Spurring Climate Change Action Beyond External Borders - A study of legal measures available to the EU to exert pressure on Canada to pursue climate change action in times of international institutional failure

Abstract: Climate change is one of today’s major challenges; a challenge with significant consequences that will affect all countries in different ways if a way to combat global warming by stabilizing greenhouse gas emissions cannot be agreed on. A global problem calls for an international response; however, the international climate regime has failed to deliver adequate results. Currently, states representing a mere 15 percent of global emissions have committed to legally binding emission targets under the second compliance period of the Kyoto Protocol, and the future of international cooperation under the United Nations Framework Convention on Climate Change remains undecided. This thesis recognizes that it is critical that more states take more stringent action to reduce emissions of greenhouse gases in order to stabilize the climate. The EU has come a long way with its climate change mitigation action and has, in essence, been working to substitute for other states’ inaction on these urgent issues. Canada is an example of a country that has shown poor climate performance in recent years, and its government has clearly stated that mitigation efforts cannot come at the expense of the Canadian economy. This investigation therefore focuses on what legal measures that are available to the EU to exert pressure on Canada to pursue climate change action, in the light of an international climate regime that has failed to provide sufficient incentives and efficient mechanisms to ensure compliance with legally binding climate targets. Three different legal measures that the EU has implemented in order to spur climate change action beyond its external borders are examined in the thesis. First, secondary legislation with external implications has been used to impose requirements for access to the EU’s internal market, thus making all companies, regardless of nationality, subject to the EU’s high environmental protection standards. Second, CJEU case law in the form of the high-profile ATA case confirmed the legality of the criticized Aviation Directive, and legitimized the EU’s leadership role in climate change mitigation. Hence, if third countries want access to the EU market, they will have to accept the conditions that the EU sets up. Ultimately, the EU uses the size and importance of its internal market to make third countries take action that they would not otherwise have devoted resources to. The third measure explored is the possibility to condition bilateral and multilateral agreements on climate change action. By using conditionality or cooperation clauses, the EU can integrate climate change concerns into its external relations in a more flexible way, and tailor demands for specific action to selected countries. For this to work, it is crucial that the agreement is of high importance to the contracting state. In the newly concluded free trade agreement between the EU and Canada, Canada has for the first time agreed to include provisions related to trade and sustainable development, as well as on trade and the environment, which is a step forward for a government otherwise reluctant to prioritize environmental protection. In times of institutional failure of the international climate regime, a range of alternative legal measures can be used by the EU to make third countries take climate action. Secondary legislation supported by CJEU case law can target a larger group, whereas conditionality and cooperation clauses can constitute tools for achieving political goals by negotiation, such as agreeing on more stringent climate change mitigation action. All measures should, however, be complemented with effective compliance mechanisms, as it seems that environmental benefits are not great enough incentives for profit-driven companies to reduce greenhouse gas emissions.