This research examines the legal issues arising in the inter-relationship between climate change law and policy on the one hand, and international trade regulation on the other. The focus is government procurement. It looks at “green” government procurement (GPP) policies and practices used by the Parties to the Kyoto Protocol as a tool for climate change mitigation, and as it relates to these countries’ obligations under the WTO Agreement on Government Procurement (GPA). GPP is government purchase practice that favours goods, services and service suppliers that are more climate-friendly and energy efficient over similar others that are less so. For example, under the EU GPP policy, for climate reasons, procurement authorities have a preference for green electricity (generated from renewable sources) as against the conventional fossil-based electricity. The two types of “electricities” are ordinarily same products as far as their performance is concerned, that is, at the consumption level. Discriminating between the two has the potential to raise serious issues of law at WTO level.Under the WTO non-discrimination disciplines (GATT Arts. I and III, and GPA Art.III) product or service standards based on non-product related processes and production methods (PPMs) such as climate friendliness should not serve to permit differentiation in treatment between “like” products. The general exceptions provisions (GATT Art. XX(b) and (g) and GPA Art. XXIII) however, may permit such climate-related differential measures if they are: (1) necessary to achieve the legitimate policy objective intended, (2) not applied in a discriminatory manner and (3) not a disguised restriction on international trade. There are two issues of major concern to this study: First, there are textual discrepancies as between the GATT and GPA provisions related both to the nondiscrimination norms and the exceptions, which may pose interpretation difficulties in the event of a dispute. Secondly, the provisions of GATT Art. XX (b) and (g) are interpreted to refer to environment in general terms. However, the current trend is to single out and address climate change separately from among other environmental problems of transboundary nature. This is in view of the urgency associated with the challenge it poses. Generally, also, in accordance with established WTO jurisprudence, the party who invokes the GATT Art. XX exceptions bears the burden to prove the measure in question as being covered under the exceptions. Some scholars suggest that this situation places at a disadvantage the subjects covered by the exception provisions (in this case climate-related procurement). Examined, therefore, is not only the extent to which GPP practices can be accommodated under these exceptions, which are also in line with the WTO’s recognition of the principles of sustainable development, but also whether climate-friendly procurement is best protected if expressly provided for as “positive norm” in the text of the GPA. The Revised GPA 2007 (not yet in force) contains a new paragraph (Art. X:6) which explicitly permits the Parties to include environmental considerations in their procurement policies. This study argues that the revision would not fundamentally address the issues observed earlier. In order to avoid the interpretation difficulties envisaged, and to promote mutual supportiveness and coherence between the climate and trade regimes further amendment would be necessary to the text of Art. XXIII of the GPA to the general exceptions, or in the alternative, to Art. X:6 of the Revised GPA. The amendment should, subject to appropriate conditions, explicitly permit discriminatory GP measures meant to address climate change subject. This amendment would effectively shift the burden of proof from the Party maintaining the measure to the one complaining against it. In the final analysis, this research will contribute to the current discourse on what role the WTO may play in the efforts to fashion out new international climate policy to succeed the Kyoto Protocol to the UNFCCC by 2012.
|Date of Award||2010|
|Sponsors||Swiss National Science Foundation SNF|
|Supervisor||Melaku Desta (Supervisor) & Peter Cameron (Supervisor)|
- International Law and Policy for Climate Change, Energy and Trade