Avidan Kent

Keeping Up with the Changing Climate: The WTO’s Evolutive Approach in Response to the Trade and Climate Conundrum:A Comment on Canada – Certain Measures Affecting the Renewable Energy Sector

Canada – Certain Measures Affecting the Renewable Energy Sector (Canada FIT), appears to be the first-ever case at the World Trade Organization (WTO) to address the tenuous ‘trade versus climate’ debate in the context of renewable energy policies. Feed-in Tariffs (FIT) for renewable energy, which have emerged as a popular domestic policy tool to address climate change, share an extremely controversial relationship with the international trade regime, especially with the legality of such support schemes increasingly coming under the WTO scanner. In this article, the authors focus on four aspects that emerge from the decisions made by the WTO’s Panel and Appellate Body in this case, namely the clarification of the blurred legal status of renewable energy support schemes under WTO law; a new ‘public goods’ exception; an evolving, “activist” WTO jurisprudence; and the imminent end of domestic content requirements in renewable energy policies. The authors argue in this article that the WTO Panel and Appellate Body’s decisions represent a development of the law, one that is aimed at settling the ever-so-contentious clash between the WTO law on subsidies and climate change support schemes.

Implementing the principle of policy integration: institutional interplay and the role of international organizations

Abstract The implementation of the sustainable development principle of integration implies that economic laws should not be designed solely for the purpose of maximizing financial profits, but also with the object of improving human well-being, and addressing social and environmental concerns. International organizations, in which international treaties are being negotiated and created, will have to support this type of cross-disciplinary approach. International institutions, however, were not originally designed to cope with such a cross-disciplinary effort. Rather, most international institutions have emerged in line with the premise of ‘functionalism’, according to which their role is limited to supplying specialized services, usually as a solution for emerging needs and as a result of historical events. These specialized institutions have thus emerged with little coordination or common planning and have resulted in a global structure that has been referred to as an ‘accident of history’. The role that international organizations should and do fulfil with respect to the implementation of the principle of integration is reviewed in this paper. This paper concentrates on trade and investment organizations (the World Trade Organization and the Energy Charter Treaty); it reviews the channels through which non-trade/investment considerations may, or may not, penetrate the decision-making processes of these organizations; the ways these International organizations engage with interdisciplinary issues and how the objectives of other institutions are reflected in their work.

Climate Refugees: Beyond the Legal Impasse?

Current estimates of the numbers of people who will be forced from their homes as a result of climate change by the middle of the century range from 50 to 200 million. Therefore, even the most optimistic projections envisage a crisis of migration that will dwarf any we have seen so far. And yet attempts to develop legal mechanisms to deal with this impending crisis have reached an impasse that shows little sign of being overcome. This is in spite of the rapidly growing academic study and policy development in the area of climate change generally. Climate Refugees: Beyond the Legal Impasse? will address a fundamental gap in academic literature and policy making; namely the legal ‘no-man’s land’ in which the issue of climate refugees currently resides. Past proposals for the regulation of climate-induced migration are evaluated, inter alia by their original authors, and the volume also looksat the current attempts to regulate climate-induced migration, including by officials from the International Organisation for Migration (IOM), the office of the United Nations High Commissioner for Refugees (UNHCR) and the Platform on Displacement Disaster (DPP). Bringing together experts from a variety of academic fields, as well as officials from leading international organisations, this book will be of great interest to students and researchers of Environmental Law, Refugee Law, Human Rights Law, Environmental Studies and International Relations.

The Management of Third-party Amicus Participation before International Criminal Tribunals: Juggling Efficiency and Legitimacy

Our article examines the practice of third-party amicus participation before international criminal tribunals (ICTs) and considers its impact on the efficiency and legitimacy of the international criminal process. Our review focuses on the provenance of third-party interventions, their nature and their impact (if any) on the reasoning of the ICT in a given case. We note that a significant proportion of the amicus submissions are from western non-governmental organizations and individuals, rather than from the communities most directly affected by the work of ICTs. We consider the implications of this finding in the context of the well-documented ‘image problems’ that plague ICTs. We find that ICTs tend to manage the participation of third-party amici fairly judiciously, and conclude with some suggestions regarding how the engagement between ICTs and amici could be improved to enhance both the efficiency and the legitimacy of international criminal proceedings.

International Law Scholars as Amici Curiae: An Emerging Dialogue (of the Deaf)?

International law scholars frequently seek to participate in international legal proceedings as amici curiae. Often they do so by ‘piggy-backing’ onto the submissions of NGOs and other advocacy groups. Occasionally – but increasingly in recent years – they do so in their own names, purporting to offer ‘pure’ academic expertise, and generating certain expectations of scholarly neutrality. This article focuses on the latter trend, which the authors argue has the potential to re-shape the scholar-adjudicator dialogue in interesting ways. Under the traditional approach towards ‘teachings’, the decision of whether, how and with whom to engage is firmly in the hands of the adjudicators. The proliferation of academic amicus briefs threatens to disrupt this arrangement. It also brings certain benefits: the briefs are often more ‘on point’ than doctrinal writings, while openness to unsolicited academic submissions encourages plurality and reduces reliance on reputation as a measure of scholarly quality. Our survey of the emerging practice across various international courts and tribunals indicates that adjudicators tend to be reticent when it comes to the reception of unsolicited academic amicus briefs. However, we identify several instances of productive engagement. This leads us to conclude that it would be unduly gloomy to characterise the emerging practice as a ‘dialogue of the deaf’. A fairer assessment would be that the academic amicus trend is bringing about a modest adjustment in the way that international law scholars and adjudicators engage with each other.

Innovative Regulatory Frameworks Promoting Green Economy for Sustainable Development and Poverty Eradication in Europe

The political Rio 20 Declaration challenges lawyers and legal professionals around the world to think creatively about the legal preparedness for the green economy. To this end, this study focuses on highlighting the legal changes that are being adopted in Europe, at national and regional levels, to facilitate the transition to a greener economy. The purpose is thus to point out the challenges that domestic governments face in transitioning to a greener economy and to research the means by which these challenges can be met. This compendium gathers recent practices in legal and institutional reform that exemplify promising methods of addressing green economy measures.

A State of Necessity: International Legal Obligations in Times of Crises

The purpose of the necessity doctrine is to assist countries in dealing with crises. The necessity doctrine allows, under certain conditions, a State to breach its international obligations in order to cope with the crisis it faces. The conditions of the necessity doctrine have been, and continue to be, clarified by international bodies such as the International Law Commission, and adjudicative tribunals such as the International Court of Justice. In recent years, the necessity doctrine has been the center of several international investment law cases, mainly following Argentina’s financial crisis. The application of the doctrine’s conditions by some of these tribunals has not been uniform, and has been criticized by academics and practitioners. This article provides an overview of the necessity doctrine and asks whether it can be used to justify measures concerning some of the near future’s most urgent challenges. Le but de la doctrine de la nécessité est d’aider les pays à composer avec les crises. La doctrine de la nécessité permet à un État, sous certaines conditions, de déroger à ses obligations internationales afin de pouvoir faire face à la crise à laquelle il est confronté. Les conditions de la doctrine de la nécessité ont été, et continuent d’être, précisées par des organismes internationaux comme la Commission du droit international et des tribunaux pouvant rendre des décisions exécutoires comme la Cour internationale de Justice. Depuis quelques années, la doctrine de la nécessité a été au coeur de nombreux cas visant le droit des investissements internationaux, principalement après la crise financière en Argentine. Certains tribunaux n’ont pas appliqué les conditions de la doctrine de manière uniforme, ce qui a été critiqué par des universitaires et des avocats. Le présent article offre une vue d’ensemble de la doctrine de la nécessité et demande s’il est possible de l’utiliser pour justifier le recours à des mesures visant certains des défis les plus urgents dans un proche avenir.

Evolution in Investment Treaty Law and Arbitration: The plea of necessity under customary international law: A critical review in light of the Argentine cases

Introduction Necessity, it is often said, is the mother of invention. However, in the context of international law, and the tribunals which apply and interpret it, perhaps it is more appropriate to say that necessity is the source of an exception, one that is meant to preclude the wrongfulness of conduct by States in times of crisis, when the conduct in question results in a breach of international law. Indeed, the invocation of the necessity doctrine as a defence has linked such diverse governmental interests as fur seal trading, food supplies, provisions for troops and government bonds. Over its history, the necessity doctrine – and its legal antecedents – has encompassed a variety of emergencies giving rise to the necessity designation, key among them being the environmental and financial needs of the State. The necessity doctrine has been analysed by the United Nations International Law Commission (ILC) and several international tribunals. Recently, it has also been the subject of several investment cases regarding emergency measures taken by the Argentine government earlier this decade (the Argentine cases). The cases against Argentina constitute a significant part of the International Centre for Settlement of Investment Dispute (ICSID) arbitral work today – as of August 2010, out of a total of 125 cases pending before the ICSID, 27 were filed against Argentina; the majority of which relate to the Argentine financial crisis and involve the necessity doctrine at some level. Despite the many instances in which the doctrine has been invoked in the Argentine context, the ‘Argentine tribunals’ have been inconsistent in their interpretation and application of the necessity doctrine. This inconsistency has been described as potentially damaging as such conflicting results may lead to credibility loss and instability within the investment arbitration system. Furthermore, conflicting results also generate uncertainty regarding the right use of the necessity doctrine during crises.