EU as a global green leader?

Assessing the EUs environmental actions in Southeast Asia

Karina Rinaldi-Doligez Student Id.: S1139711 EU Environmental Poicy Leiden University - MA International Relations: EU Studies

Table of Contents

Abstract..p. 3 Introduction.p. 4-5 Challenges in implementing environmental norms in both regions and the bumpy road towards cooperation............pp. 5-10 Assessing the possible solutions...pp. 10-15 Conclusion....pp. 15-16 Bibliography...p. 17-18 Annexes.pp. 19-22

Word count (excluding cover page, table of contents, abstract, footnotes, tables, figures, bibliography and annexes): 4529.
2

Abstract With the stringency of its environmental legislations and its commitment and drive to promote fight against climate change, the EU distinguishes itself on the global stage, expressing its ambition to become a global green leader. This paper tries to analyse a specific case of this aim with the view to depict one of the aspects of the EUs promotion of environmental norms on the global scale: the case of Southeast Asia. Therefore, it aims to assess the extent to which regional co-operations can solve common problems such as environmental protection. The relevancy of this study is that it provides an alternative to the international platforms of negotiations such as the WTO and UNFCCC, which clearly show their legal weaknesses1. However, it does not suggest that inter-regionalism cannot be complementary to a global governance. In fact, this study will show that the possibility for it to thrive and be successful is very limited. Yet, there are lessons that can be learned from it, mainly that: (a) a structural approach to environmental issues, if it works in the case of the EU, cannot be applied to ASEAN, (b) green politics, as part of the Green political theory expressed by Paterson, Dobson and Eckersley2, seem to provide a better alternative approach (c) global environmental governance can be complemented by regional environmental governance3, thus from this perspective inter-regionalism can serve as a tool to a mutual acquisition of environmental acquis.

Particularly in legal structure. See, for instance, Scott, J., International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO, European Journal of International Law, Vol. 15., No. 2, 2004, pp. 307-354; Voon, T., Sizing Up the WTO: Trade-Environment Conflict and the Kyoto Protocol, J. Transnat'l L. & Pol'y, Vol. 10, 2000, pp. 71-108 and International Food & Agricultural Trade Policy Council, WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Market Place , October 2006.
2

There are nuances in their approach of this theory. See: Paterson, Matthew, Green politics, in Burchill, Scott & alli, Theories of International Relations, 2nd edition, Basingstoke, Palgrave, 2001, pp. 277-307; Eckersley, Robyn. The green state: Rethinking democracy and sovereignty. MIT Press, 2004; Dobson, A., Critical theory and green politics, ECPR, University of Essex, 1991.
3

As expressed by Yoichiro Usui: Usui, Y., An Evolving Path of Regionalism: The Construction of an Environmental Acquis in the EEC and ASEAN, ISS Research Series, 2007.

INTRODUCTION With the stringency of its environmental legislations and its commitment and drive to promote fight against climate change, the EU distinguishes itself on the global stage, expressing its ambition to become a global green leader. This paper tries to analyse a specific case of this aim with the view to depict one of the aspects of the EUs promotion of environmental norms on the global scale: the case of Southeast Asia. Therefore, it aims to assess the extent to which regional co-operations can solve common problems such as environmental protection. The relevancy of this study is that it provides an alternative to the international platforms of negotiations such as the WTO and UNFCCC, which clearly show their legal weaknesses4. However, it does not suggest that inter-regionalism cannot be complementary to a global governance. In fact, this study will show that the possibility for it to thrive and be successful is very limited. Yet, there are lessons that can be learned from it, mainly that: (a) a structural approach to environmental issues, if it works in the case of the EU, cannot be applied to ASEAN, (b) green politics, as part of the Green political theory expressed by Paterson, Dobson and Eckersley5, seem to provide a better alternative approach (c) global environmental governance can be complemented by regional environmental governance6, thus from this perspective inter-regionalism can serve as a tool to a mutual acquisition of environmental acquis. The structure of the paper is as follow: First I will identify the challenges facing both regions in their attempts (if any) to adopt environmental norms in their respective regions using a comparative study, but also the obstructions in their way towards co-operation. Second, I will assess the possible solutions and the EUs achievements on this matter (since the EUs approach is proactive, as opposed to ASEANs approach), with a focus on two

Particularly in legal structure. See, for instance, Scott, J., International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO , European Journal of International Law, Vol. 15., No. 2, 2004, pp. 307-354; Voon, T., Sizing Up the WTO: Trade-Environment Conflict and the Kyoto Protocol, J. Transnat'l L. & Pol'y, Vol. 10, 2000, pp. 71-108 and International Food & Agricultural Trade Policy Council, WTO Disciplines and Biofuels: Opportunities and Constraints in the Creation of a Global Market Place, October 2006.
5

There are nuances in their approach of this theory. See: Paterson, Matthew, Green politics, in Burchill, Scott & alli, Theories of International Relations, 2nd edition, Basingstoke, Palgrave, 2001, pp. 277-307; Eckersley, Robyn. The green state: Rethinking democracy and sovereignty. MIT Press, 2004; Dobson, A., Critical theory and green politics, ECPR, University of Essex, 1991.
6

As expressed by Yoichiro Usui: Usui, Y., An Evolving Path of Regionalism: The Construction of an Environmental Acquis in the EEC and ASEAN, ISS Research Series, 2007.

cases: multilateral and bilateral negotiations (WTO and Free Trade Agreement/FTA), and local actions (the DELGOSEA and SEA-EU-Net projects).

I-

CHALLENGES IN IMPLEMENTING ENVIRONMENTAL NORMS IN BOTH REGIONS AND THE BUMPY ROAD TOWARDS A COOPERATION

It is very difficult to make a comparison between the EUs approach towards environmental norms and that of ASEAN. Even the form of both regional integration itself is very different in so many aspects that one would wonder if it even make sense to compare them. I argue the contrary7. Indeed, while the EUs integration has gone so far as creating the concept of supranationality and constitutes an advanced form of regionalism, that of ASEAN constitutes a rather open regionalism with a strong emphasis on the principle of sovereignty. However, this difference does not mean that the dynamic of integration of both regional entities will point towards opposite ways. On the contrary, the EU is not free from euroscepticisms in all its different forms (the recent European sovereign debt crisis and the recent David Camerons Europe speech confirms this claim), and ASEAN has surprisingly managed to accomplish effective common resolutions of differences between its member countries8. Both regions have different dynamics which study would reveal how to different regions in the world face the different challenges of globalisation. In this sense, it makes sense to compare both regions, especially for the purpose of this study (how to deal with common global issues such as climate change and the deterioration of natural habitat). It is therefore relevant to compare how both regions perceive and receive environmental concerns. The EU, as previously mentioned, has a clear goal of defending its green values and promote it on the global stage. The Nothern part of the EU, for instance, is very advanced in

For the difference between the different forms of regional integration and the relevance of comparing EU and ASEAN, see: Detlef, L., Regionalisation versus regionalismProblems of change in the world economy, Intereconomics, Vol. 26, No. 1, 1991, pp. 3-10 and Warleigh-Lack, A., Van Langenhove, L., Rethinking EU Studies: The Contribution of Comparative Regionalism, Journal of European Integration, Vol. 32, No. 6, 2010, pp. 541-562 .
8

On ASEAN accomplishments, see: Munir, M., ASEAN: perspectives on economic integration: cover note: ASEAN In Perspective, 2009.

terms of adopting and sponsoring eco-friendly measures such as allocating a high amount of subvention for electric cars. It even sets such high criteria for environmental protection that it differentiates itself from other Western countries such as the US (the GMO dispute between the US and the EU is an illustration of this). It has signed more than 40 international multilateral environmental agreements9. Moreover, its approach on environmental protection is proactive, as we have seen in the EFCCC negotiations and the EUs commitment to reduce GHG emissions. Again, this goes in contrast with the US who has not ratified the Kyoto Protocol and does not seem likely to do see in the near future. This ambition is reflected in the EU Treaties and the progression of its environmental policy which has been given structural and legal tools. Annex I(a) shows and describes the evolution of the EUs environmental policy since it has been given an official legal basis with the Single European Act10. The principles of sustainable development and precautionary principle has been enshrined in the Treaties. This clearly demonstrates that the EU has been absorbing and constructing environmental acquis through institution and legal framing. However, as Annex I (a and b) shows, there are confrontations between trade, environment and energy policy aims, and the the EUs system of harmonisation and coordination shows some weaknesses. This reflects the fact that the trade-environment nexus is still unresolved within the EU which is expressed by vertical and horizontal conflicts between EU institutions and the difference of point of views between Member States. Moreover, there is no clear policy in the EU that translate the WTO/GATT discussion about the compatibility of trade and environmental protection measures. Despite all these weaknesses, however, no other region in the world has integrated environmental acquis so widely and deeply as the EU. In this respect, and considering the EUs ambition and commitment to promote its environmental norms, the EU can be considered a global green leader. By contrast, ASEAN shows a different picture. The ASEAN Charter mentions sustainable development in its preamble and lists it as one of ASEAN purposes11. It also has a system of decision making on environment matters (Figure 1).

The list can be found on the Commissions website: http://ec.europa.eu/environment/international_issues/pdf/agreements_en.pdf

10

It is to be noted, however, that environmental measures have been taken without legal basis before the SEA since the late 1960s , which are above all related to trade. The first European trade policy with secondary environmental dimension is the Dir. 67/548 on dangerous chemicals classification, labeling and packaging. 11 Charter of the Association of Southeast Asian Nations, Singapore, 20 November 2007.

Figure 1. ASEAN decision-making process on environmental matters12

ASEAN Environment Ministers Meeting

ASEAN Senior Officials on the Environment (ASOEN)

Five Working Groups on the Environment: - Multilateral Environmental Agreements - Nature Conservation and Biodiversity - Coastal and Marine Environment - Environmentally Sustainable Cities - Water Resources Management

It has adopted certain measures and instruments on environmental matters13. Moreover, it has signed and ratified 10 multilateral environmental agreements14. However, it is not difficult to identify some weaknesses of these instruments (and these are just the most obvious ones). First, ASEAN Charter, although binding to all member countries, attaches a particularly strong emphasis on the principle of sovereignty15. Thus, there is no obligation whatsoever for a member country to abide to the decisions and measures derived from ASEAN secretariat. Second, figure 1 shows how unilateral and intergovernmental the decision making system is. In analogy, one would compare it to the Council of Ministers of the European Union without the Parliament and with strict unanimity for all decisions. ASOEN is forced to follow the orders and the decisions of the ministers
12

Taken from the annex of Op. Cit., Usui, 2007. See Ibid.

13

14

The list can be found here: http://environment.asean.org/asean-working-group-on-multilateral-environmentalagreements-awgmea/

15

This is also the case for the Treaty of Amity and Cooperation in Southeast Asia which is the pre-condition for a country to obtain an observer status or to join the ASEAN. The principle of sovereignty, however, makes it possible for this Treaty to be signed by all countries who simply want to have an enhanced co-operation with ASEAN. The EU and the US signed the Treaty in 2009.

meetings. Finally, there is no system that controls the enforcement and implementation of these measures. It is therefore not so hard for ASEAN countries to agree on decisions at the ministerial meetings or sign international treaties and agreements separately and then implement them as they wish. In fact, ASEAN has no ambition to become a global green leader. All its member countries are in the process of developing or highly dependent on Chinese investments and maritime trade (such as Singapore) or natural resources (such as Brunei Darussalam) and therefore does not see environmental objectives as priority. On the contrary, it regards the promotion of environmental values with rather suspicious eyes, in that it considers it as another (after the rather detrimental experience of colonization) Western attempt to advance its own economic interests. In this regard, ASEAN countries has the merit of having a clear position on the trade-environment nexus. The 2010 Trade Knowledge Network (TKN) Report by Jorn Dosch assesses how environmental issues in trade and investments are addressed in the Mekong sub-region. One of its conclusion is worth quoting: There is little evidence of any substantial initiatives to mainstream environmental issue into trade/investment policymaking in terms of initiatives of domestic national actors or at the subregional or regional level that go beyond official government rhetoric and often enforceable- legislative frameworks. This policy nexus between the environment and trade/investment is gradually gaining prominence, but this process is not driven by the subregions own organizations such as the GMS (Greater Mekong Subregion) and MRC (Mekong River Commission) due to mistrust and lack of transparency among their members, and is almost entirely steered by foreign donors.16 Added to this, the report also identifies a certain number of other issues such as how ASEAN policymakers view the new proposal from civil society to establish a fourth pillar of cooperation17 is viewed with concern by the ASEAN policymakers, the inexistence of a comprehensive and explicit agenda for reconciling trade and the environment, the weak reference to the environment in the ASEAN Economic Community Blueprint, and how central ASEAN initiatives (which however do exist) are regularly blocked by individual Member States. In other words, the ASEAN, on the contrary of the EU, downloads

16

Dosch, J., Environmental issues in Trade and Investment Policy Deliberations in the Mekong subregion: Balancing Trade Growth and Environmental Protection in ASEAN , TKN Policy Report 2, 2010, p. 21.
17

The other three being Economic, Security and Socio-Cultural (in which environment is included) pillars. They are designed with the view to create pillars of Community inspired by the European Maastricht model.

environmental norms imposed by the international community, but when it does, it does so rather weakly due to the persistency of individual member states to retain their own policy. However, Yoichiro Usui provides a more positive perspective18. He draws out our attention on the non-legal aspect of the environmental acquis and suggests a constructivist approach of it. While recognizing the weaknesses in the ASEAN legal instruments, he believes that ASEAN has acquired and developed a certain environmental acquis, reflected by the adoption of the Hanoi Plan of Action of 1998 which has resulted in the proactive process of building the regional community19. Moreover, he states that environmental policy-making in ASEAN is not simply state-centred20 and some soft instruments can be transformed into a hard one. To illustrate this, he states one of the most serious and problematic environmental issues in ASEAN: the haze. The Regional Haze Action Plan adopted in 1997 now has been transformed into a hard law instrument by the Hanoi Action Plan and became the 2002 Agreement on Transboundary Haze Pollution. In fact, ASEAN environmental policy only follows the principle of Asian values inherited from Confucianism and advocated by the former Prime Minister of Malaysia Mahatmir Muhammad and of Singapore Lee Kwan Yew in 199521. In the case of ASEAN, these values have evolved into what is called the ASEAN way, which are expressed by: soft law formulation of common action frameworks; national implementation of ASEAN policy guidelines; non-interference and no-compliance procedure22. From Western eyes (and more particularly from the structuralists viewpoint), these unstructured and weak principles cannot possibly work. Yet, as the 1997 Asian financial crisis shows, its flexibility allows ASEAN countries to overcome common problems together and drives each country to gather in times of crisis rather than blaming on each other such as in the EU case23.

18

Op. Cit., Usui, 2007. Ibid., p. 12. Ibid., p. 14.

19

20

21

To understand Asian values and how it has developed in Southeast Asia from a historical perspective, see: Rickleft, M. C., New History of Southeast Asia, 2010.
22

Koh and Robinson, quoted in: Op. Cit., 2007, p. 12.

23

See, for instance, Hellmann, D. C., A decade after the Asian Financial Crisis: Regionalism and International Architecture in a Globalized World, Asian Survey, Vol. 47, No. 6, November/December 2007, pp. 834-849, and Das, D. K., How did the Asian economy cope with the global financial crisis and recession? A revaluation and review, Asia Pacific Business Review, Vol. 18, No. 1, January 2012, pp. 7-25.

In sum, the differences between the EU and the ASEN in terms of environmental norms, culture and system of governance does not portend an easy way for a possible cooperation between the two entities. Nonetheless, the EU has made some attempts. The next part of this paper will assess them.

II-

ASSESSING THE POSSIBLE SOLUTIONS

MULTILATERAL AND BILATERAL NEGOTIATIONS The protection of environment is highly related to trade. Indeed, The common view on how to solve environmental issues is that since they are of transnational, and even global, dimension, global co-operation is need to resolve them. This subpart will assess the chance and possibility for the EU to succeed in promoting its environmental norm to Southeast Asian countries -or perhaps even to convince ASEAN countries to become its partner in doing so- through WTO. Another possibility is through concluding free trade agreements with environmental clauses. Unfortunately, both prospects seem to be rather negative. Concerning WTO, the first issue is the structure of the organisation itself. It was created under the objective to remove all barriers to trade (Tariffs and non-tariff barriers) based on the basic economic theory of comparative advantage by Smith and Ricardo. Put it simply, the assumption is that a country would gain more economic gain by choosing to trade with another country, even if its opportunity costs of losing its local production are lower than that of the other country. The reason for this is that trade would replace the least efficient of the productions of this country with a more efficient production of another country, so in either case, it would be a win-win situation. This theory becomes an issue when confronted with environmental protection principles. Should we allow all trade at the expense of environment? WTO provides some tools to solve this issue, such as the Article XX of GATT which allows some exceptions, including the protection of human, animal or plant life, health, and the conservation of exhaustible natural resources (Article XX b and g). However, this article does not exempt a country from respecting the two main and basic principles of the WTO: national treatment (NT) and most favoured nation (MFN). This means that a country has to treat its domestic and foreign production the same way, and it cannot privilege imports from certain countries more than the others (there are some exceptions regarding the
10

developing and the least developed countries). Again, should free trade as engine to growth principle prevails when the good in question is considered harmful for environment by a country (the importer) and not by the other (exporter)? WTO, with its knocking down rather than building up approach24 gives reasons for environmentalists and the greens to doubt about its outcome. In this regard, WTO, a body created by and associated with Western ideas and ideologies, has the reverse effect of discrediting Western environmental values. It is worth quoting ASEANs reaction to the EUs criticism of forest degradation in Indonesia and Malaysia: It seems odd that the argument put forth by DCs (developed countries) often refers to the compulsion to safeguard the global environment consumption25. The EU has even made the situation worse by indulging itself in to green protectionism, in that it tries to protect its inefficient domestic products at the expense of most efficient products from developing countries. The dispute over biofuel is the perfect example of this. To protect its local rapeseed oil production used as biofuel, the EU amended the Renewable Energy Directive (RED)26 in which it puts such a high criteria that it is impossible for other vegetable oil used for biofuel to enter the market. This policy is highly criticised by Erixon in its 2012 paper27. The Directive was implemented accordingly by Spain, the main export destination of Argentinian soy oil (50% of the total export), and Argentina reacted by convening a dispute settlement body at the WTO. Indonesia and Malaysia, as the world leading producer of palm oil (also used as biofuel) have joined the panel. Indonesia has also convened a panel against the EU concerning EUs anti-dumping measure addressed towards certain palm oil products from Indonesia. This kind of policy does not fool anyone. Indeed, as Evenett and Whalley pointed out, applying protectionist measures using environment discourse can produce a chilling effect on environmental
24

(ozone layer), the present

quality of which has been thoroughly affected by DCs past production and present

Op. Cit., Scott, 2004.

25

Quoted in Boas, M., The Trade-Environment Nexus and the Potential of Regional Trade Institutions, New Political Economy, Vol. 5, No. 3, 2000, p. 420. 26 European Communities, Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77EC and 2003/30/EC.
27

Erixon, F., The Rising Trend of Green Protectionism: Biofuels and the European Union , ECIPE Occasional Paper, No. 2/2012.

11

negotiations28. Trading partners in the rest of the world will hardly believe that the discretion abused in existing national environmental regulation will not be abused again. In fact, as Messerlin points out, climate community and trade community can benefit and learn from each other, but only if they play by the rule29. Boas adds30: According to ASEAN, trade is not, and never has been, the cause of environmental problems. Subsequently, trade sanctions cannot, and will not, affect the root cause of such problems. It does admit that environmental measures are important and necessary, but it does not want to do so because it has to comply to demands made by trading partners. Another solution would be concluding a FTA with ASEAN, in which environmental clauses would be included. This solution has been tried. It is impossible to do at the ASEAN level, so the EU decides to conclude FTA bilaterally, country by country. It is a long process (see annex II). However, the advantage is that it is a tailor-made solution, therefore more agreements can be reached. Moreover, this would provide the EUand its trading partners with more leniency than WTO negotiations.

LOCAL ACTIONS The final solution that I am going to access is the EUs action at the local level. Two projects stands out: The SEA-EU-Net and DELGOSEA. The SEA-EU-NET is a project set up in 2008 which falls under the 7th Framework Programme destined to promote research in science and technology. It offers a platform of dialogue between scientists and researchers from the EU and Southeast Asian countries. More budgets are allocated to programmes aimed at enhancing the mobility of scientists and researchers and the accomplishment of common projects. The main areas in which the project is focused on are agriculture, medicine and energy. This project has been received very well by the scientific community of both countries. It is very difficult to assess the real efficiency of this project, but it has resulted in the publication of a certain number of joint

28

Quoted in Steenblik, R., Green Growth, Protectionism, and the Crisis, Centre for Economic Policy Research , 2009, p. 260.
29

Messerlin, P. A., Climate and trade policies: from mutual destruction to mutual support , World Trade Review, Vol.1, No. 1, 2012, pp. 1-28.
30

Op. Cit., Boas, 2000, p. 421.

12

publications31. Assuming that knowledge is an essential engine for sustainable development, having a collaboration between the two regions as a way to solve environment issues seem to make sense. However, from what I have been able to analyse so far, it seems likely that the predominant tendency is for the ASEAN researchers to follow EUs scientists methods. This is not a bad thing per se. However, on this matter I share the doubts of the Green political theorists in that the approach of science (and therefore positivism) is highly anthropocentric and Western (meaning developed countries or the North)-biased. It would therefore lead to pure scientific progress and development, but not necessarily at the improvement of the environment. After all, the developed countries are more responsible for the environmental degradation with their model of economic and industrial growth. Having experienced the first meeting of the SEA-EU-Network in 2008, I could not help but noticing a clear division between scientists from the two regions and the difficulty for them to dialogue. Unfortunately I have not had the chance to follow the development of the project. Another project offers another solution: The DELGOSEA project. DELGOSEA stands for Partnership for Democratic Local Governance in Southeast Asia. It is a project started in 2010 and funded by the European Commission (75%, from the Development and cooperation-Europe Aid DG), the German Konrad Adenauer Stiftung (24%) and local partners. Although the BPs are more focused on governance and peoples participations, some clearly have environmental aspects (such as water waste management and urban planning). The idea is to duplicate a best practice (BP) from one city of a Southeast Asia country to another city (PC) of another Southeast Asia country through local actors (municipality, NGOs), therefore creating a local network of governance between Southeast Asian countries. Best practices are chosen according to certain criteria (listed in table 1):

31

For the list of the projects, see: http://www.sea-eu.net/project/object/document/list

13

Table 1. DELGOSEA criteria for Best Practices and Pilot Cities32

Best Practices (BP) Pilot Cities (PC)

- Should be innovative in one of four aspects - Recent history of good performance and good of fields in local governance; track record in exercising local government functions; - Have a high transferability potential, taking into account the administrative and political - A solid potential of human ressources and environment as well as social-cultural factors; adequate qualification and availability of staff;

- Be of a sustainable character;

- Strong leadership quality of the mayor and senior local government officials, and their

- Be reasonable in institutional as well as in willingness to improve existing mechanisms and financial viability aspects; procedures for peoples participation;

- Be cost-efficient;

- Sufficient experience and competence in the thematic fields;

- Respect for Good Governance Principles of the United Nations. - A clear commitment by local officials to become a pilot for municipality financial including if

commitment necessary.

contributions

This project is in accordance with the green political theorist in its approach towards decentralisation, the non-state aspect and action at the local level. The advantage of this constructivist solution is that it acts locally with the local people, the most susceptible to suffer from environmental degradation. However, this approach also has weaknesses. First , except for the one the for BP concerning the requirement of the BPs to meet the sustainability criteria, the criteria set for BP and PC (see Table 1) are more socio-economic than environmental. Therefore, how can we be sure that the BP for one city will be environmentally applicable to another city from another country, located in a different geographic area? Mainland Southeast Asia has a different landscape, climate and geological conditions. This project, however reflects how the
32

Source: DELGOSEA

14

EU approaches aid programmes in the region: environment is a key domain in the EUs strategy in Asia in general, but more particularly in Southeast Asia33. Drawing from his study of the Mekong subregion, Dosch incites the EU and other foreign donors to intensify efforts in this term, but there need to be a better coordination between them (Canada, for instance, has had the clearest pro-environment approach amongst other OECD donors34) and amongst the different parties involved (local communities and ASEAN Secretariat, for instance).

CONCLUSION There is an ever increasing need for a cooperation between the EU and Southeast Asia to tackle environmental problems. ASEAN is a region with roughly the same number of population as the EU (600 million and 500 million respectively). Its economies have been increasing in a rapid pace (Indonesia for instance has seen its GDP increasing at 6% a year) and trade seems to predominate their environmental concerns, while deforestation and haze continue to raise major concerns within the climate community. With the increasing interests the US has in ASEAN (with APEC) and the emergence of the BRICKS, the EU cannot afford to lose more and more partners in the climate negotiations. It has to come up with some strategies to regain credibility in a system where trade seems to predominate over environmental concerns. Ironically, EUs protectionist attitude over agriculture and biodiesel discredits EUs very aim to promote its environmental norms. The road to a EU-ASEAN environmental co-operation seems to be bumpy, indeed. Major obstacles are in the way, notably differences in norms, style of governance, socioeconomic conditions amongst others. However, as Usui shows, ASEAN have adopted an environmental structure and have developed its own environmental acquis, acquired not by institutional structure but from the international community. This reflects the growing concern in the global community about some detrimental consequences of growth, which provides the EU with some indications on how the EU can promote its values. By studying assessing the chance and possibility for a regional co-operation between the EU and ASEAN, the study finds that: - Structuralist approach cannot be considered due to the abovementioned differences;
33

A table with the list of the projects can be found at: Op. Cit., Dosch, 2010, p. 18. Ibid.

34

15

- In order for the EU to have influence in multilateral negotiations, it has to play by the rule and treat developing countries differently; - Bilateral agreements, although providing more space to manoeuvre for the EU, takes too long to conceretise. However, it is to be noted that ASEAN and Korea has signed a RTA with several provisions for environmental co-operation35; - The EU needs to continue and strengthen its involvements in local community projects but address them in a more efficient way, such as pushing for a better coordination with other donors and ASEAN secretariat. If negotiations are stuck at the summit level, then those taken within local communities should provide some answers.

35

George, C., Serret, Y., Regional Trade Agreements and the Environment: Developments in 2010, OECD Trade and Environment Working Papers 2011/01.

16

Bibliography
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Voon, T., Sizing Up the WTO: Trade-Environment Conflict and the Kyoto Protocol, J. Transnat'l L. & Pol'y, Vol. 10, 2000, pp. 71-108 Warleigh-Lack, A., Van Langenhove, L., Rethinking EU Studies: The Contribution of Comparative Regionalism, Journal of European Integration, Vol. 32, No. 6, 2010, pp. 541-562 .

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ANNEXES Annex I- EU policies on trade, energy and environment (a) EU official legal base on common market, environment and energy policies Treaty base SEA (1987) Articles 100a,b TEC Title IV (arts. 130r-t) TEC Principles and legislative procedures - First official legal base - Protection of environment at high level - Allows - Environment=component of other Communitys policies - Polluter should pay - Unanimous vote with the possibility for QMV when the Council decides to do so - Consultation with EP and EESC - Sustainable growth respecting the environment principle - Environment attached to common market - Extend QMV to most areas of environmental policy - Co-decision Procedure - Threshold for QMV raised - Environment, transport and energy Shared EU competences - Environmental responsibility and sustainability=principle of EU Law - Environment part of the Unions external action - Precautionary and integration principles - Revision of QMV (replacing weighted voting in the Council), Ordinary Legislative Procedure. - Introduction of Energy Title (prospectively strengthening climate policy), with strong linkage with environmental policy, Ordinary Legislative Procedure and specific objectives*.

Maastricht Treaty (1993)

2 TEC 95 TEC Title XIX (174-176) TEC

Amsterdam Treaty (1999) Nice Treaty (2003) Treaties of Lisbon (2009)

Preamble, 3 TEU 4 TEU 11 TFEU 21 TEU 114 TFEU Title XX (191-193) TFEU Title XXI (194) TFEU

Article 194 TFEU: Ensure the functioning of the energy market, ensure security of energy supply in the Union, promote energy efficiency and energy saving and the development of new and renewable forms of energy and promote the interconnection of energy networks. Source: The SEA, Treaty of Maastricht, Treaties of Lisbon and Leenshow, A., Environmental Policy: Contending Dynamics of Policy Change, Oxford University Press, 2010, p.311.

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Table 1 provides the principles and legislative procedures that relate the three main policies related to environment (trade, environment and energy), excluding implementation and enforcement. It starts with the Single European Act (SEA), the first official legal basis for the EU environmental policy. The SEA introduces the principle of polluters should pay. The TEC (Maastricht amendment) gives environmental protection and internal market a conciliation tool with article 2, which introduces the sustainable growth respecting the environment principle. However, this principle is not defined anywhere else in the Treaty. Thus, the extension of QMV to almost all environmental policy areas does not necessarily position environmental policy at the same level of competition or internal market. It is all the more evident when we look at the provisions in the title XIX dedicated to environment, in which certain measures involving finance and energy still have to be taken unanimously. The Treaties of Lisbon strengthens EU environmental policy by stating that environmental responsibility and sustainability as principles of EU Law (art. 11 TFEU) and parts of the Unions external Action (article 21 TEU), and by introducing the precautionary and integration principles. However, these principles are not hard principles and still lack concrete legal definitions. Moreover, article 192(2) TFEU allows unanimity for measures involving the choice of Member States between different energy sources and the general structure of its energy supply. This gives room for energy policy to join the camp of free trade. This is even more flagrant with the article 194 TFEU which states the specific aims of the EU energy policy: (a) ensure the functioning of the energy market; (b) ensure security of energy supply in the union; (c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; (d) promote the interconnection of energy networks. Which one, between environmental protection and energy policy, should prevail in case of confrontation? Thus, EU Treaty articles on environmental and energy policies themselves are soft and ambiguous (if not contradictory). Furthermore, there exists another ambiguity concerning the way EU legislation view common market and environmental policy. Indeed, this is reflected by the contradiction between the article 192-193 TFEU (on environmental protection) and article 114 TFEU (on internal market). Indeed, the convergence of these two articles reveals first that the environment should be protected at a high level, but then Member States are only allowed to apply more stringent protections (gold plating) after being given authorisation by the Commission and under strict conditions, the most important of which is that these protectionist measures should not constitute barriers to common market (free trade and movement of goods). This is justified by the fact that common market is a key objective of the EU, instituting internal market as the level playing field. In fact, this ambiguity reflects the EUs attempt to put environmental protection at the same level as free trade and movement of goods. However, this legal framework does not give a clear position on how the EU can conciliate free trade and environment, nor it gives a clear position on how the EU sees the balance between the environment policy and energy policy. It leaves discretion to EU institutions and Member States to judge on this matter. However, the European Court of Justice (ECJ) also plays an important role36.
36

For an explanation of the roles of each EU institutions, see: Op. Cit., Leenshow, 2010, pp.307-330.

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In summary, the three different interests seem to be in conflict in the EU legislation. Its framework seems to see the necessity to protect environment at a high level of protection, but it does so as long as it does not constitute an obstruction to the internal market and as long as it does not obstruct the free choice of each Member States to use its own energy resources and the 4 objectives on energy policy stipulated in the article 194 TEU. It is left to the EU institutions to decide. Nonetheless, it gives a general framework of legislation for environmental and energy policies that are applicable to the Member States, notwithstanding some weakness in implementation and enforcement. How do EU institutions balance these interests? It is a very complex question. To partly answer it, it is necessary to analyse the coordination of trade, energy and environmental policies in the EU.

(b) EU policies coordination: contestation and flexibility The coordination of trade, energy and environmental policies in the EU is applied in concordance with the general system of coordination of policies in the EU, which is very complex and does not solve many issues. Here, I will try to give a simplified explanation with the help of Joanne Scotts analysis37. Scott identifies two most important features of policy coordination in the European Union: standards and harmonizing legislation, which work within a system of correlation between contestation and flexibility. According to Scott, they are important instruments of policy coordination in the EU and play a crucial role in securing market integration38. These instruments enjoy considerable authority followed by all EU bodies, including the Member States and the ECJ. However, this authority is contingent, not absolute, since the instruments in question remain susceptible to contestation39. The definition of harmonized standards is given in the EUs guide on implementation of directives published in 2000: Harmonised standards are European standards, which are adopted by European standards organisations, prepared in accordance with the General Guidelines agreed between the Commission and the European standards organisations, and follow a mandate issued by the Commission after consultation with the Member States40

37

Op. Cit., Scott, 2004, pp. 313-323. Ibid., p. 313. Ibid., p. 315.

38

39

40

European Commission, Guide to the Implementation of Directives Based on the New Approach and the Global Approach, 2000. The standards organisations in question are mainly CEN (European Committee for Standardisation), CENELEC (European Committee for electronical Standardisation) and ETSI (European Telecommunications Institute). They are recognised by Directive 98/34 OJ 1998 L204/37, Article 1(7) and Annex 1.

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Is it possible to contest these standards set by the Commission and the European standards organisations? Although the compliance with harmonised standards is not, in principle, rebuttable41, it is simplified by the safeguard clause stipulated in the new approach directives. The way it works is this: The Member States or the Commission (and only them) may inform a Community-level committee (the notification committee) about the contested standards. The Commission is then obliged to determine whether it is necessary to withdraw the standards, under the light of the committees opinion. Scott argues that the fact that this system of contestation is made through administrative way rather than through lengthy judicial proceedings and that the emphasis of the regulation is placed upon ends rather than means make them susceptible to adjustments, therefore continuously responsive to technological improvements or gains in knowledge and understanding42. However, the other side of the coin is that private parties (including industry and consumers) who also has the knowledge and are concerned by these standards are excluded (thus depriving these standards of the opinions of those who have economic interests in them), while the Commission and the Member States are given a wide latitude of discretion. It is necessary to add here that it is very difficult, if not almost impossible, for a legal person to start a legal procedure against an EU institution on the basis of Article 265 TFEO on failure to act43. Nonetheless, the standards harmonisation may be contested. Concerning the harmonisation of legislation, it is important to mention the three major principles upon which EU Law is based: attributed power, subsidiarity and the proportionality. The first stipulates that the scope of the EU competence to legislate is limited to the areas conferred to it by the Member States, the second that EU actions should only be taken when it is necessary and more efficient to do so at the EU level rather than at the Member States level in order to bring EU actions as closely as possible to citizens, and the third that EU policy measures should not exceed what is necessary to achieve the aims. Scott proves that again, these principles are not that strict, in that the EU harmonizing legislation remains vulnerable44. She posits some arguments: First, in order to challenge a community act, the burden of proof is borne by the party who challenge the act. Second, in the case of EU measures, ECJs reviews are rather lenient, especially concerning highly complex cases involving thorough scientific end economic questions. On these cases, ECJ puts more emphasis in the procedure rather than the fact itself. Indeed, EU institutions enjoy a wide margin of discretion to adopt protective measures, as long as it complies to its duty to provide the Court with a scientific risk assessment before doing so and that the decisions of the EU institutions are taken based on the principles of excellence, independence and transparency.

41

Scott believes that this is arguable. See Op. Cit., Scott, 2004, p. 315. Ibid., p. 316. No case has yet succeeded. See, for instance, ECJ Case 246/81, Lord Bethell v. Commission. Op. Cit., Scott, 2004, pp.318-320.

42

43

44

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Finally, the precautionary principle45 mentioned previously lacks a clear and concrete legal definition.

Annex II: EU-ASEAN FTA Negotiation

April: EU Council mandate. Commission decided to go for a regional approach on the negotiation.

2007

May: the EU-ASEAN economic ministers meeting in Brunei agreed to enter into negotiations for a Free Trade Agreement.

20072009

Seven negotiations rounds with the ASEAN. At the last round in March 2009, both sides agreed to take a pause in the negotiations in order to reflect on the appropriate format of future negotiations.

2009

Spring: : Commission report on the EU-ASEAN negotiations Bilateral FTA negotiations with individual ASEAN countries envisaged (but possible opening for region to region agreement).

Negotiations with Singapore and Malaysia launched

2010

45

Implies that when there is no consensus within the scientific community on the risk that a measure might cause, then the slightest suspicion of risk should give a valid and sufficient reason for the measure not to be taken. For critics on this principle, see

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