The Integration of Environmental Law into International Investment Treaties and Trade Agreements: Negotiation Process and the Legalization of Commitments

51 Pages Posted: 22 Nov 2015  

Madison Condon

New York University School of Law; Columbia University - Columbia Earth Institute

Date Written: January 2015

Abstract

There were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to be fully explored, though there has been significant literature on trade and environment “linkages.” This paper seeks to give a U.S.-centric overview of the recent trends in the inclusion of environmental provisions in BITs and FTAs. In particular, this paper focuses on the recognition and integration of multilateral environmental agreements (“MEAs”) into the text of investment agreements. The analysis of this integration takes two approaches. In the first, the international legal implications of the inclusion of MEAs into other international treaties is aided by the concept of “legalization,” first introduced in 2000 by Abbot et al., in which the “hard” or “soft” nature of a legal norm is determined by the degree to which it possesses three characteristics: obligation, precision, and delegation. The second approach of the paper asks how and why these MEAs came to be prioritized in the trade negotiations of the United States. The answer to the question is found by applying theories of international negotiation, primarily Robert Putnam’s theory of “two-level games,” to the history of the development of environmental provisions of trade and investment agreements.

Keywords: environment, trade, law, investment, international

Suggested Citation

Condon, Madison, The Integration of Environmental Law into International Investment Treaties and Trade Agreements: Negotiation Process and the Legalization of Commitments (January 2015). Virginia Environmental Law Journal, Vol. 33, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2693207

Madison Condon (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://policyintegrity.org/madison-condon

Columbia University - Columbia Earth Institute ( email )

314 Low Library
535 West 116th Street, MC 4327
New York, NY 10027
United States

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