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.
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
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
KeywordsBrazilian proposal–CDM–Clean development fund–Clean development mechanism–Climate change–Kyoto protocol–Sustainable development
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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