, Europe Should Dump Cap-And-Trade in Favor of Carbon
Tax with Reinvestment to Global Emissions, 5 Wash. & Lee J. of Energy, Climate & Env’t 355, 361 (2014) (citing Junjie Zhang, Asia Society Pol’y Inst.,
Delivering Environmentally Sustainable Economic Growth: The Case of
China 2 (2012) (“China has achieved miraculous economic growth over the past
30 years.... However, growing the gross domestic product (GDP) at any cost has
created a series of social and environmental problems.”)..
26 Steven Specht, Dispute Resolution in the Transpacific Partnership:
Pillar or Pitfall, SSRN, Apr. 16, 2016, http://papers.ssrn.com/sol3/papers.
cfm?abstract_id=2765750.
27 Vincent, supra note 24, at 166-67.
28 The Gross World Product has increased from ~$7 trillion in 1960 to
more than $75 trillion today. See J. Brandford Delong, Estimating World
GDP, One Million B.C.-Present 8-9, available at http://delong.typepad.com/
print/20061012_LRWGDP.pdf. Adjusting the 1960 number for inflation brings
48
the 1960 number to $55 trillion. This is a thirty six percent increase compared
with a twenty seven percent increase in the same time period for measuring
atmospheric CO2 from 1958 to the present.
29 Chlorofluorocarbons were the primary culprit in the weakening of the
ozone layer above the South Pole. This will be discussed in more depth in the
section dealing with the problems of alternatives to a carbon tax.
30 See David L. Alles, Asian Air Pollution 23 (David L. Alles ed. 2013),
available at http://fire.biol.wwu.edu/trent/alles/AirPollution.pdf (last updated
April 24, 2013).
31 See id. at 52, 55, 56, 65.
32 See Marzia Sesini, The Garbage Patch in the Oceans: The Problem and
Possible Solutions (Aug. 2011) (unpublished M.S. thesis, Columbia University)
(on file with Columbia University), available at http://www.seas.columbia.edu/
earth/wtert/sofos/sesini_thesis.pdf (noting that while the Great Pacific Garbage
Patch in the northern portion of the Pacific Ocean is commonly mentioned in
media, similar concentrations of plastic particles also coalesce in gyres of the
South Pacific, North and South Atlantic, and the Indian Ocean).
33 See Desertification: The Invisible Front Line, United Nations Convention
to Combat Desertification 10 (2014), http://www.unccd.int/Lists/SiteDocumentLibrary/Publications/Desertification_The%20invisible_frontline.pdf (highlighting that some forty percent of conflicts have been disputes over resources
and eighty percent of conflicts have occurred in areas with resource shortages.
It is also a reasonable correlation to link a rise in Islamic fundamentalism gripping the central Africa to the slow creep of the Sahara. Now Nigeria, one of
the largest oil suppliers in the world is gripped in a desperate fight with Boko
Haram.)
34 See generally Multilateral Environmental Agreements 1950 through 2012,
International Envtl. Agreements (IEA) Database Project, http://iea.uoregon.
edu/page.php?query=summarize_by_year&yearstart=1950&yearend=2012&in
clusion=MEA (last visited April 15, 2016) (according to the IEA, which tracks
MEAs and Bi-Lateral Environmental Agreements (BEAs), there are currently
1248 MEAs and 1598 BEAs. The number of MEAs in 2007 was 972 meaning
an average of more than 39 agreements per year.).
35 These were the words of the Russian delegate who declined to sign the
Universal Declaration of Human Rights. See Nick Fraser, Dignity and Hope:
Too Much to Ask For?, Guardian (Sept. 20, 2008, 7:01 P.M.), http://www.
theguardian.com/world/2008/sep/21/humanrights.
36 See Dr. Seuss, The Lorax (1971); see also Rhona Lyons, How the Lorax
Can Save the Truffula Trees: The Environmental Remedies Available to the
Individual, 51 Mo. L. Rev. 1013 (1986), available at http://scholarship.law.
missouri.edu/cgi/viewcontent.cgi?article=3359&context=mlr (discussing how
an individual affected by pollution of natural resources should have standing to
bring claims against the polluter in Court, similar to the story in The Lorax).
37 While the Supreme Court did not specifically cite to Dr. Seuss, they did
reject arguments by the Sierra Club on behalf of the environment, and greatly
Sustainable Development Law & Policy
reduced remedies for individuals not directly affected by development. See
Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).
38 See generally The International Maritime Organization and the Environment, Int’l Mar. Org., http://www.imo.org/OurWork/Environment/Documents/
IMO%20and%20the%20Environment%202011.pdf (last visited Apr. 15, 2016).
It is necessary to note that the United States is a full member of the IMO,
despite often being the outlier in various UN Conventions focusing on second
and third generation rights. The inclusion and exclusion of all the world’s dominant economies will become more relevant later in this paper.
39 See Funds Overview, Int’l Oil Pollution Comp. Funds , http://www.iopcfunds.org/about-us/ (last visited March 23, 2016).
40 See New Fund Heralds Better Deal for Oil Pollution Victims, Int’l Mar.
Org., http://www.imo.org/blast/mainframe.asp?topic_id=848&doc_id=4531
(last visited Apr. 15, 2016).
41 Cf. Parties to the International Liability and Compensation Conventions,
Int’l Oil Pollution Comp. Funds, http://www.iopcfunds.org/about-us/membership/map/ (last visited Apr. 15, 2016). It must be pointed out that the United
States has retained observer status in the IOPC. The United States actually lobbied for higher standards of liability and in absence of this has enacted similar
domestic legislation under the Oil Pollution Act of 1990 which set up the Oil
Spill Liability Trust Fund. See The Oil Spill Liability Trust Fund, U.S. Coast
Guard: Nat’l Pollution Funds Ctr., http://www.uscg.mil/npfc/About_NPFC/
osltf.asp (last visited Apr. 15, 2016).
42 See generally John McPhee, Encounters with the Archdruid (1971) (providing a series of interviews, where the author discusses development, conservation, and preservation with David Brower who rails against any sort of human
development, even human development that increased biological diversity e.g.
man-made reservoirs).
43 See Zero-Sum Game, Investopedia, http://www.investopedia.com/terms/z/
zero-sumgame.asp#ixzz42R71zdNg (last visited Apr. 15, 2016) (defining
zero-sum game as a “situation in game theory in which one person’s gain is
equivalent to another’s loss, so the net change in wealth or benefit is zero.”).
44 See Shi-ling Hsu, The Case for a Carbon Tax 2 (2011).
45 Id. at 2-3. It is a reasonable observation that developing countries would
perhaps have even more negative effects with the use of such cheap oil. Consider that rising CAFE standards in the US have resulted in a burgeoning sell
of used vehicles to the developing world. The fact that vehicles are no longer
able to be used in the US suddenly on the road in another country means little
to no direct change in emissions. See Lucas W. Davis & Matthew E. Kahn,
International Trade in Used Vehicles: The Environmental Consequences of
NAFTA, 2 Am. Econ. J. 58, 71(2010), available at http://pubs.aeaweb.org/doi/
pdfplus/10.1257/pol.2.4.58 (demonstrating that cars traded from one country
to another result in similar if not worse pollution in the country that the car is
being exported to).
46 See Barry Rabe, The Political Viability of Carbon Taxation, Brookings Inst. (Dec. 5, 2012), http://www.brookings.edu/blogs/up-front/
posts/2012/12/05-carbon-tax-rabe.
47 See generally Don Fullerton & Gilbert E. Metfalg, Environmental Taxes
and the Double Dividend Hypothesis: Did You Really Expect Something for
Nothing?, 73 Chi.-Kent L. Rev. 221 (1998). The analysis of carbon tax regimes
later in the paper suggest a greater body of anecdotal evidence indicating that,
at least within the realm of carbon taxation, double dividend hypothesis is
firmer than some have posited). But see Lawrence H. Goulder, Environmental
Taxation and the “Double Dividend”: A Reader’s Guide 18, 31-32 (Nat’l
Bureau of Econ. Research, Working Paper No. 4896, 1994), available at http://
www.nber.org/papers/w4896.pdf (noting that the hypothesis has been called
into question for the lack of empirical proof).
48 See Juan-Carlos Altamirano-Cabrera et al., A Global Carbon Tax
to Compensate Damage and Adaptation Costs 1 (2008), available at http://
gemini-e3.epfl.ch/webdav/site/gemini-e3/shared/A%20global%20carbon%20
tax%20to%20compensate%20damage%20and%20adaptation%20costs.
49 See William D. Nordhaus, To Tax or Not to Tax: Alt. Approaches to Slowing
Global Warming, 1 Rev. of Envtl. Econ. & Pol’y 26, 40 (2007), available at
http://www.econ.yale.edu/~nordhaus/homepage/nordhaus_carbontax_reep.pdf.
50 See Amy J. Holzinger, Eco-Taxes in the European Union: The Need for a
Uniform Structure, 21 Wis. Int’l L.J. 185, 204 (2003).
51 See Environmental Taxes, European Env’t Agency, http://www.eea.europa.
eu/publications/92-9167-205-X/page016.html (last visited Apr. 15, 2016) (outlining how the vast majority of environmental taxes in Europe have come from
energy and transportation).
Spring 2016
52 See Jonathan
Gruber, Public Finance and Public Policy 137 (2013)
(using the example of the United States in the 1970s when it wanted to reduce
sulfur dioxide).
53 Id.
54 See Alternatives to CFCs, EasyChem.com.au, http://www.easychem.com.
au/monitoring-and-management/the-atmosphere/alternatives-to-cfcs (last
visited Apr. 15, 2016). This is of course not taking into account that these
chemicals bring about their own issues including adding to the mix of GHGs
responsible for global warming. This merely shows the limited successful
role of Command-and-Control Regulation. CFC Substitutes: Good for the
Ozone Layer, Bad for Climate?, Sci. Daily, http://www.sciencedaily.com/
releases/2012/02/120224110737.htm (last visited Apr. 15, 2016).
55 Hsu, supra note 44, at 19.
56 David Gee, Economic Tax Reform in Europe: Opportunities and Obstacles,
in Timothy O’Riordan, Ecotaxation 94 (1997).
57 Id.
58 Corporate Average Fuel Economy (CAFE) standards require that the average fuel efficiency of a given manufacturer meet a certain standard. See Fuel
Economy Regulations and Standards, U.S. Envtl. Prot. Agency, http://www3.
epa.gov/fueleconomy/regulations.htm (last visited April 15, 2016).
59 See Virginia McConnell, The New CAFE Standards: Are They Enough
on Their Own? 5 (2013), available at http://www.rff.org/RFF/Documents/RFFDP-13-14.pdf.
60 A car operating at 20 miles per gallon will travel 200 miles with 10 miles
of gas. A second car operating at 30 miles per gallon can accomplish the same
distance in 6.7 gallons of gas. However, if savings on fuel efficiency is redirected into increasing driving by 50 percent, the driver who goes 300 miles with
the second car still uses 10 gallons of gas.
61 See Stephen Sewalk, Europe Should Dump Cap-and-Trade in Favor of
Carbon Tax with Reinvestment to Global Emissions, 5 Wash. & Lee J. Energy,
Climate & Env’t, 355, 367 (2014).
62 Id.
63 Hsu, supra note 44 at 20.
64 Hsu, supra note 44, at 21.
65 Sewalk, supra note 61, at 371.
66 See National Greenhouse Gas Emissions, Env’t Can., https://www.ec.gc.
ca/indicateurs-indicators/default.asp?lang=en&n=FBF8455E-1 (last updated
April 11, 2014) (demonstrating Canada’s experience with greenhouse gas emissions) [hereinafter “Greenhouse Gas Emissions”].
67 See Sewalk, supra note 61, at 369.
68 See id. at 366 (providing a brief description of the program’s inception).
The EU ETS included all members of the EU at inception as well as Norway,
Iceland, Croatia, and Liechtenstein. See EU-ETS 2005-2012, European
Comm’n, http://ec.europa.eu/clima/policies/ets/pre2013/index_en.htm (last
visited April 15, 2016). Croatia’s accession to the EU in 2013 made it the
28th nation of the EU. See Croatia Joins the EU, European Union Newsroom,
http://europa.eu/newsroom/highlights/special-coverage/croatia-joins-eu/
index_en.htm (last visited Apr. 15, 2016).
69 See Tim Laing et al., Assessing the Effectiveness of the EU Emissions
Trading System 1 (Ctr. for Climate Change Econ. and Policy Working
Paper No. 126, 2013), http://www.lse.ac.uk/GranthamInstitute/wp-content/
uploads/2014/02/WP106-effectiveness-eu-emissions-trading-system.pdf (last
visited April 10, 2016).
70 See ETS, RIP?, Economist, (Apr. 20, 2013), http://www.economist.com/
news/finance-and-economics/21576388-failure-reform-europes-carbon-marketwill-reverberate-round-world-ets.
71 Sewalk, supra note 61, at 369 (citing Julien Chevallier et al., Options
Introduction and Volatility in the EU ETS, 33 Resource & Energy Econ. 855,
873 (2011) (explaining the uncertain nature of predicting the behavior of carbon
markets)).
72 Sewalk, supra note 61, at 375 (citing Sid Maher, Europe’s $287bn
Carbon “Waste:” UBS Report, The Australian (Nov. 23, 2011), http://www.
theaustralian.com.au/national-affairs/europes-287bn-carbonwaste-ubs-report/
story-fn59niix-1226203068972# (“UBS says the European Union’s emissions
trading scheme has cost the continent’s consumers $287 billion for “almost
zero impact” on cutting carbon emissions . . . .”)). At the same time the trading
scheme costs consumers some €210bn which could have been allocated to
replace the dirtiest power plants for a reduction of emissions by forty-three
percent. See Maher, supra.
73 This is a reference to the problems of centrally planned economies in
the Soviet Union which lacked the flexibility to adjust their targets swiftly.
Two examples include a surplus of left shoes or a surplus of 1.5 million
49
sewing machines when bureaucrats working to reduce a shortage of sewing
machines forgot to turn the program off. See Richard C. Longworth, The CallLeader, Nov. 9, 1967, at 10, available at http://call-leader.newspapers.com/
newspage/87896896/.
74 See Jeff Brady, After Solyndra Loss, U.S. Energy Loan Program Turning a
Profit, NPR, http://www.npr.org/2014/11/13/363572151/after-solyndra-loss-u-senergy-loan-program-turning-a-profit (last updated Nov. 20, 2014).
75 Am. Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat.
145 (codified as amended at 42 U.S.C. § 16516 (2009)), available at http://
www.gpo.gov/fdsys/pkg/PLAW-111publ5/pdf/PLAW-111publ5.pdf.
76 See Henry C. Jackson, Program that Funded Solyndra Failure Producing
Success Stories, Wash. Post (Dec. 30, 2014), available at http://www.washingtonpost.com/politics/program-that-funded-solyndra-failure-producing-successstories/2014/12/30/3e896b46-9074-11e4-a900-9960214d4cd7_story.html.
77 Id. (“[The stimulus] has been a tremendous success; I mentioned $30
billion in loans with a 2 percent default rate—that is pretty enviable in my
portfolio.”).
78 Rachel Gelman & Steve Hockett, U.S. Dep’t of Energy Office of
Energy Efficiency & Renewable Energy, 2008 Renewable Energy Data Book
3 (Michelle Kubik ed., 2009), http:// www1.eere.energy.gov/geothermal/pdfs/
data_book.pdf. (2008 is emphasized for the fact that the American Recovery
and Investment Act at issue in this discussion was in 2009).
79 See Aaron Tucker, Government Intervention in Clean Energy Technology
During the Recession, 42 Tex. Envtl. L.J. 347, 349 (2012) (citing Gelman &
Hockett, supra note 78, at 3).
80 Id.
81 The total amount of the American Recovery and Investment Act was $787
billion. Of this $75 billion was for green investments. However, much of the
green investments were for improving existing infrastructure (for example
insulation of old buildings) Environment America which is a federation of statebased advocacy groups estimated the total amount of stimulus for clean energy
projects came to $32.8 billion. See How do “Green Projects” Create Jobs?,
Scientific Am. (July 16, 2009), http://www.scientificamerican.com/article/
how-do-green-projects-create-jobs/.
82 The Iron Triangle is composed of interest groups, Congress, and bureaucracy, which can be united in preserving a specific spending paradigm. See F.
Gregory Hayden, Policymaking Network of the Iron-Triangle Subgovernment
for Licensing Hazardous Waste Facilities, 36 J. of Econ. Issues 477, 479 (2002),
available at http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1007&c
ontext=cbafacpub.
83 The defense industry still puts out a large quantity of Cold War era technology such as Abrams Tanks which serve little purpose in the last 20 years
of overseas contingency operations. Military planners would prefer to “use
[defense spending] in a different way.” Phillip Swarts, Lawmakers Force Pentagon to Buy Tanks, Keep Ships and Planes it Doesn’t Need, Wash. Guardian
(May 9, 2013), http://www.washingtontimes.com/news/2013/may/9/lawmakersforce-pentagon-to-buy-tanks-keep-ships-a/?page=all. However the paradox of
the iron triangle preventing meaningful reform is outlined by representatives
from Ohio where Abrams tanks are manufactured. Congressman Jim Jordan,
OH-4, when pushed on his support of shaving $42 billion from the defense
budget but blocking a cessation of producing Abrams tanks in his district. “My
job is to represent the 4th Congressional District [of Ohio].” Id. His colleague
in Ohio’s 10th Congressional District was equally honest. “An additional $120
million for Abram’s tank upgrades” “keeps the production lines open in Lima,
Ohio, and ensures that our skilled, technical workers are protected.” See Richard
Sisk, Congress Again Buys Abrams Tanks the Army Doesn’t Want, Military
Times (Dec. 18, 2014), http://www.military.com/daily-news/2014/12/18/
congress-again-buys-abrams-tanks-the-army-doesnt-want.html.
84 An example of this incredible gap in technology is fears that Chinese
Stealth Technology might catch up with that of the F-35. What must be pointed
out is that the most advanced jet in the Chinese arsenal is currently on par
with the F-15 and the F-18, jets whose most recent models were rolled out in
1989 and 1995 respectively. See Dave Majumdar, U.S. Pilots Say New Chinese
Stealth Fighter Could Become Equal of F-22, F-35, U.S. Navy Inst. (Nov. 6,
2014), http://news.usni.org/2014/11/05/u-s-pilots-say-new-chinese-stealthfighter-become-equal-f-22-f-35. See also F-15E Strike Eagle Fact Sheet, U.S.
Air Force (Apr. 15, 2005), http://www.af.mil/AboutUs/FactSheets/Display/
tabid/224/Article/104499/f-15e-strike-eagle.aspx (providing a background on
the F-15E Strike Eagle Aircraft); F/A-18 Fact File, U.S. Navy (May 26, 2009),
http://www.navy.mil/navydata/fact_display.asp?cid=1100&tid=1200&ct=1
(providing a background on the F/A-18 Aircraft).
50
85 See
Bobby Magill, Okla. Utilities Hit Homes Using Solar With Extra
Fee, Climate Cent. (Apr. 22, 2014), http://www.climatecentral.org/news/
oklahoma-solar-surcharge-bill-becomes-law-17335.
86 See Putting a Price on Carbon with a Tax, World Bank, http://www.worldbank.org/content/dam/Worldbank/document/SDN/background-note_carbon-tax.
pdf (last visited Apr. 15, 2016).
87 See generally Where Carbon is Taxed, Carbon Tax Ctr., http://www.
carbontax.org/services/where-carbon-is-taxed/ (last modified Jan. 15, 2015).
88 Id.
89 Id.
90 David G. Duff, Carbon Taxation in British Columbia, 10 Vt. J. Envtl. L.
87, 90 (2008); Nicholas Rivers & Brandon Schaufele, Carbon Tax Salience and
Gasoline Demand 1 (Dep’t of Econ.: Faculty of Social Sciences U. of Ottawa,
Working Paper No. 1211E, 2012), available at http://socialsciences.uottawa.ca/
sites/default/files/public/eco/eng/documents/1211e.pdf.
91 Duff, supra note 90, at 90. The Albertan system was done alongside a
carbon trading regime. Alberta’s Climate Change Program, IETA, http://www.
ieta.org/Resources/Resources/101s/ab-climate-change-program-april2015.pdf
(last updated Apr. 2015).
92 Duff, supra note 90, at 91.
93 Id. at 97 (noting that at the time of introduction, gasoline was taxed at 2.41
cents per liter, diesel at 2.76 cents per liter propane at 1.53 cents per liter of
propane, aviation fuel at 2.45 cents per liter. Other similar numbers were introduced for natural gas, low-heat-value coal, high-heat-value coal, coke, peat, and
tires.); see also Greenery in Canada: We Have a Winner, Economist (July 21,
2011), http://www.economist.com/node/18989175 (discussing that the rate of
$10 per ton was an introductory rate intended to increase over time by $5 annually.); Stewart Elgie, British Columbia’s Carbon Tax Shift: An Environmental
and Economic Success, World Bank (Sept. 10, 2014), http://blogs.worldbank.
org/climatechange/british-columbia-s-carbon-tax-shift-environmental-andeconomic-success (reporting that as of September 2014, the amount had risen to
$30 per ton).
94 See Duff, supra note 90, at 88.
95 See id.
96 See id.
97 Jeffrey Simpson et al., Hot Air: Meeting Canada’s Climate Change
Challenge 87 (2011) (explaining that cynicism on the subject of well-intended
but functionally failed policies is alive and well as these authors point out that
change is needed, but that it will take decades to see any lasting change from
sensible policies).
98 See Duff, supra note 90, at 89.
99 Greenery in Canada: We Have a Winner, supra note 93.
100 See id. (noting the national unemployment rate for Canada is 6.7 percent
while those in British Columbia are 5.5 percent); Labour force characteristics,
seasonally adjusted, by province (monthly) (Saskatchewan, Alberta, British
Columbia), Statistics Can., available at http://www.statcan.gc.ca/tablestableaux/sum-som/l01/cst01/lfss01c-eng.htm (last visited April 24, 2016).
101 See Elgie, supra note 93 (noting that Canada withdrew from the Kyoto
Protocol in 2012); see also Kyoto Protocol, supra note 1, at ch. XXVII.
102 See Canada GDP Growth Rate 1961-2015, Trading Econ., http://www.
tradingeconomics.com/canada/gdp-growth (highlighting the Canadian economy
began to retract in late 2007 and plummeted to a nearly two percent decline
in 2009. The economy has since regained positive growth that remains below
one percent annually) (last visited Apr. 24, 2016) [hereinafter “Canada GDP
Growth Rate”].
103 See Elgie, supra note 93.
104 See Yoram Bauman, The Canadians Are Coming!, Sightline Daily (May 21, 2014, 6:30 AM), http://daily.sightline.
org/2014/05/21/the-canadians-are-coming/; Andy Skuce, The Effect
of Cross-Border Shopping on BC Fuel Consumption Estimates,
Critical Angle (Aug. 18, 2013), http://critical-angle.net/2013/08/18/
the-effect-of-cross-border-shopping-on-bc-fuel-consumption-estimates/.
105 See Nicholas Rivers, The Case for a Carbon Tax in Canada, Canada 2020
(Nov. 11, 2014), http://canada2020.ca/canada-carbon-tax/ (explaining among
Canadian provinces, Alberta is the second highest producer of per capita GHG
emissions. This is likely due to its role in developing the Athabasca Oil Sands.
However, alongside a carbon tax, Alberta has also instituted a carbon trading
program which has resulted in reductions of 51 million tons of GHG according
to the Albertan government. This seems to be a slow in growth of emissions
rather than an aggregate reduction as the Canadian government shows GHG
production to rise from an estimated 231 tons to 249 tons from 2005-2012.
Compared with the growth from 169 in 1990, the rate of growth has shifted
Sustainable Development Law & Policy
from 2.7% annually to 1.1%. Placed alongside the booming development of oil
resources, the growth of emissions has been more than halved, something akin
to success by some estimates.); cf. Greenhouse Gas Emissions, supra note 66
(comparing Quebec, which has the least amount of per capita GHG production
to begin with but has shown an overall drop in per capita GHG production. The
fact that so much information exists for the overwhelming success of British
Columbia while so little information exists for the lesser successes in Alberta
and Quebec is akin to a drunk looking for his keys under a street lamp, because
“that is where the light is.”).
106 Where Carbon is Taxed, supra note 87.
107 See Peter Hannam, Fall in Greenhose Gas Emissions Biggest in 24 Years,
Sydney Morning Herald (June 13, 2014), http://www.smh.com.au/environment/climate-change/fall-in-greenhouse-gas-emissions-biggest-in-24-years20140613-zs7be.html (last visited April 10, 2016).
108 See Marianna O’Gorman & Frank Jotzo, Impact of the carbon price on
Australia’s electricity demand, supply and emissions, Ctr. for Climate Econ.
& Pol’y (July, 17, 2014), https://ccep.crawford.anu.edu.au/sites/default/files/
publication/ccep_crawford_anu_edu_au/2014-07/ccep1411.pdf.
109 See Oliver Milman, Carbon tax demise leading to large
rise in emissions, says academic, The Guardian (Nov. 4,
2014), http://www.theguardian.com/environment/2014/nov/04/
carbon-tax-demise-leading-to-large-rise-in-emissions-says-academic.
110 Hannam, supra note 107.
111 See Canada GDP Growth Rate, supra note 102; Australia GDP Growth
Rate 1959-2016, Trading Economics, http://www.tradingeconomics.com/
australia/gdp-growth (last visited April 15, 2015). (explaining that Australia
suffered less in the global decline of 2007-2008 and has had two minor recessions in 2008 and 2010. GDP growth rate has typically stayed within 0.5 and
1.5% annually over the last decade. Any attempt to make a correlation with
GDP growth rate and the sudden rise in emissions fails, as the change in GDP
following the change in government was actually a decline from 1.1% to 0.5%.
The growth rate remains at 0.5% per quarter, down from the 0.7% per quarter
average in the eight quarters during which the carbon tax was in place.).
112 Jenny Fung, Informing Green Tax Policy Through the Laffer Curve, 9
Wash. U. Undergraduate Research Digest 4 (2014), available at http://openscholarship.wustl.edu/vol9_iss2/3; see also Where Carbon is Taxed, supra note
87.
113 See Fung, supra note 112, at 4.
114 See Where Carbon Is Taxed, supra note 87.
115 See Fung, supra note 112, at 8.
116 Id. at 10.
117 See Ireland’s Provisional Greenhouse Gas Emissions in 2013: Key Highlights, Ireland EPA 1 (2014), available at http://www.epa.ie/pubs/reports/air/
airemissions/GHGprov.pdf..
118 Richard L. Ottinger, Energy and Environmental Challenges for Developed
and Developing Countries; Keynote Address Presented at the United Nations
Meeting on Energy and Environment in the Development Process, 9 Pace
Envtl. L. Rev. 55, 102-03 (1991).
119 See id.
120 See Robert N. Stavins, Policy Instruments for Climate Change: How Can
National Governments Address A Global Problem?, U. Chi. Legal F. 293
(1997).
121 See Jonathan Baert Wiener, Global Environmental Regulation: Instrument
Choice in Legal Context, 108 Yale L.J. 677, 786 (1999) (citing Stuart Eizenstat,
Stick with Kyoto: A Sound Start on Global Warming, Foreign Aff. at 119-120
(May/June 1998), (rebutting the advocacy of an international greenhouse gas
tax)).
122 See Sangmin Shim, Korea’s Leading Role in Joining the Kyoto Protocol
with the Flexibility Mechanisms As “Side-Payments”, 15 Geo. Int’l Envtl. L.
Rev. 203, 231 (2003).
123 See Paul G. Harris, Collective Action on Climate Change: The Logic of
Regime Failure, 47 Nat. Resources J. 195, 213 (2007) (noting that it was
“never likely that an international carbon tax would be implemented.”).
124 See Hsu, supra note 44, at 20. See generally Chris Hastings, Implementing
a Carbon Tax in Florida under the Clean Power Plan: Policy Considerations,
43 Fla. St. U. L. Rev. 1035, 1054 (2016).
125 See Cooper, supra note 4, at 67-68 (emphasis added).
126 See William Forster Lloyd, Two Lectures on the Checks to Population
17 (Oxford Univ. Press 1833) (stating that “the influence of different institutions
and conditions of society, according as they are favourable or unfavourable to
the preventive check, will form an interesting subject of inquiry.”).
Spring 2016
127 See
John D. McKinnon & Scott Thurm, U.S. Firms Move Abroad to Cut
Taxes, Wall St. J. (Aug. 28, 2012, 9:38 PM), available at http://www.wsj.com/
articles/SB10000872396390444230504577615232602107536 (explaining a
company’s domicile is often determined by the most favorable taxation rates).
128 See UNEP Report: Developing Countries’ Adaptation Costs Likely to Far
Surpass Previous Estimates, United Nations Env’t. Programme (Dec. 5, 2014),
http://www.un.org/climatechange/blog/2014/12/unep-report-developing-countries-adaptation-costs-likely-far-surpass-previous-estimates/ (noting adaptation
costs are those associated with the “intensifying impacts of climate change such
as drought, floods and rising sea levels.”) [hereinafter “UNEP”].
129 See Working Group III: Mitigation, Intergovernmental Panel on Climate
Change, http://www.ipcc.ch/ipccreports/tar/wg3/index.php?idp=251 (last visited April 10, 2016).
130 See Michael Hoel, Harmonization of Carbon Taxes in International Climate Agreements, 3 Envtl. & Resource Econ. 221, 221 (1993).
131 See Cooper, supra note 4, at 74.
132 See Special Report: The Global 2000, Forbes (April 2, 2008, 6:00 PM),
available at http://www.forbes.com/lists/2008/18/biz_2000global08_TheGlobal-2000_Prof.html.
133 See generally Stephen Spratt, Preface to A Sterling Solution, Stamp
Out Poverty 2 (Sept. 2006), http://www.stampoutpoverty.org/wp-content/
uploads/2012/10/A-Sterling-Solution.pdf.
134 See Holzinger, supra note 50, at 194 (2003).
135 See Org. for Econ. Co-operation and Dev., Envtl. Taxes and Green Tax
Reform 16-18 (1997).
136 See Lloyd, supra note 126.
137 See Altamirano-Cabrera et al., supra note 48 at 12.
138 See generally World Economic Outlook Database, Int’l Monetary Fund,
http://www.imf.org/external/pubs/ft/weo/2015/02/weodata/index.aspx (citing
“By Countries (country-level data” hyperlink) (last visited Apr. 26, 2016).
139 See Charles D. Patterson, III, Environmental Taxes and Subsidies: What
is the Appropriate Fiscal Policy for Dealing With Modern Environmental
Problems?, 24 Wm. & Mary Envtl. L. & Pol’y Rev. 121, 124-25, 127 (2000)
(noting the different kinds of management systems at a corporation’s disposal).
140 But see Coon, supra note 8.
141 See Shim, supra note 122, at 229-31 (2003) (addressing some potential
solutions to the free-rider problem).
142 Report by the Working Party on Border Tax Adjustments, ¶ 4, L/3464 (Nov.
20, 1970), at 2, available at http://worldtradelaw.net/document.php?id=reports/
gattpanels/bordertax.pdf (explaining a Border Adjustment as “[A]ny fiscal
measures which put into effect, in whole or in part, the destination principle
(i.e. which enable exported products to be relieved of some or all of the tax
charged in the exporting country in respect of similar domestic products sold
to consumers on the home market and which enable imported products sold to
consumers to be charged with some or all of the tax charged in the importing
country in respect of similar domestic products.”)).
143 See David G. Victor, The Collapse of the Kyoto Protocol and the
Struggle to Slow Global Warming 5, 7 (Princeton Univ. Press 2001) (noting
that developing nations are extremely cautious in entering into these taxes as it
may place an economic burden on them in order to keep up with the developments of greenhouse gas controls).
144 See Vincent, supra note 24, at 167.
145 See id. at 176-79.
146 Id. at 180.
147 See GATT 1994:General Agreement on Tariffs and Trade 1994, Apr. 15,
1994, Marrakesh Agreement Establishing the World Trade Organization, art. I,
The Legal Texts: The Results of the Uruguay Round of Multilateral Trade
Negotiations 17 (1999), 1867 U.N.T.S. 187, 33 I.L.M. 1153 (1994) [hereinafter
GATT 1994].
148 See id. at art. III.
149 See id. at art. XX.
150 See id. at art. III.
151 Vincent, supra note 24, at 181.
152 See id. at 180-83.
153 See id. at 183-84.
154 See generally Gregary Shaffer, Note, United States – Import Prohibition of
Certain Shrimp and Shrimp Products, 93 Am. J. Int’l L. 507, 508 (1999) (providing a background on Shrimp/Turtle); Victor, supra note 143, at 88 (explaining that Shrimp Turtle opened the door to enforce legitimate environmental
goals in international trade).
51
155 Vincent,
supra note 24, at 180 (quoting Timothy E. Deal, WTO Rules and
Procedures and Their Implications for the Kyoto Protocol 8, U.S. Council for
Int’l Bus. (2008), http://www.uscib.org/docs/wto_and_kyoto_2008.pdf).
156 See id. at 185 (citing GATT art. XX).
157 See generally Laura Yavitz, The World Trade Organization Appellate Body
Report, European Communities – Measuring Affecting Asbestos and Asbestos
Containing Products, Mar. 12, 2001 WT/DS135/AB/R, 11 Minn. J. Global
Trade 43, 66 (2002) (stating that “Article XX’s exceptions can be accepted if
they can explain trade measures in terms of protecting people, animals, plants
or exhaustible natural resources within their own jurisdictional limits and without requiring others to change any policies or production methods.”).
158 Trade and Environment at the WTO, World Trade Org. 21, 52 (2004),
https://www.wto.org/english/tratop_e/envir_e/envir_wto2004_e.pdf.
159 See Vincent, supra note 24, at 187.
160 See Patterson, supra note 139, at 127. See generally Alexandre Kiss &
Dinah Shelton, International Envtl. Law 215 (Transnational Publishers, Inc.
2d ed. 2007).
161 See Kate Gordon, Why Renewable Energy Still Needs Subsidies, Wall
St. J. (Sep. 14, 2015, 8:20 AM), http://blogs.wsj.com/experts/2015/09/14/
why-renewable-energy-still-needs-subsidies/.
162 See UNEP, supra note 128.
163 See New Research Analyzes Countries at Greatest Risk from Climate
Change Impacts, Earth Inst. at Columbia U. (March 29, 2007), http://www.
earth.columbia.edu/news/2007/story03-29-07.php. See generally Percentage
of Total Population Living in Coastal Areas, United Nations, http://www.
un.org/esa/sustdev/natlinfo/indicators/methodology_sheets/oceans_seas_coasts/
pop_coastal_areas.pdf (detailing the global population living in coastal areas)
(last visited April 26, 2015).
164 See Jochen Hinkel et al., Coastal Flood Damage and Adaptation Costs
Under 21st Century Sea-Level Rise, 111 Proceedings of the National Acad.
of Sci. of the U.S. 3292, 3293 (Jan. 31, 2013), http://www.eenews.net/
assets/2014/02/04/document_ew_01.pdf (“Without adaptation, 0.2–4.6% of
global population is expected to be flooded annually in 2100 under 25–123
cm of global mean sea-level rise, with expected annual losses of 0.3–9.3% of
global gross domestic product. Damages of this magnitude are very unlikely to
be tolerated by society and adaptation will be widespread. The global costs of
protecting the coast with dikes are significant with annual investment and maintenance costs of US $12–71 billion in 2100, but much smaller than the global
cost of avoided damages even without accounting for indirect costs of damage
to regional production supply.”).
165 See Cooper, supra note 4, at 74.
166 See 2015 Ranking of the Global Top 10 Oil and Gas Companies Based on
Net Income (in Billion U.S. Dollars), Statistics Portal (2015), http://www.
statista.com/statistics/272711/top-global-oil-and-gas-companies-based-on-netincome/ (indicating that it is unclear at the time of this writing precisely how to
deal with subsidies of gas and oil companies by Western governments or how
to properly levy a tax on the state-owned enterprise (SOEs) that exist in Russia
and China); see also Daniel J. Weiss & Miranda Peterson, With Only $93 Billion in Profits, the Big Five Oil Companies Demand to Keep Tax Breaks, Ctr.
For Am. Progress (Feb. 10, 2014), https://www.americanprogress.org/issues/
green/news/2014/02/10/83879/with-only-93-billion-in-profits-the-big-five-oilcompanies-demand-to-keep-tax-breaks/.
167 See Eric Gargan, Reflections on the Implementation of the Carbon
Tax in Ireland, Energy and Envtl. Taxation, Fiscal Pol’y Div. (May 16,
2012), http://www.nesc.ie/assets/files/downloads/project_climate%20change/
ucd_workshop/ericgargan.pdf.
168 See Ireland GDP 1960-2016, Trading Economics, http://www.tradingeconomics.com/ireland/gdp (last visited Apr. 26, 2016).
169 See Gross Domestic Products of Nations, World Bank, http://databank.
worldbank.org/data/download/GDP.pdf (last visited Apr. 26, 2016).
170 See Guyana, Climate Hot Map, http://www.climatehotmap.org/globalwarming-locations/guyana.html (providing Guyana as an example of a vulnerable nation) (last visited Apr. 26, 2016); Guyana GDP 1960-2016, Trading
Econ., http://www.tradingeconomics.com/guyana/gdp (highlighting a fund
would help protect the economies of developing nations which in turn means
increased purchasing power to participate in international markets. For example,
80 percent of the Guyanese population lives in a low-lying coastal region along
with most of the national industry and agriculture. The cost of dealing with
a predicted global sea level rise of two meters comes to a little more than $1
billion which is far less than the economic damage caused by flooding or the
long term cost of regional instability caused by a weakened Guyanese economy.
However, the $1 billion price tag is roughly 33 percent of Guyanese GDP as of
2014, an insurmountable cost for mere domestic measures) (last visited Apr. 26,
2016).
171 See Holzinger, supra note 50, at 186.
172 See Jean-Philippe Barde, Environmental Taxation: Experience in OECD
Countries 230 (1997).
173 See Kiss & Shelton, supra note 160, at 215.
174 See Holzinger, supra note 50, at 190.
175 Andrew C. Revkin, A Closer Look at China’s ‘You First’ Stance in Climate
Treaty Talks, N.Y. Times (Nov. 22, 2013, 2:43 PM), http://dotearth.blogs.
nytimes.com/2013/11/22/a-closer-look-at-chinas-you-first-stance-in-climatetreaty-talks/?_r=0.
176 See Vincent, supra note 24, at 165-66.
177 See id. at 175.
178 See Member States, IGOs, and NGOs, Int’l Mar. Org., http://www.imo.
org/en/About/Membership/Pages/Default.aspx (last visited Apr. 26, 2016).
179 See International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, Int’l Mar. Org., http://
www.imo.org/About/Conventions/ListOfConventions/Pages/InternationalConvention-on-the-Establishment-of-an-International-Fund-for-Compensationfor-Oil-Pollution-Damage-%28FUND%29.aspx (last visited Apr. 26, 2016)
[hereinafter “FUND”].
180 See Parties to the International Liability and Compensation Conventions,
Int’l Oil Pollution Cleanup, http://www.iopcfunds.org/about-us/membership/
map/# (explaining notable absences include the oil producing countries of the
United States, Libya, and Iraq. As the fund is for those receiving oil rather than
exporting it, this is reasonable.) (last visited Apr. 26, 2016).
181 See FUND, supra note 180.
182 See SDR Valuation, Int’l Monetary Fund, https://www.imf.org/external/
np/fin/data/rms_sdrv.aspx (last visited Apr. 26, 2016).
183 See FUND, supra note 180.
184 See id.; Home, Int’l Oil Pollution Compensation Fund, http://www.iopcfunds.org/ (last visited Apr. 26, 2016).
185 See Erika, Int’l Oil Pollution Cleanup Fund, http://www.iopcfunds.org/
incidents/incident-map/#111-1999-235-December (last visited Apr. 26, 2016).
186 See id.
187 See id.
188 Vincent, supra note 24, at 180, 184.
Endnotes: The Law of the Seas: A Barrier to Implementation of Sustainable Development Goal 14
continued from page 37
http://opiniojuris.org/2013/05/27/law-of-the-sea-symposium-whaling-wars-nonstate-actors-and-international-responsibility/.
28 See Sea Shepherd Seeks Dutch Prosecution of Japanese Whalers, Env’t
News Serv. (Mar. 24, 2013) http://ens-newswire.com/2013/03/21/sea-shepherdseeks-dutch-prosecution-of-japanese-whalers/ (detailing SSCS’s claim that
IRS’s “commercial whaling in the waters south of 60 degrees violated the
Antarctic Treaty that prohibits commercial activity in the waters around the
continent of Antarctica”).
52
29 See
Flags of Inconvenience, supra note 25 (explaining that cargo owners
and shipping companies are excluded from the authority of UNCLOS).
30 See Goal 14, supra note 4.
31 See In deep water, The Economist (Feb. 22, 2014), http://www.economist.
com/news/international/21596990-humans-are-damaging-high-seas-nowoceans-are-doing-harm-back-deep-water (“Two-thirds of fish stocks on the high
seas are over-exploited—twice as much as in parts of oceans under national
jurisdiction”).
32 See Goal 14, supra note 4.
Sustainable Development Law & Policy
Spring 2016
53
54
Sustainable Development Law & Policy
Subscription
Information
Sustainable Development Law & Policy (ISSN 1552-3721) publishes
three issues each year. Subscriptions are $30 per year. Because our
goal is to make Sustainable Development Law & Policy available to
practitioners in related fields, if a non-profit organization is unable
to meet the subscription price, the publication may be available at no
cost upon request. All subscriptions will be renewed automatically
unless timely notice of cancellation is provided.
To subscribe, please contact us by email (preferred) or at:
Managing Editor
Sustainable Development Law & Policy
American University Washington College of Law
4300 Nebraska Avenue, NW Room CT03
Washington, DC 20016
Tel: (202) 274-4057
Email: [email protected]
Nonprofit Org.
U.S. Postage
PAID
Hagerstown MD
Permit No. 93
SDLP
American University
Washington College of Law
4300 Nebraska Avenue, NW Room CT03
Washington, DC 20016
Forwarding Service Requested