Strengthening Legal Analysis, Engagement, and Capacity for High Climate Ambition Commitments to Sustainability in Refining and Implementing EU-Americas Trade Treaties

This project aimed to provide legal analysis to engage informed legal communities of practice to promote the highest level of climate ambition and sustainable development in the negotiation, interpretation, and implementation of existing EU trade treaties with the Americas, and in post-treaty application through joint decisions and other institutional collaborations. Another pillar of the project was the publication of ongoing analysis in a scholarly professional journal.

The project sought, among other things, to understand the potential of non-amendment options to advance the climate action agenda, ie, achieving countries’ Nationally Determined Contributions (NDCs) under the Paris Agreement as part of the global sustainability agenda. Both the EU and its trading partners are often blocked by long, difficult drawn-out political nature of reopening negotiations for the legal amendment of an FTA. One of the key achievements of the analysis, research and dialogue was the identification, by the CISDL team, of other implementation and interpretive guidance tools to upgrade trade relationships for climate change and sustainability objectives, working from already-available governance structures under the accords. It found that to address climate change and sustainability challenges in the trade relationship between the EU and its trading partners, in some cases additional provisions or amendment of the FTA itself can be avoided. Rather, the research from the CISDL project found that interpretive understandings, treaty committee and council decisions can be adopted to advance climate change and other sustainability objectives.

Objectives

Roundtables and Events 

Net Zero: What Implications for UK Trade Policy? (TaPP) (April 2023)

Professor Markus Gehring shared findings in the Trade and Public Policy Network (TaPP) workshop, held on the 21st of April 2023, discussing what the pursuit of Net Zero means for UK trade policy and this report provides a summary of the discussions. The workshop included interventions from Andrew Lang (University of Edinburgh), Kateryna Holzer (University of Eastern Finland), Aik Hoe Lim (World Trade Organization), Markus Gehring (University of Cambridge), and Emily Faint (British Standards Institution). Professor Gehring argued that the analysis of Nationally Determined Contributions (NDCs) revealed that 108 (of 184) contained policy measures on trade and external investment. However, the disconnect between trade and climate policy communities persists. Some FTAs do link to NDCs, including the EU-UK TCA, which incorporates aspects of NDCs (although the commitments are less ambitious). Closer alignment is yet to happen. For instance, in trade negotiations, countries could look at each other’s NDCs and identify the aspects that are useful to the partnership and weave obligations into trade agreements, thereby aligning trade agreements with NDCs. He explained that alignment of trade and climate commitments might sound straightforward, but it is quite controversial. Trade negotiators are often unaware of the content of NDCs and the commitments their countries have made, and at UNFCCC meetings trade is hardly mentioned. Trade is seen as a sensitive subject and knowledge of trade among policymakers involved in COP processes is weak. The trade and climate coalition (“The Coalition of Trade Ministers on Climate”) generated an enlightened discussion but only a few countries were part of the discussions coalition.

International Trade Law, Governance & Climate Change: Role, Potential and Interaction (July 2023)

Professor Marie-Claire Cordonier Segger, Professor Markus Gehring and others, during the 25th of July 2023 on the “International Trade Law and Governance and Climate Change – role, potential and interaction” panel organized by the University of Singapore, argued that states can adapt or adopt trade rules and policies with climate change and sustainable development more broadly in mind, under the premise that not all FTAs are in line with the ojectives of the Paris Agreement.

Climate & Sustainability in Global Trade Law (Sept 2023)

During the 12-15 of September 2023 WTO Public Forum, Project Manager Adv Marios Tokas held consultations with representatives of the Green Trade Network, the Geneva Trade Platform, and the Jacques Delors Institute to discuss the possible collaborations and get feedback from recent publications.

Climate & Sustainability in FTA Treaty Practice, Implementation & Governance (Nov 2023) 

On the 24th and 27th of November, during two high-level panels, CISDL delivered initial findings from two main reports. In the two round tables, these findings were informed by engagement of various experts from Latin America and New Zealand.

On the 24th of November, the CISDL organized the first session of the round tables. In this session, experts from the CISDL addressed the trade relations between the EU and New Zealand, EU-Mexico, and reviewed the Policy Paper on the Interrelation between the Paris Agreement and EU FTAs. Expert  The roundtable concluded with the presentation of a Policy Paper on EU FTAs, the Paris Agreement, and various aspects of Latin America.

Reports addressed issues such as aligning obligations and strategies for harmonizing FTA commitments with those of the Paris Agreement, ultimately boosting climate ambition within developing countries. The paper also explores ways in which trade agreements can co-exist harmoniously with the diverse and evolving demands of the Paris Agreement.

The rich discussions centered on broad, identifiable themes. The first of which was ambition and enforceability. The is, many of the EU FTAs set ambitious goals but raises questions about how these will be enforced and whether “defeating the purpose” provisions are truly enforceable. Connecting to the enforcement issues that could arise, a second theme present were the practical challenges. Potential concerns about trade disputes under climate provisions could dampen ambition while calculating retaliation measures presents practical difficulties.

 Another common theme highlighted by the CISDL experts as well as the community of practice was the attention around the existing frameworks and scope for action. That is, leveraging existing councils and cooperation mechanisms could offer avenues for strengthening climate commitments. In this vein, civil society participation was seen as essential to ensure diverse and secure participation of civil society, especially vulnerable groups, is crucial for effective implementation.

At the same time, however, the Global South realities have to be realistically taken into account. Balancing stricter non-regression provisions with flexibilities for developing countries and addressing concerns about EU-centred measures are critical considerations. Under this broad theme, experts highlighted that the negotiations and trade partnerships must go beyond the application of sanctions. Exploring different committee functions and soft enforcement approaches could prove more effective than solely relying on sanctions.

On November 27th, the CISDL team held a second round table. On this session, experts from the CISDL addressed the trade relations between the EU and Chile, Andean Community (Bolivia, Colombia, Ecuador, Peru), and Mercosur (Brazil, Paraguay, Uruguay, Argentina), and Central America (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, Panama). Expert Javiera Cáceres Bustamente presented her findings related to the EU-Chile, and EU-Andean Community Agreements; Prof. Alessandra Lehmen and Matheus Garcia presented on the EU-Mercosur Agreement; and Professor Jorge Cabrera revealed his findings for EU-Central America.

Once again, broad themes were observed in the sessions. Many of the discussants questioned what were the roles of the TSD chapters in light of these new unilateral strategies of the EU, such as the Carbon Border Adjustment Mechanism (CBAM) or the Deforestation Regulation. While invoking the latter, the intervenors questioned the possibility of applying sanctions within the framework of the EU FTAs. The experts from the CISDL noted that the use of unilateral measures can risk antagonizing the EU trading partners in Latin America. The most recent example of backlash came from the Mercosur countries.

Discussions also revolved around the institutional elements of the FTAs. Particularly, the intervenors underlined the importance of the parties’ domestic advisory groups (DAG), which are bodies that serve to advise on the implementation of the trade agreement or parts of it. It was noted that a careful look into the domestic situation, as reflected in the DAGs, can shed light on a different reality. In this sense, further clarification can be provided about the reality of the implementation of EU trade agreements in Latin America.

Similarly, it was noted that cooperation between the parties was also a section of the agreements where attention should be given. Intervenors noted that the domestic advisory groups frequently request more cooperation from the EU bodies. That is, civil society must be engaged in this process and given a voice. In this sense, participants noted that the EU has reinforced its commitment to engage in cooperation mechanisms with its parties.

Further in the sessions, the intervenors noted that there is a general unease in Latin America – particularly in the Mercosur – about possible sanctions that the EU could apply if the environmental provisions are not respected. According to the participants of the community of practice, this could create political backlash against the agreement and risk the sustainability agenda forward.

It was also pointed out that focusing all of the attention, in terms of compliance with sustainable development goals, in the EU FTAs is not enough. For a comprehensive and cohesive achievement of the sustainable development goals, a more overarching perspective is needed.

Cooperation in areas such as water, climate change education, and energy with EU countries is already happening, but its intensification was encouraged. Discussions also centred on the fact that various high international courts are now addressing the issue of climate change. The intervenors noted that these opinions related to climate change can be leveraged to address many other issues, including the rights of indigenous people in Central America.

Climate Law & Governance at COP28 in Dubai (Dec 2023)

The event focused on “Engaging in Global Stocktake through Legal Lenses” in conjunction with the United Nations Framework Convention on Climate Change 28th Conference of the Parties (COP) in Dubai. The CISDL organized a Panel entitled “Promoting Climate Action through Trade Law”. ECF CISDL Project panel experts included:

Trade and Finance Flows: Pathways for implementing the Outcomes of the First Global Stocktake (Dec 2023)

On the  6th of December, in the Philippines Pavillion at COP28, Professor Markus Gehring participated in a Panel organized by the National University of Singapore. Gehring shared thoughts on the role and potential of trade policy and international trade governance regimes to address global problems of combat climate change and achieve a more sustainable future. Discussions centered on how the global stocktake, as a legal and policy process, can aid Parties in enhancing their national commitments with the promise of Paris-aligned consistent financial flows. The experts examined developments in the international governance framework, including trade and investment rules, developments in FTA practice, and the global disclosure systems in meeting the goals of the Paris Agreement. The Panel was moderated by Danielle Yeow, together with Prof Dan Etsy, Ma. Corazon H. Dichosa, Petra Minnerop, and Amir Sokolowski.

Professor Marie-Claire Cordonier Segger and Professor Markus Gehring also taught at the “Climate Law and Governance Legal Specialisation Course 2023”, held on December 7th, 2023, and offered by the partnership with the CISDL & International Union for Conservation of Nature World Commission on Environmental Law (IUCN WCEL). At the intense, one-day event, participants had the opportunity to deepen their comprehension of the legal and institutional mechanisms available to implement their NDCs and the Paris Agreement. At the same time, the highlighted many of the challenges that the global climate governance faces.

13th Ministerial Conference of the World Trade Organization (WTO) in Abu Dhabi (Feb 2024)

Further, the CISDL organized a high-level panel in the “Trade and Sustainability Hub” organized by the International Institute for Sustainable Development (IISD), at the margins of the World Trade Organization (WTO) Ministerial Conference (MC13) in Abu Dhabi. The panel, entitled “Balancing Climate Change Commitments in EU Free trade Agreements”,enabled the CISDL team to share their recent findings on the two main reports, with the implementation of the comments contributed by the community of practice after the round tables in November. As a result, consultation insights and comments – offered by the experts, delegates, and members of the private sector – were provided to the team. Experts in the panel included:

During MC13, the CISDL team also had the opportunity, together with the Green Trade Network and E3G, to meet with two delegations from EU Member States. The first of which was the Belgian Delegation, including Christophe Payot and Tine Jacobs. Members that were present from the CISDL team – Markus Gehring, Marios Tokas, and Matheus Garcia – had the opportunity to engage with the delegation to the state of play of MC13 at that particular point in the negotiations. Topics included trade & environment, dispute settlement, trade & health, among others.

The second consisted of the French delegation present at MC13, including Muriel Lacoue-Labarthe (Deputy director general at the French Treasury), Thomas Brisset  (Head of the International Trade and Investment Rules Office at the French Treasury), and François Bazantay (Adviser in charge of the Trade Department at the Permanent Representation of France to the European Union). Members that were present from the CISDL team – Markus Gehring, Marios Tokas, and Matheus Garcia – had the opportunity to engage with the delegation to the state of play of MC13 at that particular point in the negotiations.

Discussions also surrounded the reaction of developing countries to the mirror measures of the EU, such as CBAM and the deforestation regulation. Members of the French delegation also shared their views on the course of the EU-Mercosur negotiations.

Finally, the CISDL team – represented by Prof. Ilaria Espa – met with Deputy Director General (DDG) Jean-Marie Paugam. The fruitful discussion with DDG Amb. Paugam addressed various topics related to the outcome of MC13.

Climate Change and the Sustainable Development Goals: Future Directions for International Law and Governance at the Lauterpacht Centre for International Law (March 2024)

 

As a follow-up from the UNFCCC COP and CLGD2023, Members of the CISDL – including Professor Marie Claire Cordonier Segger and Professor Markus Gehring – participated on March 7th on ‘Climate Change and the Sustainable Development Goals: Future Directions for International Law and Governance’. The event was held by partners from the University of Cambridge, the University of Dubai, and Middlesex University Dubai.

The event – held both in-person at the Lauterpacht Centre for International Law in Cambridge and online – was an opportunity to discuss COP28 and its outcomes and legal impacts are shaping the international legal regime on climate change.

Restructuring the International Trade System for Climate Change Progress and a Sustainable Future (May 2024)

On the 8th and 9th of May 2024, Professor Cordonier Segger, together with experts and academics, participated in a one-day event entitled “Restructuring the International Trade System for Climate Change Progress and a Sustainable Future“, hosted by the Remaking Trade Project in collaboration with E3G, ODI, and the European Climate Foundation (ECF). Through a series of workshops, the event brought together various from government, business, and civil society to review global progress on trade and climate issues. There were also follow-up interviews with James Bacchus, Jan Yves Remy, and Ricardo Meléndez-Ortiz where the findings of the CISDL reports were shared with international trade law experts.

Globalisation, Sustainability and the Power of Ideas Lecture Series (July 2024 future)

Project reports are also influencing the planning the “Globalisation, Sustainability and the Power of Ideas”, which this year will be delivered  by Dr. Ngozi Iweala-Okonjo, Director General of the World Trade Organisation. The event will take place on the 19th of July 2024. 

Project Team 

Lead Researchers

Project Manager

Adv. Marios Tokas 

Project Coordinator

Mr. Matheus Garcia

Researchers

Prof. Javiera Paz Cáceres

Prof. Jorge Cabrera

Ignacio Sánchez

Prof. Alessandra Lehmen

Christian Delev

Prof. Ilaria Espa

Tracey Epps

Community of Practice

Jan Yves Remy, Director SRC UWI, Trade Lawyer

María Amparo Albán, Founder member, Inter-American Institute for Justice and Sustainability – IIJS

Nicola Swan, Partner at Chapman tripp

Tobias Stoll, Professor University of Gottingen

Kate Wilson Butler, Director – Climate, Sustainability & ESG at chapman tripp

Rosi Amerena Amigo, Founder member of the executive committee of Chapter Zero Mexico

Yilly Vanessa Pacheco, Senior Research Fellow, Georg-August University of Göttingen, Germany

Geraldo Vidigal, Assistant Professor, University of Amsterdam

Yasmin Granados Torres, Universidad de Costa Rica

Yves Hayaux-du-Tilly, Co-president of Chapter Zero Mexico

Federico Peralta-Bedoya, Attorney, Environmental consultant & Climate Law and Governance Specialist

Julieta Zelicovich, Adjunct Professor at the Universidad Nacional de Rosario, Argentina

Publications