Abstract
The legal basis for renewables is the environmental and human rights obligations of governments under international instruments and treaties. Despite this, and given that WTO members do about 97% of world trade, the implementation of programs and policies must also be consistent with supporting the development of new energy must be following the obligations of governments following WTO rules and regulations. Therefore, the organization's member states must balance their international environmental and trade commitments in this regard. Recent WTO jurisprudence has provided criteria for balancing these two categories of obligations. Since many countries join the World Trade Organization, regulation in energy, especially new energy, and investment guarantee contracts and renewable electricity purchase must be done under the organization's rules and jurisprudence. In this chapter, considering the World Trade Organization's recent practice, criteria will be presented to balance governments' environmental and commercial commitments supporting renewable energy.
TopIntroduction
Human-related climate change is affecting the energy sector and undermining the foundations of energy security. Similarly, climate change mitigation measures accelerate energy efficiency and sustainable energy sector policies (Adib et al., 2015). “Accepting this fact, in climate regimes, the approaches adopted in some of the initial environmental treaties, which required members to use trade restrictions against non-member countries, were abandoned (Aichele & Felbermayr, 2013). Today, reducing greenhouse gas emissions in the light of precautionary measures is considered a strategic environmental goal and stabilizing climate regimes. Therefore, most energy policymakers acknowledge the need to develop new energies through policies and support programs. This is being done in developed and developing countries, and in Iran, in addition to bylaws and contracts to support the production of renewable electricity, it is also reflected in the 2020 budget law.
GATF, the World Trade Organization's predecessor and the organization itself, has not been indifferent to environmental issues since its inception. Preservation of the environment is currently accepted in the jurisprudence of the organization as an exception to the rules of the organization, provided that the general principles of non-discrimination are observed, and the review body, by providing a broad interpretation of the condition of environmental protection measures(United Nations, 1988). Nevertheless, environmental issues are multifaceted, and paying attention to them as an exception to the organization's agreements and regulations does not seem sufficient and effective. For example, the cornerstone of dispute resolution in the US case - Migo - is that Article 20 of the GAT states that the exceptions are “limited” and “conditional.” This is even though in GATS, environmental exceptions are only limited and unconditional. Quantitative resource constraints to generate electricity from fossil fuels, greenhouse gas emissions, and environmental damage to soil, air, and water have shifted energy policies to greater focus and support for clean and endless electricity sources for power generation. Supports that pursue two major goals: security of supply and protection of the environment (Alston, 2020).
On the other hand, government support for producing some goods following international trade rules is contrary to the principle of freedom of trade and increased competition. It is a challenge that pits energy and environmental policies against trade policies, and one must inevitably be balanced in favor of the other. Policies to support the production of renewable electricity are one of the points of gravity of this challenge.
The challenge, like an iceberg, has many mysterious aspects that do not seem at first glance (Bradbrook, 1996). Also, the pre-litigation of cases pending or pending at the ICSID Arbitration Center over electricity and renewable energy over other common issues in international arbitration such as oil and gas in 2015 indicates the growing importance of renewable energy and renewable energy.
Key Terms in this Chapter
Equity: Defined by UNEP to include intergenerational equity—“the right of future generations to enjoy a fair level of the common patrimony”—and intragenerational equity—“the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources”—environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: To protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.”
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights.
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies.