David A. Wirth

European Communities-Measures Affecting Asbestos and Asbestos-Containing Products

The report of the Panel on European Communities – Measures Affecting Asbestos and Asbestos – Containing Products is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 18 September 2000 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel. There shall be no ex parte communications with the Panel or Appellate Body concerning matters under consideration by the Panel or Appellate Body.

The International Organization for Standardization: Private Voluntary Standards as Swords and Shields

Private voluntary standards such as the International Organization for Standardizations (ISOs) 14000 series have played an increasingly important role in encouraging corporations to adopt more sustainable business models on their own initiative and not in direct response to governmentally mandated requirements. ISO standards have a number of benefits, including promoting international uniformity; elevating environmental issues within an enterprise; promoting international trade; and providing a minimal level of environmental performance in countries with less than adequate regulatory infrastructure. Concerns about ISO standards include the relationship to public regulation; and ISO 14001s essentially procedural, as opposed to performance-based, character. International trade agreements such as NAFTA and the WTO Agreement on Technical Barriers to Trade inject ISO standards into the public policy arena. Because of the structure of these agreements, ISO standards may operate either as a sword-a negative standard used to challenge a domestic regulatory action-or a shield-an internationally agreed reference point that bolsters the legitimacy of a national measure. This Essay examines the potential for ISO standards on eco-labeling to act as swords to attack domestic requirements, and those on life cycle analysis to serve as shields to insulate municipal actions from international challenge in areas such as climate protection.

Current Developments: The Sixth Session (Part Two) and Seventh Session of the Conference of the Parties to the Framework Convention on Climate Change

The reconvened sixth session of the Conference of the Parties (COP-6bis) to the UN Framework Convention on Climate Change (FCCC) took place in Bonn from July 16 to 27, 2001, under the presidency of Jan Pronk, Netherlands minister of housing, spatial planning, and the environment. The meeting was noteworthy as the occasion for adopting the Bonn Agreements on the Kyoto Protocol rules, a crucial juncture for entry into force of the principal international instrument for reducing emissions of greenhouse gases. The rules were adopted in final form as the Marrakesh Accords at the seventh session of the Conference of the Parties (COP-7), held in Marrakesh, Morocco, from October 29 to November 9, 2001.

Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues

To date, there has been little effort to define the characteristics of responsible environmental reform efforts by private citizens and organizations in the United States on foreign environmental problems, such as the quality of foreign aid. Moreover, there have been virtually no attempts to identify a principled role for American lawyers in Third World environmental issues. This Essay will respond to these lacunae by articulating a new approach to advocacy based on a partnership model. In Part I, this Essay identifies the need for American public interest advocates to establish partnerships with directly affected groups on Third World environmental issues. Next, Part II examines another case study of partnership advocacy by nongovernmental organizations in Sri Lanka and the United States. Elaborating on this specific experience, Part III of this Essay evaluates the general benefits and responsibilities of the partnership relationship. After articulating the limitations of partnership advocacy, Part IV then proposes an extension of that model that focuses on establishing formal international adjudicatory mechanisms to provide remedies to those members of the public injured by decisions of international institutions.

Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement

The United States’ position in, and conduct of, the negotiations leading to the Paris Agreement, as with almost all international diplomacy leading to reciprocal international undertakings conducted by that country, reflected not only internal politics, but also the constraints of domestic law. The United States is not unique in this respect, but it is unusual in the extent to, and manner in which, its municipal law constrains the creation of international commitments. This article disaggregates US international and domestic climate policy as it developed prior to the Paris negotiations and analyses how those dynamics played out on the multilateral stage, influencing the shape of the Paris Outcome even to the name of the instrument. Among the subjects analysed are (1) the extent of the Executive’s powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement on limiting emissions of climate-disrupting gases; (3) domestic implementation of the US INDC; (4) executive agreements as vehicles for undertaking internationally legally binding commitments on climate; and (5) the role of the courts.

Environmental Impact Statements and Climate Change

Recent demands by atmospheric scientists and policy makers for immediate, comprehensive, and effective responses to the threat of global climate change have focused political attention on policies and laws that affect the quality of the environment. In January, the Reagan White House blocked the issuance of policy guidance that would have directed federal agencies to consider global climate change in the preparation of environmental impact statements (EIS). The Bush administration now has an early opportunity to reverse this decision. Using detailed computer models of the Earths climate, atmospheric scientists have produced startling scenarios of the future climate conditions that will results from increased atmospheric levels of greenhouse gases. These projections predict higher average temperatures, changes in patterns of precipitation, greater seasonal and annual variability in weather, and an increased frequency of such extreme events as droughts and floods. Planning for adaptation to a changing climate will be far more difficult than acting now to reduce greenhouse-gas emissions. While current models depict global changes reasonably well, they cannot accurately predict local and regional changes in the temperature and precipitation patterns. Unresolved questions about future impacts only underscore the need to act now to reduce emissions of greenhouse gases. The sooner action is taken, the more effective it will be. If policy responses are delayed, the eventual magnitude of climate change will be greater, and more radical measures will be required. In 1969, the National Environmental Policy Act (NEPA) mandated that every arm of the federal government integrate environmental values into all aspects of work, At the heart of NEPA lies a strict requirement that the preparation of a detailed EIS precede all major Federal actions significantly affecting the quality of the human environment.

The Paris Agreement as a New Component of the UN Climate Regime

Russian version is available at: https://papers.ssrn.com/abstract=3149829 The Paris Agreement, which was adopted in December 2015 and entered into force less than a year later, is the newest instrument to be adopted in the United Nations-sponsored global climate regime. The Paris Agreement takes its place under the 1992 Framework Convention on Climate Change and next to the 1997 Kyoto Protocol and 2012 Doha Amendment. After describing the historical evolution of the UN climate regime employing the tools of international law, this Article explores the structural, institutional, and legal relationships between the new Paris Agreement and the prior development and content of UN-sponsored efforts on climate protection under the auspices of the 1992 Framework Convention. The need for such an analysis is particularly urgent because the new instrument was purposely not identified as a “protocol,” and its relationship to the prior Kyoto Protocol is unclear. This Article consequently traces the development of the universal, UN-anchored climate regime from its origins in the 1990s to the present moment, with particular attention to the structural relationship among its various components and historical junctures. The Article then examines the text and structure of the Paris Agreement, along with its context, against this background. The significance of the Agreement’s status as an instrument other than a “protocol,” and its uncertain textual and institutional relationship to the prior Kyoto Protocol, receive particular scrutiny. The Article concludes that the Paris Agreement, from a structural and institutional point of view, represents both a break with the past designed to initiate a new, globally-inclusive multilateral approach to climate protection, but also contains indications of continuity with prior questions of global climate policy.

Joining Together, Standing Apart: National Identities after NAFTA

NAFTA has initiated a procedure for addressing transborder economic problems in a more adequate and predictable fashion, potentially encouraging policy convergence between three disparate political cultures. Rather than addressing economic, social and environmental policy issues separately, trade policy now serves as a vehicle for negotiating policy convergence. Consequently trade officials are being forced to deal with an expanded array of domestic policy isues. This text presents a detailed examination of the initial NAFTA experience and evaluates its long-term implications beyond those of ending trade and tarriff barriers. In particular, it examines the cultural implications of this international arrangement. In addition, environmental protection and conservation issues are increasingly at the forefront of the international political agenda. NAFTAs environmental side agreement has created a way of addressing environmental concerns whilke protecting local standards, illustrating the attempt to achieve policy convergence by means of a trade apparatus. NAFTA now represents the continuing tension between integration and the maintenance of national autonomy.

Book review: a climate for change.

A review of Negotiating Climate Change: The Inside Story of the Rio Convention.