Climate change mitigation has become one of the most relevant topics today, and it will continue for years to come. It is a concern that has implications in economics, law, science, human rights, technology, international relations and ethics, to name but a few fields of knowledge. Climate change is a global problem that knows no geographical barriers. International law is not well equipped to face the challenges of climate change. Global climate is an indivisible public good. International law currently faces the challenge of fragmentation and the need to bring greater coherence to a fragmented system in combating climate change. The aim of this article is to explain the trade implications of climate change mitigation policies by analyzing a couple of areas where the international regimes for trade and climate change mitigation/energy may potentially clash: 1) border carbon adjustments and 2) applying subsidies and similar measures in order to encourage environmentally-friendly technologies. After the introduction, Section 2 provides an analysis on the link between the legal regimes of international trade and climate change. Section 3 compares both regimes and Section 4 offers an overview of unilateral trade-related climate change measures. Section 5 examines the main WTO provisions on subsidies and analyzes the WTO cases on subsidies for renewable energy. Section 6 focuses on the inclusion of aviation in the EU Emission Trading Scheme (EU ETS) and the potential expansion of the EU ETS to the shipping industry. Section 7 concludes the article.
This article explains why the WTOand the various agreements that form an integral part of the Agreement establishing the WTO raise problems and challenges for the Court of Justice of the European Communities (ECJ). It focuses on the role of the ECJ in relation to exclusive and shared competence. The European Community's (EC) specific problems and challenges for the ECJ are partly related to the EC's position in the WTO. In this sense, the opinion of Advocate General Tesauro in Hermès International v. FHT Marketing Choice is helpful for understanding the unitary character of the EC's external trade relations. This article includes a discussion of Hermès v. FHT Marketing concerning the interpretation of Article 50 of the Agreement on TRIPS, annexed to the 1994 Agreement establishing the WTO. The new mechanisms introduced by the WTO Dispute Settlement Understanding are perhaps not comparable to the full judicial system within the EU, but they have changed both the rules and the legal culture concerning the adjudication and enforcement obligations. Although the WTO is still an intergovernmental organization, powerful private actors have already learned to manipulate the system to reach legal adjudication under the guise of intergovernmental disputes. This paper concludes that the EC wants to deny 'direct effect' to the WTO. This article offers the conclusion that we must aim at the creation of new standards to judge the applicability of international agreements. Otherwise, by allowing policy makers to decide rather than ECJ, the EC legal order may be at risk.
This article argues that the Kyoto Protocol to the 1992 Framework Convention on Climate Change (UNFCCC) was doomed to fail ab initio because it systematically misunderstood the nature of climate change as a policy issue between 1985 and 2009. It explains why this is the case by analyzing the Kyoto Protocol’s shortcomings and defi ciencies. Moving the climate change agenda forward multilaterally among the 195 parties to the UNFCCC is proving to be a serious challenge. The lack of progress in UNFCCC negotiations in recent years, especially the failure to obtain an international agreement on emissions limitations targets and timetables by all major developed and developing country emitters, has led many to question whether the UNFCCC is, in fact, the best and most eff ective forum for mobilizing a global response to climate change. The current approach to negotiating a comprehensive, universal, and legally binding global agreement on climate change is unlikely to succeed. The near-disaster 2009 Conference of the Parties-15 in Copenhagen empirically demonstrated that the UN machinery is incapable of moving forward fast enough to produce a global climate deal. Moreover, international climate policy, as it has been understood and practiced by many governments of the world under the Kyoto Protocol approach, has failed to produce any discernable real world reductions in emissions of greenhouse gases since the mid 1990s. Part 2 is devoted to the main legal, structural, and policy responses to climate change by providing an analysis of most Conferences of the Parties. Part 3 provides then an analysis of the Kyoto Protocol. Part 4 then analyzes the position of the three main players in climate change: the U.S., China, and the European Union. The article concludes with some recommendations for the future.