International Environmental Agreements

Published by Springer Nature

Online ISSN: 1573-1553


Print ISSN: 1567-9764


Environmental policy implications of investor-state arbitration under NAFTA Chapter 11
  • Article

June 2007


69 Reads

Sanford E. Gaines
Chapter 11 of the North American Free Trade Agreement requires governments to treat foreign investors the same as domestic investors, to afford them international standards of due process of law, and to compensate investors for any actions that expropriate their investments or are “tantamount” to expropriation. It allows foreign investors to submit compensation claims to international arbitration. To the alarm of the environmental community, four of the early Chapter 11 claims involved challenges to government measures that were, or appeared to be, environmental protection measures. The first three of the four claimants ultimately received compensation; the fourth claim was denied as being outside the scope of Chapter 11. This paper takes an in-depth look at the circumstances of these four claims to determine whether the claimants had thwarted or avoided bona fide environmental protection measures and to try to assess whether these claims have “chilled” government imposition of new environmental measures. The facts of the cases and developments subsequently indicate that the government actions in the first three cases were not truly environmental protection measures, but were motivated by local political and economic considerations. The fourth claim, which involved a bona fide environmental protection, was rightly rejected. Meanwhile the number of “environmental” claims under Chapter 11 has dwindled. The paper concludes that environmentalists have little ground for alarm, and much reason to be encouraged, about how Chapter 11 has influenced environmental protection.

Fig. 1 The Rhine catchment area. Source Drafted for the author by the Cartographic Laboratory of the Faculty of Geosciences of Utrecht University 2010  
Fig. 2 Chloride loads and concentrations at the Dutch border. Source RIWA 2009  
International water negotiations under asymmetry, Lessons from the Rhine chlorides dispute settlement (1931–2004)
  • Article
  • Full-text available

May 2011


234 Reads

Negotiations concerning the quality of international rivers are not easy, as incongruence in preferences between upstream and downstream countries generally exists. The Rhine Chlorides dispute is a clear example of this. The chloride issue has been on the international water agenda of the Netherlands and the upstream Rhine riparian states for more than 70years. The aim of this paper is to give a historical overview of the settlement of the Rhine chlorides dispute in order to draw some lessons for negotiators who have to work under comparable conditions of asymmetrical international water pollution. The case not only shows the complexities in reaching acceptable solutions for asymmetrical transboundary pollution, but also the importance of sound argumentation, institutions, side payments, issue framing, issue linking and arbitration. KeywordsRhine–Dispute settlement–Water pollution–Water quality–Negotiations

Genesis of the CDM: The original policymaking goals of the 1997 Brazilian proposal and their evolution in the Kyoto protocol negotiations into the CDM

March 2012


51 Reads

A body of literature is emerging applying critical consideration to the Kyoto Protocol Clean Development Mechanism’s (‘CDM’) achievement of policy goals regarding sustainable development, geographical distribution of projects and related matters. This article places this literature in the context of the policymaking goals of the CDM’s Brazilian architects. The CDM arose from the Brazilian Proposal’s Clean Development Fund, and was negotiated between Brazil and the United States in the weeks preceding the Kyoto Conference of Parties. The CDM’s Brazilian architects continued to pursue their underlying policy goals by taking a leadership position in the Marrakesh Accords negotiations. During this period Brazil’s primary policy objectives comprised achieving meaningful mitigation of GHG emissions to avoid dangerous interference with the climate system, derailing a perceived US/IPCC initiative to allocate emissions cap obligations in the Kyoto Protocol on the basis of current emissions, and taking a leadership position both among the G-77 and China and in the multilateral climate negotiations as a whole. The CDM arose in this context from the G-77 and China’s desire to coerce the North’s compliance with the North’s emissions cap obligations through an alternative means of compliance. As a result, there was no focus on broad conceptions of sustainable development, or on broad distribution of CDM projects throughout the South. Instead, the CDM’s Brazilian architects envisioned that CDM-related sustainable development would arise exclusively from the presence of the CDM projects. Similarly, the Brazilian Proposal advocated allocation of the Clean Development Fund on a basis proportionate to each non-Annex I countries projected 1990–2010 greenhouse gas emissions. These views persisted through the evolution of the Clean Development Fund into the CDM and through Marrakesh Accords negotiations. This article argues that the CDM has largely met the policy goals of its Brazilian architects and that the pursuit of different, additional, refined or more nuanced policy goals necessitates corresponding refinements to the CDM, or any successor mechanism, specifically targeting those different, additional, refined or more nuanced policy objectives, lending support to the emerging literature proposing changes to the CDM to pursue corresponding policy objectives. KeywordsBrazilian proposal–CDM–Clean development fund–Clean development mechanism–Climate change–Kyoto protocol–Sustainable development

Russia’s role in UNFCCC negotiations since the exit of the United States in 2001

June 2010


216 Reads

The unexpected exit of the United States from the Kyoto Protocol in 2001 signaled the exponential increase in the importance of the Russian Federation as a key player in international climate change politics. Until then a relatively minor player, Russia’s active participation in the evolution of the climate change regime is now considered a paramount and immediate necessity. A longitudinal study of Russian climate policy over the years is therefore a highly useful exercise as it allows for the better understanding of current developments and provides some basis for prediction of its future actions. The primary aim of this article is threefold: First, to offer a comprehensive account of Russian involvement in international climate negotiations. Secondly, to clarify the actual reasons behind Russia’s decision to delay its ratification of the Protocol for almost three long years, and finally, to try and map out the post-2012 positions of Russia on the road to the 2009 Copenhagen Conference of the Parties.

The civil liability of European nuclear operators: Which coverage for the new 2004 Protocols? Evidence from France

September 2008


116 Reads

In Western Europe, the nuclear liability is governed by two international conventions, drafted by the Nuclear Energy Agency of the OECD: the Paris (1960) and Brussels (1963) Conventions. These conventions traditionally limited the liability of the nuclear power plant operators to relatively low amounts. In France, the liability of the (state owned) operator of €91million is covered by insurance (for €31million) and reserves (for €60million). A recent modification to the conventions occurred in 2004 and increased the liability limit to €700million. In this paper we aim to evaluate the costs for covering the increased liability for the nuclear risk after the introduction of the 2004 amendments. In order to do so, we calculate the actuarial insurance premium for the nuclear risk and find that the current premium charge is very large. The paper tries to explain the high price of nuclear liability insurance. Also the costs of the own reserves for the coverage of potential nuclear accidents are examined. We then aim to evaluate the different options (mostly insurance and reserves) and indicate the optimal combination of both instruments to cover the future operators’ liability limit, introduced by the latest 2004 amending Protocols.

A Clean Development Mechanism with global atmospheric benefits for a post-2012 climate regime

May 2009


34 Reads

The Clean Development Mechanism (CDM) under the Kyoto Protocol allows the crediting of emission reductions from greenhouse gas (GHG) abatement projects in developing countries. The CDM is an offsetting mechanism and, in principle, a zero game to the atmosphere: emission reductions achieved from CDM projects allow industrialised countries to increase their emissions, respectively. The article explores how the CDM could be moved beyond a pure offsetting mechanism in a post-2012 climate regime by crediting only a fraction of the emission reductions from CDM projects, thereby providing a net atmospheric benefit. Potential implications on the carbon market are assessed in a qualitative manner and different design options for such a reform to the CDM are discussed. An important conclusion is that the effects on carbon market depend considerably on whether the use of the CDM is limited through caps or not.

Table 2 : Combined GDP and emissions per capita thresholds (2000 data) 
Table 4 : Institutional graduation 
Table 5 : Current Annex B target allocation for the second commitment period 
Table 8 : Emission targets for Non-Annex B countries 
Graduation and Deepening: An Ambitious Post-2012 Climate Policy Scenario

January 2005


155 Reads

In the second commitment period 2013–2017, the Kyoto Protocol structure is strengthened considerably. The current Annex B countries agree to reduction targets averaging 23% reductions from 1990 level. This induces non-Annex B countries to take up emissions targets according to a multi-tiered graduation system. Graduation is undertaken according to thresholds defined by per capita GDP and emissions. Compared to the current Annex B, coverage of emissions by absolute caps would increase by about 25%; large low-income countries such as India and China do not graduate. Therefore, large emitters above 50 million t. p.a. can utilise a policy-based Clean Development Mechanism. Sinks of all types – terrestrial, marine and geological can be used. To achieve this policy scenario, voter pressure due to extreme meteorological events and a coordination of all progressive forces in the international climate negotiations are necessary. Moreover, a judicious combination of carrots and sticks has to be developed to entice Non-Annex B countries to graduate.

Issues and Options for the Post-2012 Climate Architecture – An Overview

March 2005


55 Reads

This article provides a background for the Developing post-2012 scenarios project, an international study which looks at a range of scenarios that countries may wish to consider for a post-2012 framework to tackle climate change. The purpose of the article is threefold. Firstly, it provides a review of the literature for the future climate regime. Secondly, it provides a set of criteria that are used in order to evaluate whether the scenarios provided in the other articles in this Special Edition are likely to be effective. Thirdly, the article spells out some of the more general policy implications rising from these scenarios.

Table 1 Sites of global climate governance 
Beyond the Public and Private Divide: Remapping Transnational Climate Governance in the 21st Century

December 2008


174 Reads

This article provides a first step towards a better theoretical and empirical knowledge of the emerging arena of transnational climate governance. The need for such a re-conceptualization emerges from the increasing relevance of non-state and transnational approaches towards climate change mitigation at a time when the intergovernmental negotiation process has to overcome substantial stalemate and the international arena becomes increasingly fragmented. Based on a brief discussion of the increasing trend towards transnationalization and functional segmentation of the global climate governance arena, we argue that a remapping of climate governance is necessary and needs to take into account different spheres of authority beyond the public and international. Hence, we provide a brief analysis of how the public/private divide has been conceptualized in Political Science and International Relations. Subsequently, we analyse the emerging transnational climate governance arena. Analytically, we distinguish between different manifestations of transnational climate governance on a continuum ranging from delegated and shared public–private authority to fully non-state and private responses to the climate problem. We suggest that our remapping exercise presented in this article can be a useful starting point for future research on the role and relevance of transnational approaches to the global climate crisis.

The Group of 77 in the International Climate Negotiations: Recent Developments and Future Directions

January 2008


1,156 Reads

First, we describe and analyze the main set of G77 positions in the climate negotiations and the dynamics behind the emergence of these positions. While it is puzzling that the G77 has managed to maintain itself as a group in spite of internal differences along variables as prosperity, emissions and vulnerability to climate change, we claim that a core element behind this cohesion is that these countries share domestic governance problems as much as poverty and economic underdevelopment. Second, we discuss how recent trends of economic and political development in the third world influence the climate policy strategies of the G77 group in the future. The main factor here is the economicand social progress in states like China, India and Brazil, which separates them from the poorer and less powerful G77 states. Increasing heterogeneity along variables like governance, growth, and importance for the international economy is creating an increasing drive among the most successful G77 states towards bilateral agreements with industrialised powers. We do not foresee a departure from traditional G77 positions and membership by these states in the official climate negotiations or a departure from the Kyoto process, but an increasing reliance on bilateral agreements with industrialized countries that link considerations for energy security and the environment. The ability to gain these advantages without commitments may make these states less interested in adopting commitments for the post-Kyoto period. This is unfortunate for the LDCs and the AOSIS groups within the G77, who probably are most vulnerable to climate change.

Accountability in Governance: The Challenge of Implementing the Aarhus Convention in Eastern Europe and Central Asia

September 2004


101 Reads

The signing of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) radically extended international law on transparency and accountability in environmental governance. For the countries of Eastern Europe, Caucasus and Central Asia (EECCA) that have now ratified, the Convention could prompt profound democratic changes. This article, based on the authors' experiences, analyses changing cultures of governance in EECCA countries. The first so-called pillar of access to information sets in place rights that directly contradict the fundamental secrecy of the former Soviet Union countries. Some officials' reluctance to share environmental information may also be linked to the economic duress of the current transition period, where information may be an official's only asset. The second pillar of public participation also poses difficulties for officials for whom the highest praise is to be considered a professional. In their belief that no one knows better than they do, they are reluctant to spend time and resources to make decision-making transparent and to involve the public. The third pillar of access to justice breaks new ground for post-socialist countries still developing their judicial systems. Though several highly sophisticated NGOs have been successful in using courts, it remains difficult for an ordinary EECCA citizen to bring an environment-related legal action. Changing these attitudes and practices will be a long and troublesome process. The Aarhus Convention will not be truly implemented until openness, transparency and accountability in environmental decision-making become everyday habits.

An Evaluation of Pre-Kyoto Differentiation Proposals for National Greenhouse Gas Abatement Targets

March 2004


32 Reads

Although the Kyoto Protocol has set a precedent for future climate negotiations, particularly with respect to differentiation of targets between countries, the current approach is likely to be insufficient as a foundation for future targets. A more systematic approach is deemed necessary to meet the challenges of negotiating new targets after 2012 as well as involving the USA and perhaps developing countries. We argue that better negotiation tools can be helpful in this regard. We thus present an overview of more systematic differentiation methods for national greenhouse gas reduction targets. We draw from the proposals that were submitted in the climate negotiations from 1995 to 1997 leading up to the Kyoto Protocol, the EU's Triptique approach for internal differentiation of targets, and three proposals discussed in the literature on fairness principles. The most promising and helpful proposals for future negotiations are given particular attention: the second proposal by Japan, the French proposal, the Norwegian proposal, the Brazilian proposal, and Triptique. A numerical illustration of the former three together with the Sovereignty, Egalitarian, and Ability to Pay fairness principles is provided. Using resemblance to the Kyoto Protocol to measure political feasibility, we find that the proposals rank in the order; (1) the second Japanese; (2) the French; (3) the Norwegian; (4) the Sovereignty; (5) the Ability to Pay; and (6) the Egalitarian, the last being particularly infeasible.

Speaking Their Language: How to Communicate Better with Policymakers and Opinion Shapers – and Why Academics Should Bother in the First Place

December 2005


81 Reads

Scholars of international environmental politics who want their work to affect policy must learn to speak and write in a slightly different language – with extreme concision, an appealing format, and ready solutions to pressing policy questions. While communicating directly with policymakers and journalists can be time-consuming and exasperating, the direct approach may be the only way to rise above the din of the increasingly noisy marketplace of ideas.

Access and allocation in earth system governance: Water and climate change compared

December 2010


163 Reads

A significant percentage of the global population does not yet have access to safe drinking water, sufficient food or energy to live in dignity. There is a continuous struggle to allocate the earth’s resources among users and uses. This article argues that distributional problems have two faces: access to basic resources or ecospace; and, the allocation of environmental resources, risks, burdens, and responsibilities for causing problems. Furthermore, addressing problems of access and allocation often requires access to social processes (science, movements and law). Analysts, however, have tended to take a narrow, disciplinary approach although an integrated conceptual approach may yield better answers. This article proposes a multi-disciplinary perspective to the problem of access and allocation and illustrates its application to water management and climate change. KeywordsClimate change-Distributive issues-Human rights-Social justice-Water governance

Challenges and prospects of implementing the access and benefit sharing regime of the Convention on Biological Diversity in Africa: The case of Ethiopia

September 2010


501 Reads

An analysis of the implementation of the access and benefit sharing (ABS) regime under the Convention on Biological Diversity and other related regimes in Africa and, in particular, Ethiopia, reveals the following challenges: (a) centralization of power in the hands of the federal government with little attention to regional and local governments; (b) lack of effective mechanism for the participation of communities in ABS; (c) generality and vagueness of the regulatory regime and lack of regulations and guidelines for the effective implementation of the regulatory regime, (c) poor drafting of ABS Agreements; and (d) lack of effective enforcement and follow-up mechanisms for ABS Agreements. Nonetheless, despite the shortcomings, the article suggests that Ethiopia’s experience provides an important lesson for other countries confronted with the challenge of designing fair genetic resource governance at the national level and, more importantly, shows the challenges poor countries face in developing and implementing ABS Laws and in negotiating, concluding and enforcing ABS Agreements. KeywordsAccess and benefit sharing-Genetic resources-Convention on Biological Diversity intellectual property rights-Prior informed consent

Top-cited authors