eu as a global green leader? assessing the eu’s environmental actions in southeast asia

8/13/2019 EU as a global green leader? Assessing the EUs environmental actions in Southeast Asia

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EU as a global green leader? Assessing the EU s environmental actions inSoutheast Asia

Karina Rinaldi-Doligez

Student Id.: S1139711

EU Environmental Poicy

Leiden University - MA International Relations: EU Studies


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Table of Contents

Abstract..p. 3

Introduction .p. 4 -5

Challenges in implementing environmental norms in both regions and the bumpy roadtowards co operation............pp. 5 -10

Assessing the possible solutions...p p. 10-15

Conclusion....p p. 15-16

Bibliography ...p. 17-18

Annexes .pp. 1 9-22

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


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Abstract

With the stringency of its environmental legislations and its commitment and drive to promote fightagainst climate change, the EU distinguishes itself on the global stage, expressing its ambition tobecome a global green leader. This paper tries to anal yse a specific case of this aim with the viewto depict one of the aspects of the EUs promotion of environmental norms on the global scale: thecase 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 weaknesses 1. However, it does not suggest that inter-regionalismcannot be complementary to a global governance. In fact, this study will show that the possibility forit to thrive and be successful is very limited. Yet, there are lessons that can be learned from it, mainlythat: (a) a structural approach to environmental issues, if it works in the case of the EU, cannot beapplied to ASEAN, (b) green politics, as part of the Green political theory expressed by Paterson,

Dobson and Eckersley 2 , seem to provide a better alternative approach (c) global environmental governance can be complemented by regional environmental governance 3 , thus from this perspectiveinter-regionalism can serve as a tool to a mutual acquisition of environmental acquis .

1 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 theoryand 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.


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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 weaknesses 4. 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 itto 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 Eckersley 5, seem to provide a better alternative approach

(c) global environmental governance can be complemented by regional environmental

governance 6, 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

4 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 theoryand 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.


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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 CO-

OPERATION

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 differentin so many aspects that one would wonder if it even make sense to compare them. I argue the

contrary 7. Indeed, while the EUs integrati on 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 CameronsEurope speech confirms this claim), and ASEAN has surprisingly managed to accomplish

effective common resolutions of differences between its member countries 8. 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

7 For the difference between the different forms of regional integration and the relevance of comparing EU andASEAN, see: Detlef, L., Regionalisation versus regionalism Problems of change in the world economy ,Intereconomics, Vol. 26, No. 1, 1991, pp. 3-10 and Warleigh-Lack, A., Van Langenhove, L., Rethinking EUStudies: 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.


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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 agreements 9. 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

Act 10. 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 commitmen t 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 purposes 11 . It also has a

system of decision making on environment matters (Figure 1).

9 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 SEAsince 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.
http://ec.europa.eu/environment/international_issues/pdf/agreements_en.pdfhttp://ec.europa.eu/environment/international_issues/pdf/agreements_en.pdfhttp://ec.europa.eu/environment/international_issues/pdf/agreements_en.pdf


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Figure 1. ASEAN decision-making process on environmental matters 12

It has adopted certain measures and instruments on environmental matters 13. Moreover, it has

signed and ratified 10 multilateral environmental agreements 14.

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 sovereignty 15. 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.

13 See Ibid .

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

15 This is also the case for the Treaty of Amity and Cooperation in Southeast Asia which is the pre-condition fora 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 withASEAN. The EU and the US signed the Treaty in 2009.

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
http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/http://environment.asean.org/asean-working-group-on-multilateral-environmental-agreements-awgmea/


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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 Subregi on) 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

cooperation 17 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. Theyare designed with the view to create pillars of Community inspired by the European Maastricht model.


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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 perspective 18. 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 th e Hanoi Plan of Action of 1998 which has resulted in the proactive

process of building the regional community 19. Moreover, he states that environmental

policy-making in ASEAN is not simply state-centred 20 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 1995 21. 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 procedure 22. 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 case 23.

18 Op. Cit., Usui, 2007.

19 Ibid. , p. 12.

20 Ibid ., p. 14.

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, andDas, D. K., How did the Asian economy cope with the global financial crisis and recession? A revaluation andreview , Asia Pacific Business Review, Vol. 18, No. 1, January 2012, pp. 7-25.


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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 approach 24 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 (ozone layer), the present

quality of which has been thoroughly affected by DCs past production and presentconsumption 25.

The EU has even made the situation worse by indulging itself in to green

protectionism, i n 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 paper 27. 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 protectionistmeasures using environment discourse can produce a chilling effect on environmental

24 Op. Cit ., Scott, 2004.

25 Quoted in Boas, M., The Trade-Environment Nexus and the Potential of Regional Trade Institutions , NewPolitical 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 April2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealingDirectives 2001/77EC and 2003/30/EC.

27

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


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negotiations 28. 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 rule 29. Boas adds 30: 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 7 th 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.


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publications 31. 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
http://www.sea-eu.net/project/object/document/listhttp://www.sea-eu.net/project/object/document/listhttp://www.sea-eu.net/project/object/document/listhttp://www.sea-eu.net/project/object/document/list


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Table 1. DELGOSEA criteria for Best Practices and Pilot Cities 32

Best Practices (BP) Pilot Cities (PC)

- Should be innovative in one of four aspectsof fields in local governance;

- Have a high transferability potential, taking

into account the administrative and political

environment as well as social-cultural factors;

- Be of a sustainable character;

- Be reasonable in institutional as well as in

financial viability aspects;

- Be cost-efficient;

- Respect for Good Governance Principles of

the United Nations.

- Recent history of good performance and goodtrack record in exercising local government

functions;

- A solid potential of human ressources and

adequate qualification and availability of staff;

- Strong leadership quality of the mayor and

senior local government officials, and their

willingness to improve existing mechanisms and

procedures for peoples participation;

- Sufficient experience and competence in the

thematic fields;

- A clear commitment by local officials to

become a pilot municipality including

commitment for financial contributions if

necessary.

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


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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 Asia 33. 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 donors 34) 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 overenvironmental concerns. Ironically, EU s 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, socio-

economic 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 growingconcern 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. 18.34 Ibid .


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- 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-operation 35;

- 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, OECDTrade and Environment Working Papers 2011/01.


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Das, D. K., How did the Asian economy cope with the global financial crisis and recession? Arevaluation and review , Asia Pacific Business Review, Vol. 18, No. 1, January 2012, pp. 7-25.

Detlef, L., Regionalisation versus regionalism Problems of change in the world economy ,Intereconomics, Vol. 26, No. 1, 1991, pp. 3-10.

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.

Eckersley, Robyn. The green state: Rethinking democracy and sovereignty . MIT Press, 2004; Dobson,A., Critical theory and green politics , ECPR, University of Essex, 1991.

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

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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 Articles Principles and legislativeprocedures

SEA (1987) 100a,b TECTitle IV (arts. 130r-t)TEC

- First official legal base- Protection of environment at highlevel- Allows- Environment=component of otherCommunitys policies - Polluter should pay- Unanimous vote with the

possibility for QMV when theCouncil decides to do so- Consultation with EP and EESC

Maastricht Treaty (1993) 2 TEC95 TECTitle XIX (174-176)TEC

- Sustainable growth respectingthe environment principle - Environment attached to commonmarket- Extend QMV to most areas ofenvironmental policy

Amsterdam Treaty (1999) - Co-decision Procedure

Nice Treaty (2003) - Threshold for QMV raisedTreaties of Lisbon (2009) Preamble, 3 TEU

4 TEU11 TFEU21 TEU114 TFEUTitle XX (191-193)TFEUTitle XXI (194) TFEU

- Environment, transport andenergy Shared EU competences- Environmental responsibility andsustainability=principle of EU Law- Environment part of the Unionsexternal action- Precautionary and integration

principles- Revision of QMV (replacingweighted voting in the Council),Ordinary Legislative Procedure.- Introduction of Energy Title(prospectively strengtheningclimate policy), with strong linkagewith environmental policy,Ordinary Legislative Procedure andspecific objectives*.

* Article 194 TFEU: Ensure the functioning of the energy market, ensure security of energy supply in the Union, promoteenergy efficiency and energy saving and the development of new and renewable forms of energy and promote theinterconnection of energy networks.

Source: The SEA, Treaty of Maastricht, Treaties of Lisbon and Leenshow, A., Environmental Policy: Contending Dynamicsof 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 implementationand enforcement. It starts with the Single European Act (SEA), the first official legal basisfor the EU environmental policy. The SEA introduces the principle of polluters should pay.

The TEC (Maastricht amendment) gives environmental protection and internal market aconciliation tool with article 2, which introduces the sustainable growth respecting theenvironment 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 themore evident when we look at the provisions in the title XIX dedicated to environment, inwhich certain measures involving finance and energy still have to be taken unanimously. TheTreaties of Lisbon strengthens EU environmental policy by stating that environmentalresponsibility and sustainability as principles of EU Law (art. 11 TFEU) and parts of theUnions external Action (art icle 21 TEU), and by introducing the precautionary andintegration principles. However, these principles are not hard principles and still lackconcrete legal definitions. Moreover, article 192(2) TFEU allows unanimity for measuresinvolving the choice of Member States between different energy sources and the generalstructure of its energy supply. This gives room for energy policy to join the camp of freetrade. This is even more flagrant with the article 194 TFEU which states the specific aims ofthe EU energy policy: (a) ensure the functioning of the energy market ; (b) ensure security ofenergy supply in the union ; (c) promote energy efficiency and energy saving and thedevelopment of new and renewable forms of energy ; (d) promote the interconnection ofenergy 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 viewcommon market and environmental policy. Indeed, this is reflected by the contradiction

between the article 192-193 TFEU (on environmental protection) and article 114 TFEU (oninternal market). Indeed, the convergence of these two articles reveals first that theenvironment should be protected at a high level, but then Member States are only allowedto apply more stringent protections (gold plating) after being given authorisation by theCommission and under strict conditions, the most important of which is that these

protectionist measures should not constitute barriers to common market (free trade andmovement of goods). This is justified by the fact that common market is a key objective ofthe EU, instituting internal market as the level playing field. In fact, this ambiguity reflectsthe EUs attempt to put environmental protection at the same level as free trade andmovement of goods. However, this legal framework does not give a clear position on how theEU can conciliate free trade and environment, nor it gives a clear position on how the EUsees the balance between the environment policy and energy policy. It leaves discretion toEU institutions and Member States to judge on this matter. However, the European Court ofJustice (ECJ) also plays an important role 36.

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 aslong 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 tothe EU institutions to decide. Nonetheless, it gives a general framework of legislation forenvironmental and energy policies that are applicable to the Member States, notwithstandingsome weakness in implementation and enforcement. How do EU institutions balance theseinterests? It is a very complex question. To partly answer it, it is necessary to analyse thecoordination 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 inconcordance with the general system of coordination of policies in the EU, which is verycomplex and does not solve many issues. Here, I will try to give a simplified explanation withthe help of Joanne Scotts analysis 37. Scott identifies two most important features of policycoordination in the European Union: standards and harmonizing legislation, which workwithin a system of correlation between contestation and flexibility. According to Scott, theyare important instruments of policy coordination in the EU and play a crucial role insecuring market integration 38. These instruments enjoy considerable authority followed byall EU bodies, including the Member States and the ECJ. However, this authority is

contingent, not absolute, since the instruments in question remain susceptible tocontestation 39.

The definition of harmonized standards is given in the EUs guide on implementationof directives published in 2000:

Harmonised standards are European standards, which are adopted by European standards organisations, prepared in accordance with the General Guidelines agreedbetween the Commission and the European standards organisations, and follow amandate issued by the Commission after consultation with the Member States 40

37 Op. Cit ., Scott, 2004, pp. 313-323.

38 Ibid ., p. 313.

39 Ibid ., p. 315.

40 European Commission, Guide to the Implementation of Directives Based on the New Approach and theGlobal Approach , 2000. The standards organisations in question are mainly CEN (European Committee forStandardisation), 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) andAnnex 1.


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Is it possible to contest these standards set by the Commission and the European standardsorganisations? Although the compliance with harmonised standards is not, in principle,rebuttable 41, it is simplified by the safeguard clause stipulated in the new approachdirectives. 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 contestedstandards. The Commission is then obliged to determine whether it is necessary to withdrawthe standards, under the light of the committees opinion. Scott argues that the fact that thissystem 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 thanmeans make them susceptible to adjustments, therefore continuously responsive totechnological improvements or gains in knowledge and understanding 42. However, the otherside of the coin is that private parties (including industry and consumers) who also has theknowledge and are concerned by these standards are excluded (thus depriving these standardsof the opinions of those who have economic interests in them), while the Commission and theMember States are given a wide latitude of discretion. It is necessary to add here that it isvery difficult, if not almost impossible, for a legal person to start a legal procedure against anEU institution on the basis of Article 265 TFEO on failure to act 43. Nonetheless, the standardsharmonisation 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 limitedto the areas conferred to it by the Member States, the second that EU actions should only betaken when it is necessary and more efficient to do so at the EU level rather than at theMember States level in order to bring EU actions as closely as possible to citizens, and thethird 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 legislationremains vulnerable 44. She posits some arguments: First, in order to challenge a communityact, the burden of proof is borne by the party who challenge the act. Second, in the case ofEU measures, ECJs reviews are rather lenient, especially concerning highly complex casesinvolving thorough scientific end economic questions. On these cases, ECJ puts moreemphasis in the procedure rather than the fact itself. Indeed, EU institutions enjoy a widemargin 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 EUinstitutions 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.

42 Ibid ., p. 316.

43

No case has yet succeeded. See, for instance, ECJ Case 246/81, Lord Bethell v. Commission.44 Op. Cit ., Scott, 2004, pp.318-320.


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Finally, the precautionary principle 45 mentioned previously lacks a clear and concrete legaldefinition.

Annex II: EU-ASEAN FTA Negotiation

45

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

2007

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

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

2007-2009

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

2009

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

2010

Negotiations with Singapore and Malaysia launched

eu as a global green leader? assessing the eu’s environmental actions in southeast asia

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