EU Approach to International Trade Regimes and Climate Change Mitigation Flashcards
What are the main overarching questions of this lecture on trade & CC mitigation? (2)
1/ What is the better approach to trade and CC mitigation issues?
2/ A unilateral or plurilateral approach?
What are the key issues related to unilateralism in trade & envtal matters? (2)
1/ extraterritoriality
2/ unilateral nature of measures
What is a major question related to unilateralism in trade & envtal matters?
Can States legally address harm occurring outside their jurisdiction through trade restrictions?
What are 2 relevant cases on topic of unilateralism in trade & envtal matters?
1/ US-Tuna (Mexico) - 1991 GATT Panel Report
2/ US-Shrimp - 1998 WTO AB Report
What are arguments related to extraterritoriality which oppose the use of trade measures addressing harm abroad? (2)
1/ formal jurisdictional objections
2/ eco-imperialism or economic coercion
Contributions of US-Tuna (Mexico) Report regarding extraterritoriality argument? (2)
1/ US ban on tuna imports = ‘extrajurisdictional’
2/ MS cannot force other parties to change their policies within their jurisdiction
Contribution US-Shrimp Report regarding extraterritoriality and eco-imperialism/coercion?
Conditioning market access on unilateral public interest measure may, to some degree, be a common aspect of measures falling within scope of Art. XX GATT public policy exceptions
What are arguments related to unilateralism which oppose trade measures addressing harm abroad? (2)
1/ lack of inclusion/consultation
2/ lack of calibration
Contribution US-Shrimp Report regarding unilateralism arguments? (3)
1/ US had not engaged in serious negotiations before enforcing its unilateral import prohibition
2/ US shrimp ban was rigid and unbending standard
3/ US shrimp ban did not take into consideration different conditions other MS
Which case is relevant regarding jurisdiction of EU to regulate harm occurring abroad?
ATAA
Contribution ATAA case on ECJ’s approach to extraterritoriality EU law? (5)
1/ Art. 3(5) TEU: EU must observe IL in its entirety
2/ but permissive stance: if absence of a rule prohibiting from legislating extraterritorially, possibility to do so as long as rules enforced within territory
3/ enforcement in EU territory is therefore trigger for EU jurisdiction
4/ element of choice
5/ no consideration of extraterritorial economic coercive effects
Which arguments related to EU law are relevant to address concerns of unilateralism (extraterritoriality)? (5)
1/ Arts. 3(5) and 21(1)(2)(f) TEU
2/ WTO DSB decisions binding in EU legal order
3/ Art. 11 TEU and Art. 2 Prot. 2: consultations with stakeholders
4/ broad discretion EU institutions to comply with pcple of proportionality (cf Inuit II)
5/ safety valves
What is lacking regarding consultations with stakeholders pursuant to Art. 11 TEU and Art. 2 Prot. 2? (3)
1/ contributes to legitimacy
2/ but does not ensure a legal right allowing for legal contestation
3/ cf Inuit II: only procedural rules of legal basis are relevant, there is not always an obligation to consult stakeholders
What are other EU constitutional law constraints regarding trade and envt? (4)
1/ EU Treaties set out both free trade & envtal goals and objectives (Art. 3(3)(5) TEU, Art. 21(2)(e-f) TEU)
2/ no hierarchy clauses
3/ but integration articles (Art. 11 TFEU)
4/ consistency required between different areas of external action (Art. 21(3) TEU)
Considerations on CBAM? (6)
1/ legal basis: Art. 192(1) TFEU
2/ producer-based measures
3/ carbon price for emissions embedded in imports
4/ aim: prevent carbon leakage
5/ scope: cement, electricity, fertilisers, steel, aluminium, hydrogen
6/ revenue will go to EU budget
What is attempt of Trade Policy Review of 2021?
Attempt to mainstream climate policy objectives across trade instruments
Examples of Trade Policy Review attempt to mainstream climate policy objectives across trade instruments? (6)
1/ sustainability elevated to defining feature of EU trade policy
2/ FTAs supposed to facilitate proliferation green technologies
3/ Paris Agreement commitments in all future FTAs
4/ emphasis on stronger enforcement
5/ sustainable investment initiatives aimed at Africa
6/ coordinating bilateral negotiations with unilateral instruments, initiatives in WTO
How are trade and sustainability commitments linked in practice?
Sustainability impact assessments for FTAs
Characteristics sustainability impact assessments (SIAs) for FTAs? (4)
1/ aim: promote evidence-based policymaking
2/ EC asks external consultant to measure envtal and societal impact of proposed FTA
3/ EC presents political framing of the consultant’s findings
4/ SIA to be conducted during trade negotiations so as to inform decisions of negotiators
Which example illustrates the problems with SIAs and their credibility?
EU-Mercosur AA
Why are SIAs problematic and lack credibility as illustrated by EU-Mercosur AA? (4)
1/ outcome FTA rarely corresponds to the various hypothetical scenarios with numerous variables in SIAs
2/ political framing is crucial: EC countered criticism about deforestation risks with arguments on regulatory capacity-building & unilateral EU policies, but it is questionable that the EU can influence domestic policies of 3rd country partners
3/ first SIA became obsolete, second SIA was finalised after end of negotiations
4/ Ombudsman: EC conduct constituted maladministration
What are potential conflicts regarding trade liberalisation and climate objectives? (4)
1/ energy chapters in FTAs facilitate trade in fossil fuels
2/ trade liberalisation in agricultural products creates incentives to pursue deforestation and increases transport emissions
3/ but, there are attempts to mainstream sustainability considerations across trade agreements
4/ however, hierarchy between potentially conflicting constitutional objectives is unclear
Examples of attempts to mainstream sustainability considerations across trade agreements? (3)
1/ regulatory cooperation and technology exchange on renewable energy (EU-Chile, EU-NZ FTAs)
2/ sustainability considerations in public procurement
3/ access to raw materials needed for green transition (EU-Chile FTA)
Which instrument illustrates an attempt to foster envtal protection as complementary to trade liberalisation?
TSD chapters in recent FTAs
