University of Bologna Law Review (Sep 2023)
New Generation Free Trade Agreements at a Crossroads. Assessing Environmental Enforcement of the E.U.’s Trade and Sustainable Development Chapters from Global Europe to the Power of Trade Partnerships Communication
Abstract
Since the dawn of the era inaugurated by the 2006 Global Europe communication, the European Union (E.U.) has emerged as a key international actor in the negotiation and conclusion of ambitious New Generation Free Trade Agreements (N.G.F.T.A.s), striking to counterbalance commercial liberalization also with the enhancement of environmental safeguard. Interestingly, the latter represents for the Union not merely a policy goal, but a core normative target embedded in the founding treaties. A rationale which has thus been transposed to N.G.F.T.A.s by means of ad hoc Trade and Sustainable Development (T.S.D.) Chapters - including given green clauses dedicated to a vast array of eco-related domains. Nonetheless, ambiguities continue to subsist with regard to the enforcement phase of the present Chapters, having been at the center of an intense debate. Against the illustrated backdrop, this article is to focus on the major deficiencies characterizing green clauses’ enforceability both from an upstream and a downstream perspective. First, the identified pillar environmental provisions will be assessed in their semantic formulation. Secondly, attention will be paid to the specialis, non-confrontational, approach to dispute settlement provided for by T.S.D. Chapters, disregarding reliance on countermeasures in the case of non-compliance. In order to introduce innovative inputs to the research, relevance is to be conferred to the E.U. political guidelines for T.S.D. Chapters announced by the June 2022 Power of Trade Partnerships communication. Whereas it will be ultimately demonstrated that the latter document has managed to open the door to a novel season for N.G.F.T.A.s’ environmental enforcement. It is believed that further room for normative clarification seems to be appropriate.
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