10.6092/issn.2531-6133/18009
Since the dawn of the era inaugurated by the 2006 Global Europe communication, the European Union (E.U.) has emerged as a key international actor in the negotiation and conclusion of ambitious New Generation Free Trade Agreements (N.G.F.T.A.s), striking to counterbalance commercial liberalization also with the enhancement of environmental safeguard. Interestingly, the latter represents for the Union not merely a policy goal, but a core normative target embedded in the founding treaties. A rationale which has thus been transposed to N.G.F.T.A.s by means of ad hoc Trade and Sustainable Development (T.S.D.) Chapters - including given green clauses dedicated to a vast array of eco-related domains. Nonetheless, ambiguities continue to subsist with regard to the enforcement phase of the present Chapters, having been at the center of an intense debate. Against the illustrated backdrop, this article is to focus on the major deficiencies characterizing green clauses’ enforceability both from an upstream and a downstream perspective. First, the identified pillar environmental provisions will be assessed in their semantic formulation. Secondly, attention will be paid to the specialis, non-confrontational, approach to dispute settlement provided for by T.S.D. Chapters, disregarding reliance on countermeasures in the case of non-compliance. In order to introduce innovative inputs to the research, relevance is to be conferred to the E.U. political guidelines for T.S.D. Chapters announced by the June 2022 Power of Trade Partnerships communication. Whereas it will be ultimately demonstrated that the latter document has managed to open the door to a novel season for N.G.F.T.A.s’ environmental enforcement. It is believed that further room for normative clarification seems to be appropriate.
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Virginia Remondino
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University of Bologna Law Review
European Green Deal
New Generation Free Trade Agreements at a Crossroads. Assessing Environmental Enforcement of the E.U.’s Trade and Sustainable Development Chapters from Global Europe to the Power of Trade Partnerships Communication
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2023-05-08
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149-186
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Virginia Remondino
2023/09/18
10.6092/issn.2531-6133/18009
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University of Bologna
2531-6133
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New Generation Free Trade Agreements at a Crossroads. Assessing Environmental Enforcement of the E.U.’s Trade and Sustainable Development Chapters from Global Europe to the Power of Trade Partnerships Communication
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8
llVOLUME 8                                   llISSUE 1                      CONFERENCE PAPERS



                             UNIVERSITY OF BOLOGNA LAW REVIEW
                             https://doi.org/10.6092/issn.2531‐6133/18009

             Received: 13 Oct. 2022 | Accepted: 16 Nov. 2022 | Published: 18 Sept. 2023

                                                  A

  New Generation Free Trade Agreements at a Crossroads.
Assessing Environmental Enforcement of the E.U.’s Trade and
Sustainable Development Chapters from Global Europe to the
        Power of Trade Partnerships Communication


                                        VIRGINIA REMONDINO

Virginia Remondino obtained a master’s degree cum laude at the University of Bologna (Italy)
and she is currently a PhD Candidate in European Union Law at the department of legal studies of
the University of Bologna (Italy). Previously, she worked as a project intern at the International
Affairs Institute (IAI), where she collaborated with the Climate, Energy and Resources research
team. Her research interests revolve around External Trade and Environmental Sustainability,
with a specific focus on the interconnection entwining the EU Free Trade Agreements and the
international climate change regime. The Author would like to thank the anonymous reviewers
for their valuable comments. All errors remain hers.

 @ virginia.remondino2@unibo.it
  ID
       0009-0000-3719-7351


                                             ABSTRACT

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



                                                 149
                   NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


                                                    KEYWORDS
    E.U. Free Trade Agreements; Common Commercial Policy; Environmental Protection; Dispute Settlement
                                    Mechanisms; European Green Deal.


                                           EDITORIAL NOTE
      This contribution was presented during the “EDELNet+ PhD Conference on Climate Change”,
     Human Rights and Public Control: Legal Scholarship in the Face of Current Global Challenges
     that took place online on 13 October 2022 and was led by Prof. Giacomo di Federico, Dr. Juan J.
              Garcia Blesa and Dr. Michal Stambulski (http://graduateschool.edelnet.eu).
       This conference paper was subject to a single-blind peer review, in which the anonymity
                                    of the reviewer was guaranteed.


                                              TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           150
1. Promoting Environmental Interests Through External Trade Tools: A Primary Law
   Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          158
2. Upstream Enforcement: Content and Ratio of Environmental Provisions in New
   Generation F.T.A.s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          162
        2.1. Clauses Referring to Ratification or Implementation of Multilateral
           Environmental Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                164
        2.2. Right to Regulate and Levels of Protection Clauses . . . . . . . . . . . . . . . . .              168
        2.3. Upholding Levels of Protection Clauses . . . . . . . . . . . . . . . . . . . . . . .              170
3. Downstream Enforcement: A Specialis Dispute Settlement Mechanism and the Lack of
   Economic Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            171
4. The Road Forward: Novelties Ahead in the Era of the European Green Deal . . . . . . . . .                   177
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           183
ANNEX I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          185




        INTRODUCTION

The debate on the interlinks between the promotion of international trade and
environmental protection is no novelty in the doctrinal discussion - including the works
of several scholars.1 Such an intricate relation presents both bright and bleak sides.
Whilst, on the one hand, commercial intercourses at a global level might effectively
contribute to increase domestic incomes, hence allowing States to assign more economic
1
    For an overview on the relationship between international trade and environmental protection see Steve
    Charnovitz, Free Trade, Fair Trade, Green Trade: Defogging the Debate, 27 CORNELL INT’L L. J. 459 (1994); EDITH
    BROWN WEISS ET AL., RECONCILING ENVIRONMENT AND TRADE (Brill, 2th ed. 2008); Brian R. Copeland & M.
    Scott Taylor, Trade and the Environment: Theory and Evidence (Princeton University Press, 2005); Barbara
    Cooreman, Global Environmental Protection through Trade: A Systemic Approach to Extraterritoriality
    (Edward Elgar Publishing, 2017); Elena Cima, From Exception to Promotion: Re-Thinking the Relationship
    between International Trade and Environmental Law (Brill, 2021).


                                                        150
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resources abstractly to environmental protection.                        On the other hand, extensive
liberalization in international commercial exchanges might well lead to higher
consumption and pollution, also quickening the overuse of natural capitals.
          In light of the presented background, various normative instruments have, over
the past decades, been put forward to address the trade-and-environment nexus, both at
international and European Union [hereinafter E.U.] level. With regard to the former,
sustainability concerns connected to commercial patterns started to affirm in the late
1980s. In particular, the 1987 Brundtland Report, advancing a definition of sustainable
development as “development that meets the needs of the present without
compromising the ability of future generations to meet their own needs”,2 further
emphasized the exigence to consider “the ecological dimension of policy at the same
time as the economic, trade, energy, agricultural and other dimensions”.3 Subsequently,
the 1992 Rio Declaration on Environment and Development demanded States both to
reduce or eliminate unsustainable patterns of production and consumption,4 and to
cooperate as to uphold an environmentally sound international economic system.5 Ten
years later, in the bosom of the 2002 Johannesburg Summit on Sustainable Development,
the tripartite structure of sustainable development was affirmed with environmental
protection constituting one of its operational pillars.6 Additionally, the Johannesburg
Plan of Implementation urged the international Community to “play an active role”7 in
the eradication of unsustainable patterns of production and consumption, also by
“delinking economic growth and environmental degradation”.8
          Coming to present days, the United Nations Agenda 2030 envisages international
trade as an “engine for inclusive economic growth”,9 capable of contributing to the

2
  Rep. of the W.C.E.D.: Our Common Future, U.N. Doc. A/42/427, at Chapter 2, ¶ 4 (Aug. 4, 1987).
3
  Id. ¶ 38.
4
  U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, Principle
  8, U.N. Doc. A/CONF.151/26 (Vol. I), annex I (Aug. 12, 1992).
5
  Id. at Principle 12.
6
  According to the Johannesburg plan of implementation, environmental protection was regarded as a specific
  component of sustainable development, along with economic and social development. See World Summit
  on Sustainable Development (W.S.S.D.), Johannesburg Summit, U.N., Johannesburg Plan of Implementation, Doc.
  A/CONF.199/L.7 (Aug. 24 - Sept. 4, 2002) [hereinafter Johannesburg Plan of Implementation], ¶ 2. The
  tripartite structure of sustainable development was later confirmed at the 2012 Rio+20 Conference. See
  Rio +20 U.N. Conference on Sustainable Development, The Future We Want: Outcome document of the United
  Nations Conference on Sustainable Development, ¶ 3, U.N. Doc. A/CONF.216/L.1 (June 20-22, 2012). For a
  detailed comment on the principle of sustainable development in international law, see NICO J. SCHRIJVER, THE
  EVOLUTION OF SUSTAINABLE DEVELOPMENT IN INTERNATIONAL LAW: INCEPTION, MEANING AND STATUS (Cambridge
  University Press, 2008); Virginie Barral, Sustainable Development in International Law: Nature and Operation of an
  Evolutive Legal Norm, 23 EUR. J. INT’L L. 377 (2012); MALGOSIA FITZMAURICE ET AL., ENVIRONMENTAL PROTECTION
  AND SUSTAINABLE DEVELOPMENT FROM RIO TO RIO+20: PROTECTION DE L’ENVIRONNEMENT ET DEVELOPPEMENT DURABLE
  DE RIO A RIO+20 (Cambridge University Press, 2014).
7
  Johannesburg Plan of Implementation, supra note 6, ¶ 14.
8
  Id.
9
  G.A. Res. 70/1, ¶ 68 (Oct. 21, 2015).
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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


promotion of sustainable development. The document further stresses the need to
continue promoting an equitable multilateral trade system, under the aegis of the World
Trade Organization [hereinafter W.T.O.].10
           As a matter of fact, the 1994 Marrakesh Agreement used the notion of
sustainable development in its Preamble, acknowledging that the Parties’ trade and
economic endeavor shall be conducted by duly taking into consideration the “optimal
use of the world’s resources in accordance with the objective of sustainable
development”,11 to preserve and safeguard the environment. Under this viewpoint, the
W.T.O. Agreement innovates in comparison with the 1947 General Agreement on Tariffs
and Trade [hereinafter G.A.T.T.], in which environmental contemplations were
incorporated limitingly by means of a general exception clause.12
           Widespread integration of environmental considerations in normative
documents, notwithstanding stalemates in international trade negotiations at the heart
of the W.T.O. Doha round, marked a dead-end in the global promotion of
trade-and-environment issues as components of a large scale commerce agenda,13 thus
leading key players - including the E.U. - to turn from multilateral to bilateral regulatory
trade tools in dealing with green issues related to business patterns.14




10
   Id.
11
   Marrakesh Agreement Establishing the World Trade Agreement, Apr. 15, 1994, 1867 U.N.T.S. 154.
12
   See General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194. Relevant to the
   present analysis are, in particular, letter b (measures necessary to protection human, animal or plant life or
   health) and letter g (measures relating to the conservation of exhaustible natural resources if such measures
   are made effective in conjunction with restrictions on domestic production or consumption) of Article XX,
   G.A.T.T. 1947. It proves essential to remember that, under the profile of environmental integration, the
   G.A.T.T. 1947 mirrored the spirit of its time, in which ecological concerns were not of particular relevance
   to the international Community. For an overview on the emergence and evolution of the trade-and-
   environment nexus in international trade law see Hyo Won Lee & Johann Park, Free Trade and the Environment
   under the GATT/WTO: Negative or Compatible Relationship?, 28 J. INT’L & AREA STUD. 119 (2021).
13
   Interestingly, by means of the Doha Ministerial Declaration of 2001, the Parties still underlined the necessity
   to enhance the mutual supportiveness of trade and environment, agreeing to negotiations on selected issues.
   See World Trade Organization, Ministerial Declaration of 14 November 2001, WTO Doc. WT/MIN(01)/DEC/1,
   41 ILM 746 (2002), ¶ 31.
14
   See Edward D. Mansfield & Eric Reinhardt, Multilateral Determinants of Regionalism: The Effects of GATT/WTO on
   the Formation of Preferential Trading Arrangements, 57 INT’L ORG. 829 (2003); Surya P. Subedi, The Road from Doha:
   The Issues for the Development round of the W.T.O. and the Future of International Trade, 52 Int’l & Compara. L. Q.
   425 (2003); Richard Tarasofsky & Alice Palmer, The WTO in Crisis: Lessons Learned from the Doha Negotiations
   on the Environment, in 82 Int’l Aff. 899 (2006); Richard Baldwin, The World Trade Organization and the Future of
   Multilateralism, 30 J. Econ. Persp. 95 (2016).


                                                         152
2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 8:1


With the pendulum swinging from multilateralism to bilateralism in the normativization
of the trade-and-environment nexus and settling on the latter, the E.U. 2006 Global
Europe Communication15 [hereinafter G.E.C.] officially inaugurated the season of New
Generation Free Trade Agreements [hereinafter N.G.F.T.A.s]16 providing for a proper
external dimension to the previously adopted Lisbon Strategy.17 By acknowledging the
need to “equip Europeans for globalization”,18 the former document resulted in bilateral
trade agreements as normative vehicles capable of tackling issues - including
environmental ones - not ready for proper discussion at the multilateral trade forum. In
the Commission’s words, N.G.F.T.A.s might thus represent stepping stones, instead of
stumbling blocks,19 for international trade liberalization, as long as they were:
“comprehensive in scope, provide for liberalisation of substantially all trade and go
beyond W.T.O. disciplines”.20
           Along with setting the trajectory for a broadened and deepened regulatory
content, the Global Europe communication further managed to identify criteria for
selecting novel Free Trade Agreements [hereinafter F.T.A.s] partners, first and foremost
by taking into consideration their market potential - conceptualized as economic size
and growth, as well as the presence of tariff and non-tariff barriers. Eventually, the need
to work to reinforce sustainable development through bilateral trade relations had been
recognized, mostly by means of the merger of ad hoc cooperative provisions.21
           Under this regard, the G.E.C. transposed an integrated approach to sustainable
development, thus conferring relevance to its three distinct but entwined structural

15
   Communication from the Commission to the Council, the European Parliament, the European Economic and Social
   Committee and the Committee of the Regions, Global Europe: Competing in The World: A Contribution to the EU’s Growth
   and Jobs Strategy, COM (2006) 567 final (Oct. 4, 2006).
16
   According to the definition provided by the Court of Justice, New Generation Free Trade Agreements entail
   agreements which contain: “[I]n addition to the classical provisions on the reduction of customs duties
   and of non-tariff barriers to trade in goods and services, provisions on various matters related to trade,
   such as intellectual property protection, investment, public procurement, competition and sustainable
   development”. Opinion 2/15, ECLI:EU:C:2017:376 [hereinafter Opinion 2/15], ¶ 17 (May 16, 2017).
17
   Communication from the Commission to The Spring European Council: Working together for growth and jobs: A new
   start for the Lisbon Strategy, COM (2005) 24 final (Feb. 2, 2005).
18
   Communication from the Commission, supra note 15. Parallelly to the adoption of the Global Europe
   Strategy, in the same year the renewed E.U. strategy for Sustainable Development was adopted, in which the
   importance for both the Commission and Member States to step up efforts as to render global trade a tool for
   achieving sustainable development was stressed, also by means of cooperation with international trading
   partners. See Council Review of the EU Sustainable Development Strategy (EU SDS) - Renewed Strategy, Doc.
   N.10117/06, at 21 (June 9, 2006).
19
   For an overview of the doctrinal debate regarding the picturing of F.T.A.s as either stumbling blocks or
   stepping stones of the international trading systems, see Richard Senti, Regional Trade Agreements: ‘Stepping
   Stones’ Or ‘Stumbling Blocks’ of the WTO?, in REFLECTIONS ON THE CONSTITUTIONALISATION OF INTERNATIONAL
   ECONOMIC LAW: LIBER AMICORUM FOR ERNST-ULRICH PETERSMANN 441 (Marise Cremona, Nikolaos Lavranos &
   Peter Hilpold eds., 2013).
20
   Communication from the Commission, supra note 15, at 8.
21
   Id. at 9.


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                   NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


pillars.22 Whereas the Global Europe Communication did not, per se, epitomize a stark
innovation in the assimilation of green variables into the Union’s external trade policy
tools,23 it did, however, configure an improvement in providing guidance to
systematically address given sustainability concerns, while also laying down the
foundations for more recent policy documents specifically contemplating the
trade-and-environment nexus. Amongst the most relevant and worth mentioning are
the 2015 Trade for All communication;24 restating the necessity for the E.U. trade policy
going hand in hand with respect for environmental standards, along with the 2021 Trade
Policy Review,25 envisaging bilateral trade agreements as vehicles for the attainment of
the specific European Green Deal26 objectives, inter alia combating climate change and
environmental degradation.27
           Starting with the F.T.A. signed with the Republic of Korea in October 2010,28
several N.G.F.T.A.s with key trading partners were thus negotiated or concluded. As part
of a deep trade agenda,29 environmental provisions were consequently enshrined into a
vast array of trade deals, overcoming the original approach based on an exception-based
model in favor of a promotional archetypal, still with varying degrees of normative
approximation.30            The so-called Deep and Comprehensive Free Trade Agreements

22
   For an overview regarding the principle of sustainable development in E.U. law, see Sander R.W. van
   Hees, Sustainable Development in the EU: Redefining and Operationalizing the Concept, 10 UTRECHT L. REV. 60
   (2014); András Jakab, Sustainability in European Constitutional Law, in Intergenerational Justice in Sustainable
   Development Treaty Implementation: Advancing Future Generations Rights through National Institutions
   166 (Alexandra R. Harrington, Marcel Szabó & Marie-Claire Cordonier Segger eds., 2021).
23
   See Rok Žvelc, Environmental Integration in EU Trade Policy: The Generalised System of Preferences, Trade
   Sustainability Impact Assessments and Free Trade Agreements, in THE EXTERNAL ENVIRONMENTAL POLICY OF THE
   EUROPEAN UNION: EU AND INTERNATIONAL LAW PERSPECTIVES 174 (Elisa Morgera ed., 2012).
24
   Communication from the Commission to the European Parliament, the Council, the European Economic and Social
   Committee and the Committee of the Regions, Trade for All - Towards a More Responsible Trade and Investment Policy,
   COM (2015) 497 final (Oct. 14, 2015).
25
   Communication from the Commission to the European Parliament, the Council, the European Economic and Social
   Committee and the Committee of the Regions, Trade Policy Review - An Open, Sustainable and Assertive Trade Policy,
   COM (2021) 66 final Brussels (Feb. 18, 2021).
26
   Communication from the Commission to the European Parliament, the European Council, the Council, the European
   Economic and Social Committee and the Committee of the Regions: The European Green Deal, COM (2019) 640 final
   (Dec. 11, 2019). The European Green Deal was launched by the European Commission in December 2019,
   setting the Union’s commitment to tackle climate and environmental challenges. In particular, the Green
   Deal aims at transforming the E.U. into a society characterized by a resource-efficient economy, capable of
   attaining the objective of zero net emissions of greenhouse gases by 2050. See Micaela Falcone, Il Green Deal
   europeo per un continente a impatto climatico zero: la nuova strategia europea per la crescita tra sfide, responsabilità
   e opportunità, 2 STUDI SULL’INTEGRAZIONE EUROPEA 379 (2020) (It.); Marco Onida, Il Green Deal Europeo, in UNIONE
   EUROPEA 2020 - I DODICI MESI CHE HANNO SEGNATO L’INTEGRAZIONE EUROPEA 257 (CEDAM ed., 2021) (It.); Dario
   Bevilacqua, La normativa europea sul clima e il Green New Deal. Una regolazione strategica di indirizzo, 2 RIVISTA
   TRIMESTRALE DI DIRITTO PUBBLICO 297 (2022) (It.); Susanna Paleari, The Impact of the European Green Deal on EU
   Environmental Policy, 31 J. ENV’T & DEV. 196 (2022).
27
   Communication from the Commission, supra note 26, at 12.
28
   Free trade Agreement between the European Union and its Member States, of the one part, and the Republic
   of Korea, of the other part, E.U.-Korea, Oct. 6, 2011, O.J. L 127/7 [hereinafter E.U.-Korea F.T.A.].
29
   See BILLY A. MELO ARAUJO, THE E.U. DEEP TRADE AGENDA: LAW AND POLICY (Oxford University Press, 2016).
30
   See GRACIA MARíN DURáN & ELISA MORGERA, ENVIRONMENTAL INTEGRATION IN THE E.U.’S EXTERNAL RELATIONS:
   BEYOND MULTILATERAL DIMENSIONS (Hart, 2012).
                                                           154
2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 8:1


[hereinafter D.C.F.T.A.s] concluded with Ukraine,31 Moldova,32 and Georgia,33 in fact, aim
at gradually integrating the mentioned States in the Union’s internal market, through
the establishment of free trade areas and normative approximation.                                    Differently,
N.G.F.T.A.s, signed with “distant” commercial partners - including South Korea, Central
America,34 Andean Community,35 Canada,36 Japan,37 Singapore,38 Vietnam,39 Mexico,40
Mercosur,41 and New Zealand,42 mostly rely on cooperation in addressing ecological
concerns related to boosted trade liberalization. In this spectrum and on the basis of
homogeneity in content, the E.U.-U.K. T.C.A.43 also deserves reference.
           Yet, despite the Union’s pioneering role44 in including green variables in trade
agreements by means of ad hoc sustainability clauses, two considerations are necessary.
           First, the new generation free trade agreements do not denote an absolute
innovation in the process of incorporating environmental variables into external
normative instruments. In fact, the European Union had long advocated the necessity of
31
   Association Agreement between the European Union and its Member States, of the one part, and Ukraine,
   of the other part, opened for signature, E.U. - Ukraine, Mar. 21, 2014, O.J. (L 161) 1 [hereinafter E.U. - Ukraine
   A.A.].
32
   Association Agreement between the European Union and the European Atomic Energy Community and their
   Member States, of the one part, and the Republic of Moldova, of the other part, E.U.-Moldova, June 27, 2014,
   O.J. (L 260) 4 [hereinafter E.U.-Moldova A.A.].
33
   Association Agreement between the European Union and the European Atomic Energy Community and their
   Member States, of the one part, and Georgia, of the other part, E.U.-Georgia, June 27, 2014, O.J. (L 261) 4
   [hereinafter E.U.-Georgia A.A.].
34
   Agreement establishing an Association between the European Union and its Member States, on the one hand,
   and Central America on the other, E.U.-Central America, June 29, 2012, O.J. (L 346) 3 [hereinafter E.U.-Central
   America A.A.].
35
   Trade Agreement between the European Union and its Member States, of the one part, and Colombia
   and Peru, of the other part, E.U.-Andean Community, Dec. 21, 2012, O.J. (L 354) [hereinafter E.U.-Andean
   Community F.T.A.]. Agreement amended following the accession of Ecuador. See Protocol of Accession to
   the Trade Agreement between the European Union and its Member States, of the one part, and Colombia
   and Peru, of the other part, to take account of the accession of Ecuador, Dec. 11, 2016, O.J. (L 356) 3.
36
   Comprehensive Economic and Trade Agreement between Canada, of the one part, and the European Union
   and its Member States, of the other part, E.U.-Canada, Jan. 14, 2017 O.J. (L 11) 23 [hereinafter C.E.T.A.].
37
   Agreement between the European Union and Japan for an Economic Partnership, E.U.-Japan, July 17, 2018,
   O.J. (L 330) 1 [hereinafter E.U.-Japan F.T.A.].
38
   Free Trade Agreement between the European Union and the Republic of Singapore, E.U.-Singapore,Oct. 19,
   2018, O.J. (L 294) 3 [hereinafter E.U.-Singapore F.T.A.].
39
   Free Trade Agreement between the European Union and the Socialist Republic of Viet Nam, E.U.-Vietnam,
   June 30, 2019, O.J. (L 186) 3 [hereinafter E.U.-Vietnam F.T.A.].
40
   E.U.-Mexico Agreement in principle for an F.T.A., E.U.-Mex., Apr. 21, 2018.
41
   E.U.-Mercosur Agreement in principle for an F.T.A., E.U.-Mercosur, Jun. 28, 2019.
42
   E.U.-New Zealand concluded negotiations for an F.T.A. on 30 June 2022 [hereinafter E.U.-New Zealand
   F.T.A.]. Text published for information purpose, https://policy.trade.ec.europa.eu/eu-trade-relationships-
   country-and-region/countries-and-regions/new-zealand/eu-new-zealand-agreement_en (last visited Nov.
   22, 2022).
43
   Trade and Cooperation Agreement between the European Union and the European Atomic Energy
   Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other
   part, Dec. 30, 2020, O.J. (L 149) [hereinafter E.U.-U.K. T.C.A.].
44
   See Jean-Frédéric Morin, Nicolas Michaud, Corentin Bialais, Trade negotiations and climate governance: the
   EU as a pioneer, but not (yet) a leader (Sept. 10, 2016), https://www.chaire-epi.ulaval.ca/sites/chaire-
   epi.ulaval.ca/files/publications/trade_and_climate.pdf.


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


integrating non-trade issues in its international agreements, originally of a
development-driven nature.45 A necessity relevantly emerging in the 1989 Lomé IV
Convention,46 concluded between the Union and the African, Caribbean and Pacific
[hereinafter A.C.P.] countries and incorporating an ad hoc human rights clause, later
transposed as an essential element in given cooperation and association agreements.47
           Secondly, the integration of ecological variables into free trade agreements is no
novelty in the international legal framework. In particular, since the adoption of the
1994 North American Free Trade Agreement [N.A.F.T.A.]48 and its side agreement on
Environmental Cooperation,49 concluded amongst the United States, Canada and Mexico,
the United States [hereinafter U.S.] have stood out as a central player in addressing
environmental reflections through trade tools, emerging as a regulatory model largely
explored by commentators in comparison to the Union’s one.50




45
    See generally ANDREW MOLD, EU DEVELOPMENT POLICY IN A CHANGING WORLD: CHALLENGES FOR THE 21ST CENTURY
   (Amsterdam University Press, 2007).
46
   Fourth A.C.P.-E.E.C. Convention, Dec. 15, 1989, O.J. (L 229). In particular, art. 33 states:
                in the framework of this Convention, the protection and the enhancement of the
                environment and natural resources, the halting of the deterioration of land and
                forests, the restoration of ecological balances, the preservation of natural resources
                and their rational exploitation are basic objectives that the A.C.P. States concerned
                shall strive to achieve with Community support with a view to bringing an immediate
                improvement in the living conditions of their populations and to safeguarding those
                of future generations.
47
   See Žvelc, supra note 23; see also T. Takács, A. Ott and A. Dimopoulos, Linking trade and
   non-commercial interests: the EU as a global role model?              (CLEER, Working Paper No.         2013/4,
   2013),       https://www.asser.nl/media/1639/cleer_13-4_web.pdf; Laura Beke, David D’Hollander,
   Nicolas Hachez, Beatriz Pérez de las Heras, Report on the integration of human rights in EU
   development and trade policies (Frame, Work Package No.                      9, Deliverable No.       1, 2014),
   https://www.europarl.europa.eu/cmsdata/86030/FP7%20report.pdf; Billy Melo Araujo, Regulating through
   Trade: re-calibration of EU Deep and Comprehensive F.T.A.s, 31 PACE INT’L L. REV. 377 (2019).
48
   North American Free Trade Agreement between the Government of Canada, the Government of the United
   Mexican States and the Government of the United States of America, Can.-U.S.-Mex., Dec. 8, 1993.
49
   North American Agreement on Environmental Cooperation between the Government of Canada, the
   Government of the United Mexican States and the Government of the United States of America, Can.-U.S.-
   Mex., Dec. 17, 1992.
50
   See generally Sikina Jinnah & Elisa Morgera, Environmental Provisions in American and E.U. Free Trade
   Agreements: A Preliminary Comparison and Research Agenda, 22 REV.                   EUR.     COMPARA.   & INT’L
   ENV’T L. 324 (2013); Marco Bronckers & Giovanni Gruni, Retooling the Sustainability Standards in E.U.
   Free Trade Agreements, 24 J. INT’L ECON. L. 25 (2021); J. B. Velut et al., Comparative Analysis of
   Trade and Sustainable Development Provisions in Free Trade Agreements, EUROPEAN COMMISION (Feb., 2022),
   https://trade.ec.europa.eu/doclib/docs/2022/february/tradoc_160043.pdf.


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Against this backdrop, the present article aims at detecting if, and to what extent,
environmental interests have been included into the new generation free trade
agreements negotiated or concluded by the European Union with a key focus on their
suitability for enforcement. Under this viewpoint, the research is to contribute to the
existing doctrinal debate on the topic.51                     Yet, original inputs will be offered by
underscoring the significance generated by the advent of the European Green Deal also
on the E.U. external trade agenda. Consequently, it is to be ultimately demonstrated that
further guidance and clarification reveals necessary. This is in spite of the inherent
potential for the predisposed Power of Trade Partnerships communication52 to turn the
spotlight on a more assertive application of the ecological clauses enshrined in
N.G.F.T.A.s., as demonstrated by the reformed sustainability blueprint adopted for the
newborn EU-New Zealand F.T.A.
           Following an introductory Section focusing on the normative rationales behind
the inclusion of environmental clauses in external trade tools (Paragraph 1), the first
part of the article is designed to identify and compare environmental provisions as
enshrined in N.G.F.T.A.s’ Trade and Sustainable Development [hereinafter T.S.D.]
Chapters, with the primary aim of assessing their enforcement both from an upstream
(Paragraph 2) and downstream (Paragraph 3) perspective. The work then elaborates on
contemporary trajectories in the normativization of the trade-and-environment nexus,
first and foremost in light of the June 2022 Commission’s communication on the final
revision of the fifteen-point action plan on trade and sustainable development53 and
E.U.-New Zealand F.T.A. (Paragraph 4). Eventually, concluding remarks are reported
(Conclusion).




51
   See generally Wybe Th. Douma, The Promotion of Sustainable Development through EU Trade Instruments, 28 EUR.
   BUS. L. REV. 197 (2017); Giovanna Adinolfi, A Cross-cutting Legal Analysis of the European Union Preferential
   Trade Agreement’s Chapters on Sustainable Development: Further Steps towards the Attainment of the Sustainable
   Development Goals?, in INTERNATIONAL TRADE, INVESTMENT, AND SUSTAINABLE DEVELOPMENT GOALS: WORLD TRADE
   FORUM 15-49 (Cosimo Beverelli, Jurgen Kurtz & Damian Raess eds., 2020); Gracia Marín Durán, Sustainable
   Development Chapters in E.U. Free Trade Agreements: Emerging Compliance Issues, 57 COMMON MKT. L. REV. 1031
   (2020).
52
   Communication from the Commission to the European Parliament, the Council, the European Economic and Social
   Committee and the Committee of the Regions, The power of trade partnerships: together for green and just economic
   growth, COM (2022) 409 final (Jun. 22, 2022).
53
   Id.


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


      1.           PROMOTING                ENVIRONMENTAL                    INTERESTS            THROUGH
      EXTERNAL TRADE TOOLS: A PRIMARY LAW OBLIGATION

In spite of a recurrent emphasis on the need to include environmental requirements in
external trade instruments being made by E.U. policy documents, it proves necessary to
underscore that, at Union level, environmental integration is not merely urged by
soft-law sources. To the contrary, it is also prescribed by binding norms, entailing
primary law provisions. Particularly, the Single European Act, inaugurating an ad hoc
title on the environment, formulated for the first time the horizontal clause on
environmental integration, recognizing that “environmental protection requirements
shall be a component of the Community’s other policies”.54
           Progressively strengthened,55 the Principle was finally transposed into Article 11
of the Treaty on the Functioning of the European Union [hereinafter T.F.E.U.] following
the Lisbon amendments. This confirmed the policy rationale that advancements in
environmental protection may be more effectively attained in the absence of definition
and implementation of E.U. policies and activities disregarding eco-friendly
contemplations.56 As a consequence, the principles proper of the Union’s environmental
policy, as enshrined in Article 191 T.F.E.U., were brought out of their niche, and made
applicable to a vast array of Union’s policies.57 It shall be additionally borne in mind that
the principle of environmental integration has found additional lymph by virtue of its
enclosure in Article 37 of the E.U. Charter of Fundamental Rights which, with the entry
into force of the Lisbon Treaty, was attributed primary law relevance.58




54
   Single European Act, art. 130r, ¶ 2, Jun. 29, 1987, O.J. (L 169).
55
   In particular, the principle of environmental integration was valorized by the Amsterdam Treaty, which
   managed to place it among the general principles of E.U. law, while also introducing an express mention to
   the notion of sustainable development.
56
   Consolidated Version of the Treaty on the Functioning of the European Union, art. 11, May 9, 2008, 2008
   O.J. (C 115) 47 reads: “Environmental protection requirements must be integrated into the definition and
   implementation of the Union’s policies and activities, in particular with a view to promoting sustainable
   development”. See generally Massimiliano Montini, The principle of integration, in PRINCIPLES OF ENVIRONMENTAL
   LAW 139 (Ludwig Krämer & Emanuela Orlando eds., 2018).
57
   This shall be, in particular, the case of the principle of prevention, which has been referred to by the Court of
   Justice in order to review an export ban adopted under the Common Agricultural Policy. See Case C-157/96,
   The Queen v Ministry Agric. & Others, 1998, E.C.R. I-02211. See generally RICHARD MACRORY ET AL., PRINCIPLES
   OF EUROPEAN ENVIRONMENTAL LAW (4th ed. 2004).
58
   Art. 37, affirming: “A high level of environmental protection and the improvement of the quality of the
   environment must be integrated into the policies of the Union and ensured in accordance with the principle
   of sustainable development”. See Charter of Fundamental Rights of the European Union, Dec. 12, 2007, O.J.
   (C 326). For a comment in the literature, see Elisa Morgera & Gracia Marin-Duran, Commentary to Article
   37 - Environmental Protection of the EU Charter of Fundamental Rights, in COMMENTARY ON THE EU CHARTER OF
   FUNDAMENTAL RIGHTS 983 (Peers et al. eds., 2d ed. 2021).
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Notwithstanding its prescriptive formulation,59 the enforceability of the environmental
integration principle remains questionable, with the European Union Court of Justice
[hereinafter E.C.J.] accentuating the broad discretionary powers in the hands of the
Union’s legislator to evaluate concretely to what extent ecological requirements ought
to be integrated into the E.U. ’s other policies and actions.60
           Along with reaffirming the principle of environmental integration, the Treaty of
Lisbon further contributed to confer significance to the chase of non-trade objectives by
means of the common commercial policy [hereinafter C.C.P.]. Article 207 T.F.E.U. now
compels the C.C.P. to be based on uniform principles, along with being conducted “in the
context of the principles and objectives of the Union’s external action”,61 as also
overarchingly demanded by Article 205 T.F.E.U.62
           For the purpose of the present examination, the renvoi operated by the
aforementioned norms leads to the identification of precise aims. Notably, Article 21 of
the Treaty on European Union [hereinafter T.E.U.], requiring the Union to define and
pursue its external policies to “foster the sustainable economic, social and
environmental development of developing countries, with the primary aim of
eradicating poverty”63 and “help develop international measures to preserve and
improve the quality of the environment and the sustainable management of global
natural resources, in order to ensure sustainable development”.64 Eventually, mention
has to be made to Article 3(5), T.E.U., highlighting the necessity for the Union to “uphold




59
   The conception of the integration of environmental considerations as an obligation for the Union legislator
   has also been acknowledged by the E.C.J. See Cases T-429/13 and T-451/13, Bayer CropScience AG & Others
   v Comm’n, ECLI:EU:T:2018:280, ¶ 106 (May 17, 2018).
60
   See, e.g., Case C-733/19, Kingdom of the Neth. v Council & Parliament, ECLI:EU:C:2021:272, ¶ ¶ 49-50 (May
   15, 2021). For a comment in the literature, see FRANCESCO MUNARI & LORENZO SCHIANO DI PEPE, LA TUTELA
   TRANSNAZIONALE DELL’AMBIENTE (2012); Jan H. Jans, Stop the Integration Principle?, 33 FORDHAM INT’L L. J. 1533
   (2011), https://ir.lawnet.fordham.edu/ilj/vol33/iss5/8.
61
   T.F.E.U., supra note 56, at art. 207. For a comment regarding the effects of the Lisbon Treaty on the common
   commercial policy, see Angelos Dimopoulos, The Effects of the Lisbon Treaty on the Principles and Objectives of the
   Common Commercial Policy, 15 Eur. Foreign Aff. Rev. 153 (Feb. 15, 2010), https://hdl.handle.net/1814/17320;
   Joris Larik, Entrenching Global Governance: The EU’s Constitutional Objectives Caught Between a Sanguine World
   View and a Daunting Reality, in The EU’s Role in Global Governance: The Legal Dimension 7 (Bart Van Vooren,
   Jan Wouters & Steven Blockmans eds., 2013). The broadening of the field of application of the C.C.P., and
   the consequent evolution of the latter as embedded in Article 207 T.F.E.U., in comparison with art. 133 of
   the Treaty establishing the European Community, has also been acknowledged by the E.C.J. See, e.g., Case
   C-414/11, Daiichi Sankyo Co. Ltd, Sanofi-Aventis Deutschland GmbH v. DEMO Anonimos Viomikhaniki kai
   Emporiki Etairia Farmakon, ECLI:EU:C:2013:520, ¶ ¶ 45-46 (July 13, 2013).
62
   T.F.E.U., supra note 56, at art. 205, stating: “The Union’s action on the international scene, pursuant to
   this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the
   general provisions laid down in Chapter 1 of Title V of the Treaty on European Union”.
63
   Consolidated Version of the Treaty on European Union, art. 21, ¶ 2 (d), Oct. 26, 2012, 2012 O.J. (C326).
64
   Id. at art. 21, ¶ 2 (f).


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                 NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


and promote its values and interests”65 in its relations with the wider world, to
contribute to the sustainable development of the Earth, along with free and fair trade.
          The era inaugurated by the Lisbon Treaty thus appears to attribute emphasis to
an approach to foreign policy which has been epitomized as managed globalization,
attempting at accommodating free trade imperatives with the prerequisite to uphold
non-trade benefits in international commercial intercourses, including the promotion of
sustainable development.66
          A requirement which, in the aftermath of the landmark Opinion 2/15,67
materializes as strengthened. The Court was, as a matter of fact, requested to determine
whether the Union had the requisite competence to sign and conclude alone the F.T.A.
with Singapore and, specifically, which provisions of the agreements fell within the E.U.’s
exclusive and shared competences, as well as within the exclusive competence of the
Member States.68
          With      particular      regard     to    the    commitments          concerning        sustainable
development, the Opinion emphasizes that the obligation on the European Union to
integrate the objectives and principles of the Union’s external action into the conduct of
the C.C.P. is “apparent from the second sentence of Article 207(1) T.F.E.U. read in
conjunction with Article 21(3) T.E.U. and Article 205 T.F.E.U.”.69 Therefore, the Court
underscores that account must be taken of Article 11 T.F.E.U.70 and that the “objective of
sustainable development forms an integral part of the common commercial policy”.71
An interpretation which departs from the reading provided by the Advocate General

65
   Id. at art. 3, ¶ 5.
66
   Rawi Abdelal & Sophie Meunier, Managed Globalization: Doctrine, Practice and Promise, 17 J. EUR. PUB. POL’Y 350
   (2010).
67
   Opinion 2/15, supra note 16. Opinion 2/15 was delivered by the Full Court in May 2017, upon a request made
   by the European Commission ex T.F.E.U. art. 218, ¶ 11. It represents a landmark ruling for the common
   commercial policy in general and F.T.A.s’ trade and sustainable development Chapters in particular,
   elaborating on the correct allocation of competences between the E.U. and its Member States. See, e.g.,
   David Kleimann, Reading Opinion 2/15: Standards of Analysis, the Court’s Discretion, and the Legal View of the
   Advocate General (EUI RSCAS 2017/23 Global Governance Programme-264, Working Paper No. 23, 2017),
   https://cadmus.eui.eu/bitstream/handle/1814/46104/RSCAS_2017_23REVISED.pdf?sequence=4&isAllowed
   =y; Marise Cremona, Shaping EU Trade Policy post-Lisbon: Opinion 2/15 of 16 May 2017, 14 EUR. CONT. L. REV. 231
   (2018); Reinhard Quick & Attila Gerhäuser, EU Trade Policy after Opinion 2/15: Internal and External Threats to
   Broad and Comprehensive Free Trade Agreements, in LAW AND PRACTICE OF THE COMMON COMMERCIAL POLICY: THE
   FIRST 10 YEARS AFTER THE TREATY OF LISBON 486 (Guillaume Van der Loo & Michael Hahn eds., 2021); Charlotte
   Beaucillon, Opinion 2/15: Sustainable Is the New Trade. Rethinking Coherence for the New Common Commercial
   Policy, 2 EUR. PAPERS 819 (2017).
68
   Kleimann, supra note 67, ¶ 1. It is important to remember that, by relying on settled case-law, the Court
   affirmed that an E.U. act is to fall within the common commercial policy if it: “relates specifically to
   such trade in that it is essentially intended to promote, facilitate or govern such trade and has direct and
   immediate effects on it”. Concordantly, the fact that an E.U. act is merely liable to have implications for
   trade is not enough for it to be classified as a C.C.P. measure. See Kleimann supra note 67, ¶ 36.
69
   Id. ¶ 143.
70
   Id. ¶ 146.
71
   Id. ¶ 147.

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[hereinafter A.G.], according to whom Article 11 T.F.E.U. could not “affect the scope of
the common commercial policy laid down in Article 207 T.F.E.U.”72 or “modify the scope
of the European Union’s competence”.73
           The E.C.J. has thus offered an extensively broad reading of the Union’s
post-Lisbon competences in external trade policy,74 unambiguously embracing also
commitments concerning sustainable development as embedded in N.G.F.T.A.s.75
           The Court of Justice has only narrowly advanced a fully-fledged scrutiny of
Articles 21 and 3(5), T.E.U. Whereas, on the one hand, the obligation for the E.U. to
integrate the objectives and principles of the Union’s external action into the C.C.P. has
been, as shown, declared.76 On the other hand, the E.U. institutions’ wide-ranging
margin of appreciation in the field of external economic relations seems to have been
confirmed.77




72
   Opinion of Advocate General Sharpston, ECLI:EU:C:2016:992, ¶ 495, (Dec. 21, 2016).
73
   Id.
74
   The Court, in fact, determined that all provisions of the E.U.-Singapore F.T.A. fell within the Union’s exclusive
   competence, with the only exception of clauses relating to non-direct investment and on Investor-State
   dispute settlement.
75
   An extensive analysis concerning the implications of Opinion 2/15 on trade and sustainable development
   goes beyond the scope of the present analysis. See, e.g., Charlotte Beaucillon, Opinion 2/15: Sustainable
   Is the New Trade. Rethinking Coherence for the New Common Commercial Policy, 2 Eur. Papers 819 (2017);
   Laurens Ankersmit, Opinion 2/15: Adding some spice to the trade & environment debate, Eur. L. Blog
   (Jun. 15, 2017) https://europeanlawblog.eu/2017/06/15/opinion-215-adding-some-spice-to-the-trade-
   environment-debate.
76
   Opinion 2/15, supra note 16, ¶ 143.
77
   See Case T-512/12, Front populaire pour la libération de la saguia-el-hamra et du rio de oro (Front Polisario)
   v. Council, 2015 ECLI:EU:T:2015:953, ¶ 164. See also Alessandra Asteriti, Article 21 TEU and the EU’s Common
   Commercial Policy: A Test of Coherence, in 2017 European Yearbook of International Economic Law 111 (Marc
   Bungenberg et al. eds., 2017).
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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


       2.        UPSTREAM ENFORCEMENT: CONTENT AND RATIO OF
       ENVIRONMENTAL PROVISIONS IN NEW GENERATION F.T.A.S

Granted that an introductory analysis on the primary law requirements legitimizing the
Union to include environmental contemplations into its N.G.F.T.A.s has been provided, the
present Section turns to inspect the content of the specific provisions approaching green
concerns, with the aim of assessing their potential for enforcement.
            Since the E.U.-Korea F.T.A., environmental clauses have been mainly78 included
into a specific chapter which is rubricated as Trade and Sustainable Development. A
relevant exception is to be found in C.E.T.A., where - granted a chapeau T.S.D. Chapter -
sustainability clauses have been split into two ad hoc Sections, respectively coping with
labor issues79 and environmental considerations.80 The C.E.T.A. model has been also
reproduced in the E.U.-U.K. T.C.A., in which labor and environmental issues are
pondered separately.81 Besides, green provisions as embedded in T.S.D. Chapters do not
come as general exceptions formulated on the blueprint of Article XX G.A.T.T. Instead,
they rely on bilateral cooperation to foster environmental protection.82
            Yet, a point remains firm: M.E.A.s clauses as embedded in N.G.F.T.A.s do not
radically innovate with respect to the environmental obligations contracted by the
Signatories at international level, they have consequently been baptized as a mere:
“reaffirmation of obligations already binding on the Parties under those agreements”.83
But they are not meaningless in scope.                      Actually, the incorporation of obligations
deriving from M.E.A.s into T.S.D. Chapters generates a double layer of protection since,
by absorbing multilateral environmental agreements into N.G.F.T.A.s, the Parties have
committed to respect those obligations also on the basis of the bilateral Agreement, as by
analogy, rightly pointed out by the Panel of Experts in the Korea-E.U. dispute.84

78
   The choice of the adverb “mainly” is not causal. T.S.D. Chapters aside, N.G.F.T.A.s contain provisions related,
   albeit in an indirect way, to the environment also by means of exception clauses modelled upon art. XX
   G.A.T.T. granted uniformity in content, by way of example, see E.U.-Korea F.T.A, supra note 28, at art. 2.15.
79
   C.E.T.A., supra note 36, at chapter 23.
80
   Id. at chapter 24.
81
   Namely: E.U.-U.K. T.C.A., supra note 43, at title XI, Chapter 6 (Labour and Social Standards); Chapter
   7 (Environment and Climate Change) and Chapter 8 (Other instruments for Trade and Sustainable
   Development).
82
   See, e.g., Adinolfi, supra note 51; Azzurra Muccione, Il rapporto dei capitoli su “Commercio e Sviluppo Sostenibile”
   con la Disciplina in Materia Commerciale, in Gli Accordi Preferenziali di Nuova Generazione dell’Unione Europea
   235 (Giovanna Adinolfi ed., 2021) (It.).
83
   Lorand Bartels, Human Rights and Sustainable Development Obligations in E.U. Free Trade Agreements, 40 LEGAL
   ISSUES ECON. INTEGRATION 297 (2013).
84
   Panel Report, Panel of Experts proceeding constituted under Article 13.15 of the E.U.-Korea
   Free Trade Agreement, ¶ 107 (Jan.                     20, 2021) [hereinafter E.U.-Korea Panel Report],




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At the outset, it shall be underscored that mention to the generalis notion of sustainable
development and the specialis concept of environmental protection85 are to be found
already in the preambles of several N.G.F.T.A.s, in which the Parties either reaffirmed or
recognized their commitment to promote sustainable development in their economic
intercourses,86 or determined to strengthen their international trade relations in
accordance with the objectives of sustainable development, along with endorsing
exchanges respectful of high levels of environmental protection.87 As pointed out by
Adinolfi, despite lacking prescriptive force, environmental and sustainability references
as embraced by N.G.F.T.A.s’ Preambles may assume relevance under Article 31 of the 1969
Vienna Convention on the Law of Treaties, thus chiefly serving as interpretative
criteria.88
            Coming to their scope, T.S.D. Chapters do not, by and large, aim at reaching
harmonization between the laws and standards of the Parties. Instead, they attempt to
bolster cooperation on sustainability issues, conducting commercial exchanges which
convict a “race to the bottom” generated by domestic deregulation favoring competitive
market conditions. Green clauses contained into T.S.D. Chapters can be concordantly
categorized into three main categories:                              clauses referring to ratification or
implementation of Multilateral Environmental Agreements [hereinafter M.E.A.s]; right
to regulate and levels of protection clauses; and upholding level of protection clauses
(infra Annex Table).
            Alongside, satellite provisions dealing with particular environmental concerns,
including sustainable forest management and trade in forest products, as well as
provisions on trade and biodiversity, trade and climate change and trade and sustainable

   https://trade.ec.europa.eu/doclib/docs/2021/january/tradoc_159358.pdf. See also Opinion of Advocate
   General Sharpston, supra note 72, ¶ 498.
85
   It proves essential to remember that, while constituting a specific pillar of sustainable development, the
   concept of “environment” represents an extremely broad and multifaceted notion. See Michelle Ben-David,
   Defining International Environmental Law, 38 ECOLOGY L. Q. 553 (2011).
86
   See for example, C.E.T.A., supra note 36, at preamble, in which the Parties reaffirmed: “Their commitment to
   promote sustainable development and the development of international trade in such a way as to contribute
   to sustainable development in its economic, social and environmental dimensions”. See also, E.U.-Korea
   F.T.A., supra note 28, at preamble; E.U.-Andean Community F.T.A., supra note 35, at preamble; E.U.-Japan
   F.T.A., supra note 37, at preamble.
87
   See for example, E.U.-Singapore F.T.A., supra note 38, at preamble, in which the Parties determined to:
                strengthen their economic, trade, and investment relations in accordance with the
                objective of sustainable development, in its economic, social and environmental
                dimensions, and to promote trade and investment in a manner mindful of high levels
                of environmental and labour protection and relevant internationally-recognised
                standards and agreements to which they are party.
   See also, E.U.-Vietnam F.T.A., supra note 39, at preamble; E.U.-New Zealand F.T.A., supra note 42, at preamble.
88
   Giovanna Adinolfi, Alla ricerca di un equilibrio tra interessi economici e tutela dell’ambiente nella politica commerciale
   dell’Unione europea, EUROJUS (May 14, 2017), http://rivista.eurojus.it/alla-ricerca-di-un-equilibrio-tra-
   interessi-economici-e-tutela-dellambiente-nella-politica-commerciale-dellunione-europea/ (It.).


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


management of fisheries and aquaculture are to be detected. With an eye evaluating
their potential for enforcement, the analysis will now turn to the three pillar provisions
constituting the basis of N.G.F.T.A.s’ environmental regulation.



     2.1.ACLAUSES REFERRING TO RATIFICATION OR IMPLEMENTATION OF
     MULTILATERAL ENVIRONMENTAL AGREEMENTS

M.E.A.s clauses, representing the first pillar of environmental provisions as enshrined in
T.S.D. Chapters display several common features. To begin with, they generally comprise
a chapeau paragraph, according to which the Parties recognize the importance of
international environmental governance and agreements as a response of the
international community to global ecological problems. Alongside that, they highlight
the necessity to advance bilateral supportiveness between trade and environmental
policies and measures,89 also at the core of the United Nations Environmental
Assembly.90
           In this context, new generation free trade agreements deliberately provide for the
Parties to consult and cooperate, as appropriate, with regard to environmental issues of
mutual interest related to trade.91




89
   See e.g., E.U.-Korea F.T.A., supra note 28, at art. 13.5, ¶ 1; E.U.-Andean Community F.T.A., supra note 35, at
   art. 270, ¶ 1; C.E.T.A., supra note 36, at art. 24.4, ¶ 1; E.U.-Japan F.T.A., supra note 37, at art. 16.4, ¶ 1; E.U.-
   Singapore F.T.A., supra note 38, at art. 12.6, ¶ 1; E.U.-Vietnam F.T.A., supra note 39, at art. 13.5, ¶ 1; E.U.-U.K.
   T.C.A., supra note 43, at art. 400, ¶ 1. As for association agreements, see E.U.-Central America A.A., supra note
   34, at art. 287, ¶ 1; E.U.-Ukraine A.A., supra note 31, at art. 292, ¶ 1; E.U.-Moldova A.A., supra note 32, at art.
   366, ¶ 1; E.U.-Georgia A.A., supra note 33, at art. 230, ¶ 1. With regard to agreements in principle reached by
   the Union and agreements whose negotiations have been recently concluded, see E.U.-Mexico Agreement
   in Principle, supra note 40, at art. 4, ¶ 1; E.U.-Mercosur Agreement in Principle, supra note 41, at art. 5, ¶ 2;
   E.U.-New Zealand F.T.A., supra note 42, at art. X.5, ¶ 1.
90
   See E.U.-U.K. T.C.A., supra note 43, at art. 400, ¶ 1; E.U.-Mexico Agreement in Principle, supra note 40, at art.
   4, ¶ 1; E.U.-Mercosur Agreement in Principle, supra note 41, at art. 5, ¶ 2; E.U.-New Zealand F.T.A., supra note
   42, at art. X.5, ¶ 1.
91
   See, e.g., E.U.-Korea F.T.A., supra note 28, at art. 13.5, ¶ 1; E.U.-Andean Community F.T.A., supra note 35, at art.
   270, ¶ 1; C.E.T.A., supra note 36, at art. 24.4, ¶¶ 1, 3; E.U.-Japan F.T.A., supra note 37, at art. 16.4, ¶ 1; E.U.-
   Singapore F.T.A., supra note 38, at art. 12.6, ¶ 1; E.U.-Vietnam F.T.A., supra note 39, at art. 13.5, ¶ 1; E.U.-U.K.
   T.C.A., supra note 43, at art. 400, ¶ 5; E.U.-Central America A.A., supra note 34, at art. 287, ¶ 1; E.U.-Ukraine
   A.A., supra note 31, at art. 292, ¶ 5; E.U.-Moldova A.A., supra note 32, at art. 366, ¶ 1; E.U.-Georgia A.A., supra
   note 33, at art. 230, ¶ 1; E.U.-Mexico Agreement in Principle, supra note 40, at art. 4, ¶¶ 1, 4; E.U.-Mercosur
   Agreement in Principle, supra note 41, at art. 5, ¶¶ 2, 5; E.U.-New Zealand F.T.A., supra note 42, at art. X.5, ¶¶
   1, 5.


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Secondly and most remarkably, the Parties reaffirm their commitment to implement,
effectively, into their laws and practices, the multilateral environmental agreements to
which there are parties. Yet the provision, despite limited exceptions,92 does not insert a
detailed list of the ratified M.E.A.s, distancing E.U. practice from the one proper of the
United States.93 Apropos ratification of multilateral environmental agreements, the vast
majority of N.G.F.T.A.s are silent on the topic, with only limited agreements94 providing
for the commitment to exchange information regularly on the progress on ratification of
M.E.A.s, including their protocols and amendments. This practice comes in contrast with
T.S.D. Chapters’ labor-related provisions, mandating for the commitment to make
continued and sustained efforts towards ratification of the fundamental International
Labour Organization [hereinafter I.L.O.] Conventions, as well as other conventions
classified by I.L.O. as up-to-date. A commitment which, still, is often articulated as a
‘mere best effort’ obligation.95
           As highlighted by Bronckers and Gruni, the choice not to include compulsory
ratification of M.E.A.s might find a justification in the fact that, to date, the majority of
multilateral environmental agreements bearing a relevance for trade according to the
W.T.O. has been extensively ratified.96 Nevertheless, whilst this might be the case for
several environmental agreements, different N.G.F.T.A.s partners have still not managed
to ratify particular M.E.A.s, thus opening the door to uncertainties regarding the ratio for
this neat exclusion.97
92
   It is notably the case of the E.U.-Andean Community F.T.A. and the E.U.-Central America A.A., in which
   ratified M.E.A.s are explicitly listed. See E.U.-Central America A.A, supra note 34, at art. 287, ¶ 2; E.U.-Andean
   Community F.T.A., supra note 35, at art. 270, ¶ 2.
93
    See e.g., Agreement between the United States of America, the United Mexican States, and Canada, art. 24.8,
   ¶ 4, Nov. 30, 2008 [hereinafter U.S.M.C.A.]. Where not explicitly listed in a given agreement’s provision,
   M.E.A.s may still be found listed in specific Annexes. See, e.g., Free Trade Agreement between the United
   States of America and the Republic of Korea, Annex 20-A, U.S.-S. Kor., Jun. 30, 2007 [hereinafter U.S.-Korea
   F.T.A.]. For an analysis and comparison in the literature, see Jinnah & Morgera, supra note 50; Sikina Jinnah &
   Julia Kennedy, A New Era of Trade-Environment Politics: Learning from US Leadership and its Consequences Abroad,
   12 Whitehead J. Dipl. & Int’l Rel. 95 (2011).
94
   See E.U.-Japan FTA, supra note 37, at art. 16.4, ¶ 3; E.U.-Vietnam FTA, supra note 39, at art. 13.5, ¶ 3; E.U.-U.K.
   T.C.A., supra note 43, at art. 400, ¶ 3; E.U.-Central America A.A., supra note 34, at art. 287, ¶ ¶ 3, 4; E.U.-
   Moldova A.A., supra note 32, at art. 366, ¶ 3; E.U.-Mexico Agreement in principle, supra note 40, at art. 4,
   ¶ 3; E.U.-Mercosur Agreement in principle, supra note 41, at art. 5, ¶ 4; E.U.-New Zealand F.T.A., supra note
   42, at art. X.5, ¶ 3. An interesting exception is represented by E.U.-Central America A.A., supra note 34, at
   art. 287, whose Paragraph 3 contains the obligation for the Parties to undertake to ensure ratification of the
   amendment to Article XXI of Washington Convention (C.I.T.E.S.) by the entry into force of the Agreement.
   Paragraph 4 continues by underling the commitment to ratify, to the extent that the Parties have not
   yet done so, the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous
   Chemicals and Pesticides in International Trade, at the latest by the entry into force of the Agreement.
95
   See Bronckers & Gruni, supra note 50; James Harrison et al., Governing Labour Standards through Free Trade
   Agreements: Limits of the European Union’s Trade and Sustainable Development Chapters, 57 J. COMMON MKT. STUD.
   260 (2019); James Harrison, The Labour Rights Agenda in Free Trade Agreements, 20 J. WORLD INV. & TRADE 705
   (2019).
96
   Bronckers & Gruni, supra note 50.
97
   Id.


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 Yet, a point remains firm: M.E.A.s clauses as embedded in N.G.F.T.A.s do not radically
 innovate with respect to the environmental obligations contracted by the Signatories at
 international level, they have consequently been baptized as a mere: “reaffirmation of
 obligations already binding on the Parties under those agreements”.98 But they are not
 meaningless in scope. Actually, the incorporation of obligations deriving from M.E.A.s
 into T.S.D. Chapters generates a double layer of protection since, by absorbing
 multilateral environmental agreements into N.G.F.T.A.s, the Parties have committed to
 respect those obligations also on the basis of the bilateral Agreement, as by analogy,
 rightly pointed out by the Panel of Experts in the Korea-E.U. dispute.99
           Additionally and with an eye to enforcement, the assimilation of M.E.A.s
 obligations in the text of T.S.D. Chapters would confer the Parties the power to refer the
 dispute, in case of violation of the relevant clauses, to a specific adjudicatory procedure,
 as provided for by the F.T.A. itself.
           Against this backdrop, further features of the present clauses remain opaque
 having been at the center of a vivid debate.
           In primis, commitments related to M.E.A.s mostly come with hortatory or best
 endeavor formulations, which may suggest a lack of prescriptive force. Problematics
 might also arise regarding the commitment on implementation which, despite an
 apparent binding formulation, does not contain benchmarks for concretely actualizing
 pledges. The latter point deserves attention in the aftermath of the E.U.-Korea dispute -
 where the Panel embraced a broad understanding of the obligation to make continued
 and sustained efforts towards ratification of the core I.L.O. Conventions. As a matter of
 fact, the Panel emphasized that, in the absence of “specific forms or contents of efforts
 being required”,100 the Agreement’s text would confer to the Parties a “certain level of
 leeway in selecting specific ways of making such required efforts”,101 which may
 ultimately come at the expense of effective implementation and enforcement.
           Eventually, a point worth recalling relates to the presence, in M.E.A.s clauses, of a
 direct and immediate link between multilateral environmental agreements and trade
 and investment - a characteristic already detected by A.G. Sharpston in her delivered
 Opinion.102 In particular, clauses relating to multilateral environmental agreements
98
    Lorand Bartels, Human Rights and Sustainable Development Obligations in E.U. Free Trade Agreements, 40 LEGAL
    ISSUES ECON. INTEGRATION 297 (2013).
 99
    Panel Report, Panel of Experts proceeding constituted under Article 13.15 of the E.U.-Korea
    Free Trade Agreement, ¶ 107 (Jan.               20, 2021) [hereinafter E.U.-Korea Panel Report],
    https://trade.ec.europa.eu/doclib/docs/2021/january/tradoc_159358.pdf. See also Opinion of Advocate
    General Sharpston, supra note 72, ¶ 498.
100
    E.U.-Korea Panel Report, supra note 97, ¶ 274.
101
    Id.
102
    Sharpston, supra note 72, ¶ 489.


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 would “specifically [address] the issue of disguised restrictions on trade which may
 result from measures implementing multilateral environmental agreements”.103
            Still, N.G.F.T.A.s provide no guidance on how environmental measures flowing
 from the implementation of M.E.A.s might, concretely, affect bilateral trade. From this
 perspective, E.U. praxis diverges from the one proper of the U.S. F.T.A.s concluded
 following the 2006 Peru-U.S. Agreement,104 in which a violation of the provisions
 concerning multilateral environmental agreements shall be “in a manner effecting trade
 or investment between the Parties”.105 Interestingly, the United States-Mexico-Canada
 Agreement F.T.A.106 sets indicators for identifying under what conditions such a
 violation may occur; specifying that a failure is to be regarded as affecting trade or
 investment if it involves “a person or industry that produces a good or supplies a service
 traded between the Parties or has an investment in the territory of the Party that has
 failed to comply with this obligation”107 or “a person or industry that produces a good or
 supplies a service that competes in the territory of a Party with a good or a service of
 another Party”.108




103
    Id.
104
    Peru Trade Promotion Agreement, Peru-U.S., Jan. 6, 2006, [hereinafter U.S.-Peru T.P.A.].
105
    Id. at art. 18.2. See also U.S.-Korea F.T.A., supra note 91, at art. 20.2; United States-Colombia Trade Promotion
    Agreement, Colombia-U.S., May 15, 2012, at art. 18.2; Free Trade Agreement, Columbia-U.S., Nov. 22, 2006
    [hereinafter U.S.-Colombia F.T.A.]; U.S.-Panama Trade Promotion Agreement, art. 17.2, U.S.-Pan. F.T.A.
    [hereinafter U.S.-Panama F.T.A.]; U.S.M.C.A., supra note 91 art. 24.8. For an in-depth analysis in the literature,
    see Jinnah & Kennedy, supra note 91.
106
    Agreement between the United States of America, the United Mexican States, and Canada, supra note 95.
107
    U.S.M.C.A., supra note 91, at art. 24.8.
108
    Id.

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                    NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


      2.2. RIGHT TO REGULATE AND LEVELS OF PROTECTION CLAUSES

 Right to regulate and levels of protection clauses109 best mirror the overarching
 objective of T.S.D. Chapters, by which the Signatories do not intend to harmonize their
 respective environmental laws and regulations.                              Conversely, they recognize the
 sovereign right of each Party to determine its own environmental priorities; establish its
 levels of environmental protection; and adopt or modify domestic legislation and
 policies accordingly, with still due regard to both ratified multilateral environmental
 agreements and internationally recognized standards.
            As anticipated, a limited deviation from this model is to be detected in the
 D.C.F.T.A.s concluded with Ukraine, Moldova and Georgia, falling under the aegis of the
 E.U. neighborhood policy.110 In the mentioned Agreements, the specific right to regulate
 clause is accompanied by a general commitment of legislative approximation to the E.U.
 acquis in the environmental domain.111 Yet, the choice comes as no surprise, given the
 twofold objective of D.C.F.T.A.s calling for both the associated Country integration in the
 Union’s internal market by means of the setting up of a free trade area and the
 progressive approximation of domestic legislation to that of the Community.112
            Furthermore, right to regulate clauses encompass references to given levels of
 protection, demanding the F.T.A. partners to ensure that domestic laws and policies
 provide for and encourage high levels of environmental safeguard, along with
 enshrining a commitment to strive to keep incrementing domestic legislation and
 policies.
            An analysis of right to regulate and levels of protection clauses hence reveals the
 presence of two distinct components, also termed in the literature as minimum-level and
 high-level clauses.113              The former, phrased in mandatory terms, establishes a
 straightforward connection with M.E.A.s obligations, thus granting minimum standards
 of protection in the Party’s exclusive right to regulate. Minimum-level provisions border
 the power of States to autonomously determine, without normative constraints,
 domestic environmental legislation. Also, they innovate with regard to the traditional
109
    See, e.g., E.U.-Korea F.T.A., supra note 28, at art. 13.3; E.U.-Andean Community F.T.A., supra note 35, at art. 268;
    C.E.T.A., supra note 36, at art. 24.3; E.U.-Japan F.T.A., supra note 37, at art. 16.2, ¶ 1; E.U.-Singapore F.T.A., supra
    note 38, at art. 12.2; E.U.-Vietnam F.T.A., supra note 39, at art. 13.2; E.U.-U.K. T.C.A., supra note 43, at art. 391,
    ¶ 1; E.U.-Georgia A.A., supra note 33, at art. 228; E.U.-Moldova A.A., supra note 32, at art. 364; E.U.-Mexico
    Agreement in Principle, supra note 40, at art. 2, ¶¶ 1, 2; E.U.-Mercosur Agreement in Principle, supra note
    41, at art. 2, ¶¶ 1, 2; E.U.-New Zealand F.T.A., supra note 42 at art. X.2, ¶¶ 1, 2.
110
    For an overview in the literature, see BART VAN VOOREN, EU EXTERNAL RELATIONS LAW AND THE EUROPEAN
    NEIGHBOURHOOD POLICY: A PARADIGM FOR COHERENCE (Routledge ed., 2011).
111
    E.U.-Ukraine A.A., supra note 31, at art. 290, ¶ 2; E.U.-Moldova A.A., supra note 32, at art. 91, 97; E.U.-Georgia
    A.A., supra note 33, at art. 306, 312.
112
    E.U.-Ukraine A.A., supra note 31, at art. 1, ¶ 2 (d); E.U.-Moldova A.A., supra note 32, at art. 1, ¶ 2 (f); E.U.-
    Georgia A.A., supra note 33, at art. 1, ¶ 2 (h).
113
    See Marín Durán, supra note 51.
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 affirmation of the principle on the blueprint of the exception-based model adapted on
 Article XX G.A.T.T.114
            High-level provisions, while acting as a supplementary constraint to the Parties’
 right to regulate, still show an aspirational character, being enunciated in constructs such
 as “each part shall strive to continue to improve”115 or “shall strive to ensure”116 that
 relevant law and policies provide for high levels of environmental protection. Mostly due
 to their hortatory formulation - even raising doubts over their effective legal significance
 - high level of protection clauses may open the door to interpretative uncertainties in
 adjudicatory procedures, leading the doctrine to observe how their current phrasing could
 come with difficulties in both implementation and enforcement praxis.117
            With limited precedents of T.S.D. Panel of Experts not providing for a
 comprehensive view on the way in which such clauses materially operate, it remains to
 be seen how semantic constructs such as “high levels of environmental protection” will
 be interpreted as to assign consistency to the clause.
            By way of example, if the Panel decided to make reference to the E.C.J.
 jurisprudence, the expression “high levels of environmental protection” would not be
 interpreted as the highest standard of protection technically possible.118 As asserted by
 Krämer, high levels of environmental protection are to be determined by referring to
 environmental denominators as set by those Member States which display an elevated
 grade of environmental safeguard, along with the reliance on policy declarations,
 resolutions or targets.119


114
    A wide-ranging assessment of the Parties’ right to regulate in preferential trade agreements is outside the
    scope of the present Article. See e.g., Elizabeth Trujillo, Balancing Sustainability, the Right to Regulate, and the
    Need for Investor Protection: Lessons from the Trade Regime, 59 B. C. L. Rev. 2735 (2018).
115
    Despite minimum differences in formulation, see C.E.T.A., supra note 36, at art. 24.3, ¶ 1; E.U.-Singapore
    F.T.A., supra note 38, at art. 12.2, ¶ 2; E.U.-Mexico Agreement in Principle, supra note 40, at art. 2, ¶ 2.
116
    Despite minimum differences in formulation, see E.U.-Korea F.T.A., supra note 28, at art. 13.3; E.U.-Andean
    Community F.T.A., supra note 35, at art. 268; E.U.-Japan F.T.A., supra note 37 , at art. 16.2, ¶ 1; C.E.T.A., supra
    note 36, at art. 24.3, ¶ 1; E.U.-Singapore F.T.A., supra note 38, at art. 12.2, ¶ 2; E.U.-Vietnam F.T.A., supra note
    39, at art. 13.2, ¶ 2; E.U.-U.K. T.C.A., supra note 43, at art. 391, ¶ 5; E.U.-Central America A.A., supra note 34,
    at art. 285, ¶ 2; E.U.-Ukraine A.A., supra note 31 at art. 290, ¶ 1; E.U.-Georgia A.A., supra note 33, at art. 228,
    ¶ 2; E.U.-Moldova A.A., supra note 32, at art. 364, ¶ 2; E.U.-Mexico Agreement in Principle, supra note 40, at
    art. 2, ¶ 2; E.U.-Mercosur Agreement in principle, supra note 41, at art. 2, ¶ 2; E.U.-New Zealand F.T.A., supra
    note 42, at art. X.2, ¶ 2.
117
    See Marín Durán, supra note 51; Marco Bronckers & Giovanni Gruni, Taking the Enforcement of Labour Standards
    in The EU’s Free Trade Agreements Seriously, 56 Common Mkt. L. Rev. 1591 (2019).
118
    See Case C-284/95, Safety Hi-Tech Srl v. S. & T. Srl., 1998, E.C.R. I-04301.
119
    See Nicolas de Sadeleer, The Principle of a High Level of Environmental Protection in EU Law: Policy Principle or
    General Principle of Law?, in MIJöR�̈TTSLIGA PERSPEKTIV OCH TANKEV�̈NDOR, VÄNBOK TILL JAN DARPÖ & GABRIEL
    MICHANEK 447, 447-65 (Lena Gipperth & Charlotta Zetterbeg eds., 2013); LUDWIG KR�̈MER, EU ENVIRONMENTAL
    LAW (Sweet & Maxwell eds., 8th ed. 2016).




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                    NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 Eventually, it proves necessary to accentuate that, contrary to M.E.A.s clauses, no explicit
 and direct connection with trade and investment is set in right to regulate at the level of
 protection clauses. As currently framed and verbalized, the right to regulate provisions
 would thus seem to establish a plain environmental commitment as noted by A.G.
 Sharpston in her delivered Opinion.120



      2.3. UPHOLDING LEVELS OF PROTECTION CLAUSES

 Contrary to M.E.A.s and right to regulate clauses, upholding protection level clauses121
 explicitly provide for a direct link with trade and investment to subsist in the case of a
 Party’s failure, through a sustained or recurring course of action or inaction, to effectively
 enforce or derogate from domestic environmental norms.
            The provision, phrased in mandatory terms, comes with subtle variations in
 N.G.F.T.A.s122 and a broad scope of application, pertaining to national environmental
 legislation in its entirety, and not purely internal regulations implementing multilateral
 environmental agreements.                     Upholding levels of protection provisions; hence,
 complement high- and minimum-level of protection clauses by establishing an
 additional constraint on the Parties’ sovereign right to regulate - calling on F.T.A.s
 Signatories not to fail to enforce or lower ecological regulations and standards in
 bolstering bilateral trade intercourses. Consequently , their ratio is to avoid the so-called
 “race to the bottom”, promoting economic growth through trade exchanges by
 sustaining environmental deregulation.
            As anticipated, the peculiarity of upholding levels of protection clauses rests on
 their inherent trade association which, in the absence of textual clarification on how this
 connection - or trade test - shall be envisaged, has led commentators to turn to foreign

120
    Opinion of A.G. Sharpston, ¶ 503.
121
    See, e.g., E.U.-Korea F.T.A., supra note 28, at art. 13.7; E.U.-Andean Community F.T.A., supra note 35, at art.
    277; C.E.T.A., supra note 36, at art. 24.5; E.U.-Japan F.T.A., supra note 37, at art. 16.2, ¶ 2; E.U.-Singapore F.T.A.,
    supra note 38, at art. 12.12; E.U.-Vietnam F.T.A., supra note 39, at art. 13.3; E.U.-U.K. T.C.A., supra note 43, at
    art. 391, ¶ 2; E.U.-Central America A.A., supra note 34, at art. 291; E.U.-Ukraine A.A., supra note 31, at art.
    296; E.U.-Georgia A.A., supra note 33, at art. 235; E.U.-Moldova A.A., supra note 32, at art. 371; E.U.-Mexico
    Agreement in Principle, supra note 40, at Art. 2, ¶¶ 3-6; E.U.-Mercosur Agreement in Principle, supra note 41,
    at art. 2, ¶¶ 3-5; E.U.-New Zealand F.T.A., supra note 42, at art. X.2, ¶¶ 3-6. In the literature, upholding levels
    of protection clauses are also referred to as “non-regression” and “non-derogation” clauses. See Adinolfi,
    supra note 51.
122
    On the one hand, in some N.G.F.T.A.s, such as C.E.T.A., upholding levels of protection clauses are formulated
    in slightly less mandatory terms, utilizing the expression: “[T]he parties recognize that it is inappropriate
    to encourage trade or investment by weakening or reducing the levels of protection afforded in their
    environmental law”. On the other, different N.G.F.T.A.s, such as the E.U.-Korea F.T.A., do incorporate a
    stronger wording, prescribing that: “[A] Party shall not fail to effectively enforce its environmental and
    labour laws”.


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 practice for interpretative guidance.123 Remarkably, in the landmark decision given
 under the Dominican Republic-Central America-United States Free Trade Agreement
 [hereinafter C.A.F.T.A.-D.R.],124 the Arbitral Panel accentuated that it shall be for the
 plaintiff to demonstrate that alleged practices regarded as being in contrast with
 sustainability provisions, as enshrined in the trade agreement, have assigned a
 “competitive advantage on the employer or employers engaged in trade”,125 by means of
 “repeated behavior which displays sufficient similarity”126 or “prolonged behavior in
 which there is sufficient consistency in sustained acts or omissions as to constitute a line
 of connected behavior”.127
            Taking as a basis the arbitral panel’s ruling, it can be accordingly ascertained
 that, on the one hand, a sole failure to effectively enforce environmental laws is not
 eligible to be classified as a violation of upholding levels of protection clauses. On the
 other, a competitive advantage shall be detected, accruing to a relevant employer and
 consequently affecting its competitiveness.128 On the basis of semantic correspondence
 detected in the E.U. and in the U. S. upholding level of protection clauses, a convergence
 in interpretation may, thus, be plausible.129




       3.          DOWNSTREAM ENFORCEMENT: A SPECIALIS DISPUTE
       SETTLEMENT MECHANISM AND THE LACK OF ECONOMIC
       SANCTIONS

 By means of new generation F.T.A.s, the European Union has assumed a promotional, or
 managerial,130        approach in sustaining environmental interests through trade
 agreements, a normative choice disregarding the utilization of countermeasures in case

123
    Bronckers & Gruni, supra note 50.
124
    Dominican Republic - Central America - United States Free Trade Agreement Arbitral Panel Established
    Pursuant to Chapter 20 in the Matter of Guatemala, Issues Relating to the Obligations Under Article 16.2.1(A)
    of the C.A.F.T.A.-D.R., Final Report of the Panel, Jun. 14, 2017 [hereinafter C.A.F.T.A.-D.R. Panel Report]. For
    a comment in the literature, see Phillip Paiement, Leveraging Trade Agreements for Labor Law Enforcement:
    Drawing Lessons from the US-Guatemala CAFTA Dispute, 49 GEO. J. INT’L L. 675, 675-92 (2018); Tequila J. Brooks,
    U.S.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement, 4
    Int’l Lab. Rts. Case L. 45 (2018).
125
    C.A.F.T.A.-D.R. Panel Report, supra note 122, ¶ 190.
126
    Id. ¶ 152.
127
    Id.
128
    Id. ¶ 195.
129
    See, e.g., E.U.-Korea F.T.A., supra note 28, at art. 13.7; U.S.-Korea F.T.A., supra note 91, at art. 20.3.
130
    See Denise Prévost & Alexovicova Iveta, Mind the Compliance Gap: Managing Trustworthy Partnerships for
    Sustainable Development in the European Union’s Free Trade Agreements, 6 INT’L J. PUB. L. & POL’Y 236, 236-269
    (2019).


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                   NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 of non-compliance. A regulatory tactic epitomizing the central deviation point from its
 main alternative model is the confrontational one embraced by F.T.A.s negotiated and
 concluded by the United States.131
            Notably, all E.U. new generation free trade agreements include a specialis dispute
 settlement mechanism [hereinafter D.S.M.] for “any matter of mutual interest”132 arising
 from the provisions contained in trade and sustainable development Chapters. This is an
 apparatus structured around a recurrent double layer: governmental consultations
 followed by the potential establishment of a Panel of Experts, or group of experts,133 in
 the case of failed bilateral dialogue. The adjudicatory procedure spelt out in T.S.D.
 Chapters thus unfolds into precise steps.
            To begin with, in the case of a disagreement over a matter arising under the
 considered Chapters, a Party can request consultations with the Counterpart by
 delivering a written request to the specific contact point, i.e., a designated office within
 the other Party’s administration. Consultations shall thus commence punctually after
 the delivery of the written request. A point worth mentioning regards the eventual
 consideration of the activity of relevant multilateral environmental organizations as to
 reach a mutually satisfactory solution, along with the possibility for the Parties, by
 mutual accord, to seek recommendations of these organizations or bodies in order to
 investigate the matter.
            Secondly, in the eventuality of a Party’s will to further examine the object of the
 dispute, a specific organ constituted under the F.T.A., denominated as Trade and
 Sustainable Development Committee or Board on Trade and Sustainable Development,
 may be convened with the view of considering the matter.134
            Yet and thirdly, should the dispute fail to be satisfactorily addressed, each Party
 may request, again in writing to the contact point of the Counterpart, the establishment
 of a Panel of Experts to analyze the matter. Panelists are to be designated among
 individuals with specialized knowledge or expertise in relation to the topics addressed
 by T.S.D. Chapters - which shall be independent and serve in their individual capacities.
131
    Jinnah & Morgera, supra note 50.
132
    Granted uniformity in the content of the procedures, see e.g., E.U.-Korea F.T.A, supra note 28, at art. 13.14, ¶
    1.
133
    See, e.g., E.U.-Andean Community F.T.A. supra note 35, at art. 284; E.U.-Ukraine A.A., supra note 31, at art. 301.
134
    The procedure spelt out in N.G.F.T.A.s for governmental consultations comes with slight variations in the
    analyzed agreements. See E.U.-Korea F.T.A., supra note 28, at art. 13.14; E.U.-Andean Community F.T.A., supra
    note 35, at art. 283; C.E.T.A., supra note 36, at art. 23.9; E.U.-Japan F.T.A., supra note 37, at art. 16.17; E.U.-
    Singapore F.T.A., supra note 38, at art. 12.16; E.U.-Vietnam F.T.A., supra note 39, at art. 13.16; E.U.-U.K. T.C.A.,
    supra note 43, at art. 408; E.U.-Central America A.A., supra note 34, at art. 296; E.U.-Georgia A.A., supra note
    33, at art. 242; E.U.-Moldova A.A., supra note 32, at art. 378; E.U.-Ukraine A.A., supra note 31, at art. 300, ¶¶
    4-6; E.U.-Mexico Agreement in Principle, supra note 40, at art. 16; E.U.-Mercosur Agreement in Principle,
    supra note 41, at art. 16.


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 The chief task of the Panel is thus to present a final report containing recommendations
 to the Parties.
            In so doing, the matter is to be examined in light of the relevant provisions of the
 T.S.D. Chapter and, if deemed relevant, information from any ulterior source may be
 obtained. Particularly, in matters related to respect of M.E.A.s, the Panel might be
 entitled to seek information from the relevant multilateral environmental agreements’
 bodies. Coming to the Panel’s final report, this shall set out the findings of facts, the
 applicability of the relevant provisions and the rationale at the basis of the
 recommendations. The Parties, despite variations in formulation, are required to make
 their best efforts to accommodate the Panel’s advice.135
            Henceforth, N.G.F.T.A.s establish a two-track system of judicial protection: a
 generalis adjudicatory procedure applicable to regular trade issues of commercial
 liberalization, along with intellectual property protection, and a specialis one
 characterizing non-trade components as contained in T.S.D. Chapters.
            Such a normative bipartition raises doubts on the overall coherence of the C.C.P.,
 in particular, in a post-Opinion 2/15 scenario abstractly elevating non-trade issues as
 integral components of the common commercial policy.136                                 This is a view further
 toughened in the aftermath of the E.U.-Korea dispute.137 Being requested by the Union
 to assess the consistency of a number of Korean law measures with Chapter 13, Article
 13.4.3, of the E.U.-Korea F.T.A.,138 the Panel ultimately affirmed the binding nature of the
 sustainability clause at stake.139              Whereas the dispute related to the labor pillar of



135
    For example, E.U.-Vietnam F.T.A., supra note 39, at art. 13.17, ¶ 9, provides for the Parties to “discuss
    appropriate actions or measures to be implemented taking into account the final report of the Panel of
    Experts and the recommendations therein”. Similarly, also: E.U.-Japan F.T.A., supra note 37, at art. 16.18,
    ¶ 6; E.U.-Singapore F.T.A., supra note 38, at art. 12.17, ¶ 9; E.U.-U.K. T.C.A., supra note 43, at art. 409, ¶ 16;
    E.U.-Georgia A.A., supra note 33, at art. 243, ¶ 8; E.U.-Moldova A.A., supra note 32, at art. 379, ¶ 8; E.U.-Mexico
    Agreement in Principle, supra note 40, at art. 17, ¶ 9; E.U.-Mercosur Agreement in principle, supra note 41,
    at art. 17, ¶ 11. Relevant also the variation contained in C.E.T.A., supra note 36, at art. 24.15, ¶ 11, stating:
                 [I]f the final report of the Panel of Experts determines that a Party has not conformed
                 with its obligations under this Chapter, the Parties shall engage in discussions and
                 shall endeavour, within three months of the delivery of the final report, to identify
                 an appropriate measure or, if appropriate, to decide upon a mutually satisfactory
                 action plan. In these discussions, the Parties shall take into account the final report.
    See also E.U.-Central America A.A., supra note 34, at art. 301, ¶ 3.
136
    Sharpston, supra note 72, ¶ 147 reading: “[I]t follows that the objective of sustainable development
    henceforth forms an integral part of the common commercial policy”. See Susanna Villani, Settling Disputes
    on TDS Chapters of E.U. FTAs: Recent Trends and Future Challenge in the Light of CJEU Opinion 2/15, in The EU and the
    Rule of Law in International Economic Relations, An agenda for an Enhanced Dialogue 107 (Andrea Biondi
    & Giorgia Sangiuolo eds., 2021).
137
    E.U.-Korea Panel Report, supra note 97.
138
     Id. ¶¶ 100-102, 259-260.
139
    Id. ¶¶ 127, 277.


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                   NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 sustainable development, the decision reveals crucial also for the interpretation of
 environmental provisions, on the basis of homogeneity in linguistic formulation.140
            It is thus no coincidence that claims have been raised as to strengthen
 sustainability Chapters further and align the T.S.D. mechanism for settling disputes to
 the N.G.F.T.A.’s regular one141 - with particular regard to the possibility for demanding
 countermeasures be implemented in case of non-compliance, at date excluded.
            Firmly advocating the promotion of environmental interests through
 cooperation, the E.U. ’s approach had still for a long time rejected the confrontational
 tactic proper of the United States, which still deserves clarification. As emphasized,
 F.T.A.s concluded by the United States introduce the possibility for environmental
 provisions to be subject to the regular dispute settlement mechanism, thus granting the
 prospect of applying countermeasures in case of non-compliance. Nevertheless, as
 pointed out by Jinnah and Morgera, the triggering of such a normative leeway remains
 questionable in practice.142 A closer look at the relevant provisions143 reveals that, prior
 to resorting to the generalis D.S.M., the Parties shall turn to ad hoc consultative processes,
 as provided for by F.T.A.s environmental Chapters.                           Consequently, the prospect of
 effectively imposing sanctions in instances of missed observance of green provisions
 would stand out as a mere last resort option following the exhaustion of preliminary
 remedies.
            In addition, the European Union has not excluded, in toto, a more assertive
 approach in enforcing T.S.D. provisions, also of an environmental nature. A partial
 deviation from the common D.S.M. blueprint for sustainability clauses has in fact been
 envisaged in the E.U.-U.K. Trade and Cooperation Agreement by means of Article 410 for
 non-regression areas. In particular, Paragraph 3 legitimizes the complaining Party,
 where the respondent Party decides not to take any action to conform with the report of
 the Panel and with the Agreement, to refer mutatis mutandis to any remedy authorized
 under Article 749. This thus regulates temporary remedies for non-compliance with a
140
    A critical assessment of the E.U.-Korea dispute lies outside the scope of this Article. See Ji Sun Han, The EU-
    Korea Labour Dispute: A Critical Analysis of the EU’s Approach, 26 EUR. FOREIGN AFF. REV. 531 (2021); María J.
    García, Sanctioning Capacity in Trade and Sustainability Chapters in EU Trade Agreements: The EU–Korea Case, 10
    POL. & GOVERNANCE 58 (2022).
141
    See AXEL MARX ET AL., DISPUTE SETTLEMENT IN THE TRADE AND SUSTAINABLE DEVELOPMENT CHAPTERS OF
    EU TRADE AGREEMENTS (Leuven Centre for Global Governance Studies ed., 2017); Dutch Trade Minister
    & French Trade Minister, Non-paper from the Netherlands and France on trade, social economic effects and
    sustainable development (2020), https://www.tresor.economie.gouv.fr/Articles/73ce0c5c-11ab-402d-95b1-
    5dbb8759d699/files/6b6ff3bf-e8fb-4de2-94f8-922eddd81d08.
142
    Jinnah & Morgera, supra note 50.
143
    For details regarding the procedures, see U.S.-Peru T.P.A., supra note 102, at art. 18.12; U.S.-Colombia F.T.A.,
    supra note 103, at art. 18.12; U.S.-Korea F.T.A., supra note 91, at art. 20.9; C.A.F.T.A.-D.R. Panel Report, supra
    note 122, at art. 17.10; U.S.-Panama F.T.A., supra note 103, at art. 17.11; U.S.M.C.A. F.T.A., supra note 91, at art.
    24.32.


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 Panel’s ruling in the forms of compensation or suspension of obligations. Furthermore,
 Article 411, termed as “rebalancing”, while recognizing each Party’s sovereign right in
 determining its future policies and priorities in relation to environmental and climate
 protection,144 underscores how the Partners acknowledge that “significant divergences
 in these areas can be capable of impacting trade”145 between them, in a manner which
 “changes the circumstances that have formed the basis for the conclusion of this
 Agreement”.146 Henceforth, in case of material impacts on trade between the Parties,
 arising as a result of significant divergences in environmental and climate protection,
 each Party may take appropriate rebalancing measures to address the situation.
 Nevertheless, despite the norm containing procedural guidance on how these measures
 shall be applied,147 interpretation is needed to determine what might constitute a
 “significant divergence” or a “material impact” on trade, with the article merely stating
 that “a Party’s assessment of those impacts shall be based on reliable evidence and not
 merely on conjecture or remote possibility”.148
           Besides the peculiarities proper of the E.U.-U.K. T.C.A., it is interesting to notice
 that the possibility for suspension of commercial preferences has also been endorsed by
 the E.U. through the insertion in trade and cooperation agreements of human rights
 essential element clauses which, mostly coming into standard wording,149 have been
 enclosed in external normative instruments since the 1990s prevalently as tools for
 triggering the suspension mechanism, are provided for by Article 60 of the Vienna
 Convention on the Law of Treaties.150




144
    E.U.-U.K. T.C.A., supra note 43, at art. 411, ¶ 1.Yet, the same Paragraph expressly underlines that the
    right of each Party to determine its future policy and priorities with regard to environmental or climate
    protection shall be consistent with each Party’s international commitments, including those flowing from
    the Agreement itself.
145
    Id.
146
    E.U.-U.K. T.C.A., supra note 43, at art. 411, ¶ 1.
147
    Id. ¶¶ 2-3.
148
    Id. ¶ 2. The procedure contained in Article 411 is extremely detailed and subject to ad hoc procedural
    requirements. See generally, Azzurra Muccione, La Tutela dell’Ambiente e del Clima, in L’ACCORDO SUGLI SCAMBI
    COMMERCIALI E LA COOPERAZIONE TRA L’UNIONE EUROPEA E IL REGNO UNITO 149 (Alberto Leone Malatesta ed., 2022)
    (It.).
149
    Generally, essential element clauses concerning human rights present a fixed formula, as by way of
    exemplification illustrated by the Partnership agreement between the members of the African, Caribbean
    and Pacific Group of States of the one part, and the European Community and its Member States, of the
    other part, Jun. 23, 2000, O.J. (L 317) (Cotonou Agreement). In particular, see art. 9, ¶ 2: “[R]espect for
    human rights, democratic principles and the rule of law, which underpin the [A.C.P.-E.U.] Partnership, shall
    underpin the domestic and international policies of the Parties and constitute the essential elements of this
    Agreement”.
150
    See Nicolas Hachez, “Essential Elements” Clauses in EU Trade Agreements Making Trade Work in a Way that helps
    Human Rights? (KU Leuven Working Paper, Paper No. 158, 2015); Bartels, supra note 96.


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 Nevertheless, standard essential element clauses are rarely reproduced in N.G.F.T.A.s,151
 with the limited exception of the E.U.-Andean Community F.T.A.152 A remarkable
 exception to this trend can still be detected in the E.U.-U.K. T.C.A., which explicitly
 stipulates that Article 764(1) on climate change constitutes an essential element of the
 Agreement.153
           The latter also elaborates on the fulfillment of the obligations stemming from
 the clauses marked as essential elements. It introduces the possibility for a Party - when
 considering that a serious and substantial failure has occurred and after having
 requested the intervention of the Partnership Council as to reach a mutually agreed
 solution - to terminate or suspend the operation of the Agreement, or any
 supplementing agreement, in whole or in part.154
           Yet, the measures adopted ought to respect international law fully and be
 proportionate, with priority being conferred to those which “least disturb the
 functioning”155 of the Agreement and of any supplementing agreement.156                                      The
 provision concludes by attempting to confer interpretative guidance to the norm,
 underscoring that for a particular situation to constitute a serious and substantial failure
 to fulfill the obligations of Article 771, its gravity and nature would be of an “exceptional
 sort that threatens peace and security or that has international repercussions”. 157
           The high threshold for assessing non-compliance with essential element clauses
 would thus lead to alimenting existing doubts158 over the effective potential of these
 provisions in concretely contributing to the protection of human rights and respect for
 democratic principles abroad.159 As underlined by Hachez: “essential elements have
 sparsely been invoked, they have not always led to sanctions proper but rather to
 consultations, and the sanctions when applied did not involve the lifting of trade

151
    Still, it shall be underscored that, as pointed out by the European Commission, in cases where N.G.F.T.A.s
    do not incorporate essential elements clauses, the latter is to be found in ad hoc framework agreements
    negotiated with the partner country and legally linked to the trade Agreement. See Commission Non
    paper: Using EU Trade Policy to promote fundamental human rights, Current policies and practices (2012),
    https://trade.ec.europa.eu/doclib/docs/2012/february/tradoc_149064.pdf.
152
    E.U.-Andean Community F.T.A., supra note 35, at art. 1, 2.
153
    E.U.-U.K. T.C.A., supra note 43, at art. 771.
154
    Id. at art. 772, ¶¶ 1-2.
155
    E.U.-U.K. T.C.A., supra note 43, at art. 772, ¶ 3.
156
    Id.
157
    Id. at art. 772, ¶ 4. For greater clarity, the same provision also underlines that: “[A]n act or omission which
    materially defeats the object and purpose of the Paris Agreement shall always be considered as a serious and
    substantial failure for the purposes of this Article”.
158
    See LORAND BARTELS, A MODEL HUMAN RIGHTS CLAUSE FOR THE EU’S INTERNATIONAL TRADE AGREEMENTS (German
    Institute for Human Rights and Misereor, 2014).
159
    See Hachez, supra note 148. For an overview also regarding essential element clauses in the E.U.-U.K. T.C.A.,
    see Steve Peers, So Close, Yet So Far: The EU/UK Trade and Cooperation Agreement, 59 COMMON MKT. L. REV. 49
    (2022).


                                                        176
 2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 8:1


 preferences but rather suspension of meetings and technical co-operation
 programmes”.160
            Against this backdrop, it is still significant that, for the very first time, the
 E.U.-U.K. T.C.A. introduced an essential element clause explicitly dedicated to the fight
 against climate change - a factor which may be explained by the Parties’ willingness to
 confer priority to environmental protection in its most pressing dimension.161 Yet, it
 should be borne in mind that the peculiarities proper to the Trade and Cooperation
 Agreement signed with the U.K. might remain a normative unicum on the basis of the
 latter’s status of former E.U. Member State.




       4. THE ROAD FORWARD: NOVELTIES AHEAD IN THE ERA OF THE
       EUROPEAN GREEN DEAL

 The criticalities characterizing both the upstream and downstream enforcement phases
 of trade and sustainable development Chapters have not gone unnoticed. Shortly after
 T.S.D. Chapters entered the scene of free trade agreements, claims have been raised for a
 more assertive enforcement of sustainability commitments, including environmental
 provisions as enshrined in new generation commercial agreements. In response to
 criticism addressing the alleged weak nature of T.S.D. commitments to endorse
 environmental considerations effectively, in 2017 the European Commission launched a
 debate162 on how to improve trade and sustainable development Chapters enshrined in
 N.G.F.T.A.s.




160
    Hachez, supra note 148, at 19. Contra Lorand Bartels, The Application of Human Rights Conditionality
    in the EU’s Bilateral Trade Agreements and Other Trade Arrangements with Third Countries, EUROPEAN
    PARLIAMENT (2008), https://www.europarl.europa.eu/RegData/etudes/etudes/join/2008/406991/EXPO-
    INTA_ET(2008)406991_EN.pdf.
161
    See Muccione, supra note 146; but see Giulia C. Leonelli, From Extra-Territorial Leverage and Transnational
    Environmental Protection to Distortions of Competition: The Level Playing Field in the EU–UK Trade and Cooperation
    Agreement, 33 J. ENV’T L. 611 (2021). Recently and following the conclusion of negotiations for the E.U.-
    New Zealand F.T.A., the Commission announced that, also for the aforesaid Agreement, respect of the Paris
    Agreement shall constitute an essential element. See European Commission Press Release IP/22/4158, EU -
    New Zealand Trade Agreement: Unlocking Sustainable Economic Growth (Jun. 30, 2022).
162
    Non-paper of the Commission Services, Trade and Sustainable Development (TSD) Chapters in E.U. Free Trade
    Agreements (FTAs) (Jul. 11, 2017), https://trade.ec.europa.eu/doclib/docs/2017/july/tradoc_155686.pdf.


                                                         177
                 NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 One year later, the Commission published the non-paper on “Feedback and way forward
 on improving the implementation and enforcement of Trade and Sustainable
 Development Chapters in E.U. Free Trade Agreements”.163 It was reiterating its aversion
 to the deployment of economic sanctions in order to grant compliance with
 environmental clauses included in T.S.D. Chapters. Yet, the non-paper managed to
 advance an action plan in fifteen points aiming at stepping up implementation of T.S.D.
 Chapters which, with an eye to enforcement, put forward a combination of deeds to be
 pursued, including enhanced action in the monitoring phase, enabling the civil society
 to take effective part in the proper functioning of T.S.D. Chapters and ensuring the
 proper implementation of the Panels’ reports.
           Nevertheless, the plan did not succeed in halting discussion,164 which led the
 Commission to announce a new reflection on T.S.D. Chapters in line with the objectives
 proper of the European Green Deal. The latter, depicting the E.U. environmental path for
 the attainment of climate neutrality by 2050, addresses the necessity for the Union to
 develop a specific “green deal diplomacy”165 centered on the necessity of “convincing
 and supporting others to take on their share of promoting more sustainable
 development”.166
           In order to reach this objective, trade policy is identified as a specific area of
 cooperation for the advancement of the Union’s ecological transition, both at the fore of
 relevant international fora and through bilateral cooperation with partner countries. In
 particular, the Green Deal makes it clear how commercial intercourses can favor
 engagement with trading partners on climate and environmental action, with the E.U.
 aiming at utilizing its “expertise in green regulation”167 for acting as an exporter of
 environmental standards at global level.
           The assertion is not causal. Instead, it well mirrors both the first (a European
 Green Deal) and the fifth (a stronger Europe in the world) headline ambitions set by the
 Commission’s President Ursula von der Leyen for the period 2019-2024.168 The necessity
163
    Non paper of the Commission services, Feedback and way forward on improving the implementation and
    enforcement of Trade and Sustainable Development chapters in E.U. Free Trade Agreements (Feb. 26, 2018),
    https://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf.
164
    See Non-paper from the Netherlands and France on trade, social economic effects and sustainable
    development, supra note 139; Resolution on the trade-related aspects and implications of COVID-
    19, Eur.     Parl.    Doc.    P9_TA(2021)0328 (2021); ClientEarth, A New Blueprint for Environmental
    Provisions in EU Trade Agreements: ClientEarth Contribution to DG Trade Review of Trade and Sustainable
    Development Chapters, CLIENTEARTH (Dec., 2021), https://www.clientearth.org/media/0ytbtiaq/blueprint-for-
    environmental-provisions-in-eu-ftas-final-071221.pdf.
165
    Communication from the Commission, supra note 26, at 20.
166
    Id.
167
    Id. at 21.
168
    Political Guidelines for the Next European Commission 2019-2024, A Union that Strives for
    More, My Agenda for Europe, by Candidate of the European Commission Ursula von der Leyen,
    https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf (last visited
    Nov. 22, 2022).
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 for the Union’s trade agreements to present the highest standards of climate and
 environmental protection results was stressed, with a view for the E.U. to “uphold and
 update the rules-based global order”.169 It thus comes to mind how, in this context, the
 Union would aim at acting as a “normative power”170 on the global scene, attempting at
 extending its standards into the international system.171
           The reflection on the alignment of the proper objectives of the European Green
 Deal to the Union’s external trade agenda, announced in February 2021,172 ultimately led
 to the publication of the June 2022 Power of Trade Partnerships communication.173
           Based on inputs and recommendations,174 six policy priorities for trade
 agreements to contribute to sustainability have been identified, specifically: (i) proactive
 cooperation with partners; (ii) bolstering a country-specific approach; (iii) including
 sustainability commitments also in other Chapters of the F.T.A.s; (iv) incrementing
 monitoring and implementation of T.S.D. commitments; (v) strengthening the role of
 civil society; and (vi) stepping up enforcement through trade sanctions as extrema ratio
 options.175
           Among them, one point deserves attention for present purposes. Notably, the
 “enhancement of enforcement by means of trade sanctions as a measure of last
 resort”176 - mirroring a change in paradigm from previous policy documents.                                 A
 reflection hence proves necessary in relation to two variables: on the one hand, the
 asserted alignment of the specialis and generalis D.S.M.s as embedded in N.G.F.T.A.s, and
 on the other, the inclusion of the Paris Agreement [hereinafter P.A.] as an essential
 element clause of new generation arrangements.




169
    Id. at 17.
170
    Ian Manners, Normative Power Europe: A contradiction in Terms?, 40 J. COMMON MKT. STUD. 235 (2002).
171
    For a detailed examination regarding the global reach of E.U. law see Joanne Scott, Extraterritoriality and
    Territorial Extension in EU Law, 62 AM. J. COMPAR. L. 87 (2014).
172
    Communication from the Commission, supra note 25.
173
    Id.
174
    Velut et al., supra note 50.
175
    Communication from the Commission, supra note 52, at 4.
176
    Id.


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                  NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 First, the Communication suggests a focus on the particular enforcement phase
 concerning the implementation of the Panel’s report which, until now, has not included
 given rules of monitoring. The compliance stage proper to the arbitral procedure under
 the generalis D.S.M. would consequently be extended to disputes arising from T.S.D.
 Chapters, with the Party found in violation having to communicate how the Panel’s
 report is to be implemented within a specified timeframe.177 This model, remarkably,
 has already been realized in the E.U.-New Zealand F.T.A., whose negotiations were
 concluded on 30 June 2022.178
           Whereas the published version of the Agreement might still undergo
 amendments, an examination of the disclosed provisions reveals that: “[T]he Party
 complained against shall take any measure necessary to comply promptly with the
 findings and recommendations in the final report in order to bring itself in compliance
 with the covered provisions”.179
           Moreover, no later than thirty days following the delivery of the Panel’s report,
 the Party complained against shall notify the complaining Party of the measures taken
 or to be taken to comply with the ruling.180 In cases of disputes arising under trade and
 sustainable development Chapters, Article X.13(3) mandatorily demands the Party
 complained against to make the other aware of the measures to be adopted in its
 domestic civil society mechanism as established under the Agreement, along with the
 contact point of the Counterpart. Eventually, an asserted “body”181 is to monitor the
 implementation of the compliance measures when T.S.D. commitments come into play,
 whereas the civil society mechanism is entitled to submit observations in this regard.182




177
    In particular, according to the Commission’s communication this will entail that, were a Party found in
    violation of its commitments deriving from T.S.D. Chapters, they will have to “promptly inform how they
    will implement the panel report, and carry this out within a certain period of time”. Also, the procedure
    is to be subject to Panel review, along with contemplating the possibility for the civil society to submit
    observations at this stage. See Communication from the Commission, supra note 52, at 11.
178
    European Commission Press release IP/22/4158, supra note 159. See also Giulia D’Agnone, Sviluppo Sostenibile:
    una Condizionalità Ambientale…Soft? Alcune Brevi Osservazioni sull’Accordo Commerciale Negoziato tra l’Unione
    Europea e la Nuova Zelanda, Blogdue (Sept. 11, 2022), https://www.aisdue.eu/giulia-dagnone-sviluppo-
    sostenibile-una-condizionalita-ambientale-soft-alcune-brevi-osservazioni-sullaccordo-commerciale-
    negoziato-tra-lunione-europea-e-la-nuova-zeland/ (It.).
179
    E.U.-New Zealand F.T.A., supra note 42, at Chapter 26, art. X.13.
180
    Id. ¶ 2.
181
    Id. ¶ 3 (b). Yet, the reading of E.U.-New Zealand F.T.A., supra note 42, at Chapter 19, art. X.15, reveals that
    the generic term “body” actually refers, in the context of T.S.D. Chapters, to the Committee on Trade and
    Sustainable Development, specifically established under the F.T.A.’s Chapter XX.
182
    Id. at art. X.13, ¶ 3.
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 Secondly, the eventual imposition of countermeasures in the case of non-compliance, in
 the form of suspension of trade concessions or compensation, has been put forward, with
 the possibility of being explicitly limited, in the environmental domain, to “instances of
 serious violations”183 of the P.A. on climate change.184 In detail, this has been envisaged
 as a “failure to comply with obligations that materially defeat the object and purpose of
 the agreement”.185 Consequently, respect for the P.A. is rendered an essential element of
 trade agreements.186
            Yet, some criticalities shall be underscored. Firstly, it is not clear from the
 analyzed policy document what declination the asserted sanctions shall assume, since
 the Commission’s communication merely states that these may take the form of
 suspension of trade concessions.187 Still, as reported by commentators,188 the plethora of
 economic remedies in the hands of the Union is far broader, also comprising financial
 penalties and targeted sanctions.
            Notwithstanding, partial clarification deriving from Article X.16 of the E.U.-New
 Zealand F.T.A. explicates that trade “sanctions” would actually comprise suspension of
 obligations or compensation, which shall be temporary and apply only in given
 circumstances.189
            Furthermore, and perhaps most importantly, uncertainty remains as to the
 framing of a material breach of the object and purpose of the Paris Agreement. While the
 understanding of the former might be drawn from Article 60(3) of the Vienna
 Convention on the Law of Treaties,190 the identification of a violation concerning the
 “object and purpose” of the P.A. reveals more complicated in practice. Particularly,
 Signatories of the Paris Agreement would chiefly be legally bound to undertake and
 communicate “ambitious efforts”, termed Nationally Determined Contributions
 [hereinafter N.D.C.s], with the view of achieving the objective of the Agreement as

183
    Communication from the Commission, supra note 52, at 11.
184
    Paris Agreement, Oct. 10, 2016, O.J. L 282/4.
185
    Communication from the Commission, supra note 52 (emphasis added).
186
    Id.
187
    Id.
188
    Bronckers & Gruni, supra note 50.
189
    In particular, Chapter 26, art. X.16, ¶ 7, excludes suspension of obligations or compensation after: (a) the
    Parties have reached a mutually agreed solution pursuant to Article X.32; (b) the Parties have agreed that the
    measure taken to comply brings the Party complained against into conformity with the covered provisions
    or; (c) any measure taken to comply which the Panel has found to be inconsistent with the covered provisions
    has been withdrawn or amended so as to bring the Party complained against into conformity with those
    provisions.
190
    Vienna Convention on the Law of Treaties art. 60, ¶ 3, May 23, 1969, 331 U.N.T.S. 1155 states: “[A] material
    breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned
    by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object
    or purpose of the treaty”.


                                                         181
                   NEW GENERATION FREE TRADE AGREEMENTS AT A CROSSROADS.


 enshrined in Article 2. The latter, strikingly, does not prescribe national-level emissions’
 reduction targets, instead resorting to both a global temperature limit and elements
 proper to the long-term climate pathway.191
            While the affirmed obligation to communicate N.D.C.s is granted,192 it is to be
 considered whether the Paris Agreement effectively put in place an individual obligation
 on State parties, actually, to fulfill the content of such contributions. This is a hypothesis
 which may be disregarded in the lack of a clear substantive duty on the point.193
            Yet, the P.A. opens the door for State parties to engage in a virtuous circle since,
 when communicating novel N.D.C.s, the latter shall: “represent a progression beyond the
 Party’s then current nationally determined contribution and reflect its highest possible
 ambition”.194 With an eye on the present analysis, it might be asserted that, whilst the
 actual unfulfilling of the content of N.D.C.s may not be eligible for triggering the
 suspension mechanism provided for by essential element clauses in N.G.F.T.A.s, along
 with the possible imposition of countermeasures, a Party’s failure in actually improving
 its N.D.C.s or retrograding from it may, abstractly, be.
            Notwithstanding, as underscored by Leonelli, insufficiently ambitious future
 targets, which still bring about (limited) ameliorations, would hardly be regarded as
 defeating the objective and purpose of the P.A., de jure not being in contrast with the text
 of the Agreement.195 The E.U.-New Zealand F.T.A. does not provide major guidance on
 the point.       Whilst Article X.16 on temporary remedies in cases of non-compliance
 straightforwardly refers, in the environmental domain, to violations pertaining to
 Article X.6 of the Agreement, i.e., trade and climate change. The latter, tautologically,
 restates the commitment to implement the Paris Agreement as an obligation to “refrain
 from any action or omission which materially defeats the object and purpose of the Paris
 Agreement”.196




191
    See generally Ralph Bodle et al., The Paris Agreement: Analysis, Assessment and Outlook, 10 CARBON & CLIMATE L.
    REV. 5 (2016).
192
    Paris Agreement art. 4, ¶ 2.
193
    In particular, Bodle et al., supra note 189, at 7, underline that: «The [P.A.] does not oblige parties to actually
    fulfil these [N.D.C.s], hence their content is not as such legally binding. Parties are only required to pursue
    measures «with the aim of achieving» the objectives of such contributions». See also Daniel Bodansky, The
    Legal Character of the Paris Agreement, 25 Rev. Eur. Compar. & Int’l Env’t L. 142 (2016).
194
    Paris Agreement, supra note 182, at art. 4, ¶ 3.
195
    Leonelli, supra note 159.
196
    E.U.-New Zealand F.T.A., supra note 42, at Chapter 19, art. X.6, ¶ 3.


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        CONCLUSION

 The present article has attempted at providing an overview of environmental
 commitments, specifically enshrined in currently concluded and negotiated E.U. new
 generation free trade agreements, by emphasizing the normative profiles connected to
 enforceability.
            As illustrated, the integration of environmental considerations into the Union’s
 C.C.P. would respond to given primary law requirements, specifically enshrined in the
 E.U. founding Treaties. Yet, N.G.F.T.A.s have not, until now, proceeded to a complete
 equalization of trade and non-trade variables, with trade and sustainable development
 Chapters traveling on a separate track, being conferred a widely promotional role. This
 neat bipartition distinctly manifests itself in both the upstream and downstream
 enforcement capacities of green clauses.
            As for the former, the scrutinized pillar provisions proper to environmental
 cooperation chiefly show a hortatory or best-endeavor formulation - as was
 demonstrated by the textual analysis of M.E.A.s clauses and high-level of protection
 provisions. On a similar footing, despite presenting stronger wording, minimum and
 upholding level protection clauses, the clauses do not come with specific criteria for
 implementation, which comes at the expense of effective enforcement. On the basis of
 the presented considerations, one might wonder whether T.S.D. provisions might still be
 deployed as valid exceptions to be invoked in cases of restrictions to bilateral trade
 exchanges.
            Yet, a unanimous and negative response can be derived from the ruling of the
 Arbitral Panel constituted under the E.U.-Ukraine A.A.197 specifying that the provisions
 contained in the trade and sustainable development Chapter do not integrate
 “self-standing or unqualified exceptions”,198 which may be relied upon for justifying
 measures which constitute, per se, a breach of titles dedicated to trade and trade-related
 matters.199 The Panel further went on in unveiling the alleged normative scope of T.S.D.


197
    Final Report of the Arbitration Panel Established Pursuant to Article 307 of the Association Agreement Between
    Ukraine of the One Part, and the European Union and its Member States, of the Other Part (Dec. 11, 2020),
    https://trade.ec.europa.eu/doclib/docs/2020/december/tradoc_159181.pdf [hereinafter E.U.-Ukraine
    Panel Report]. See also Anzhela Makhinova & Mariia Shulha, The Arbitration Panel Ruling on Ukraine’s Certain
    Wood Restrictions under the EU-UA Association Agreement, 16 GLOB. TRADE & CUSTOMS J. 355 (2021); Geraldo
    Vidigal, Regional Trade Adjudication and the Rise of Sustainability Disputes: Korea - Labor Commitments and Ukraine
    - Wood Export Bans, 116 Am. J. Int’l L. 567 (2022); Susanna Villani, I Capitali in Materia di Sviluppo Sostenibile Negli
    Accordi Commerciali dell’Unione europea: Prove di Rilevanza Sistemica, 3 Diritto del Commercio Internazionale
    (2022).
198
    E.U.-Ukraine Panel Report, supra note 195, ¶ 251.
199
    Id.


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 provisions, which would supposedly serve as “relevant context”200 for the interpretation
 of provisions contained in “other parts” of the Agreement,201 on the basis of Article 31 of
 the Vienna Convention of the Law of Treaties.
              With regard to downstream enforcement, the specialis, non-confrontational
 dispute settlement mechanism applicable in cases of breach of sustainability
 commitments stands out. While a more assertive route towards enforceability has been
 recently suggested, this article has highlighted how relevant praxis does not seem to
 confirm its suitability in better addressing sustainability concerns - as illustrated by the
 U.S.-Guatemala case. Yet, the framing of the respect for the Paris Agreement as an
 essential element of N.G.F.T.A.s, as indicated by the Commission’s communication, may
 represent a partial U-turn in the Union’s conciliatory paradigm, opening the door to a
 stronger enforcement of T.S.D. obligations.
              Notwithstanding, it has been suggested that it would prove particularly arduous to
 determine, concretely, the parameters for ascertaining an instance of serious violation of
 the objective and purpose of the Paris Agreements, on the basis of the latter framing of the
 Parties’ commitments through obligations of means not mandating for the compulsory
 attainment of the content of specified N.D.C.s. Moreover, as the outcome of the 2022 T.S.D.
 review is to be proposed for ongoing and future F.T.A.s negotiations only, a comprehensive
 assessment reveals premature.
              Detected criticalities notwithstanding, it is undeniable that the European Green
 Deal is turning the spotlight onto environmental components to be effectively
 integrated into the Union’s external trade policy. A commitment which, remarkably, is
 also going beyond the deployment of bilateral instruments202 - shedding light on the
 Union’s potential to carry on a commercial agenda enhancing trade-related
 environmental interests.
200
      Id.
201
      Id. reading:
                 in light of the foregoing, the Arbitration Panel finds that the provisions of Chapter
                 13 are not self-standing or unqualified exceptions that could justify measures
                 that are per se in breach of Article 35 of the [A.A.]. The Arbitration Panel is
                 nonetheless persuaded that the provisions of Chapter 13 serve as relevant “context”
                 for the interpretation of other provisions of Title IV, which allow the Parties to
                 introduce or maintain measures in derogation to Article 35 of the [A.A.], including for
                 environmental reasons based on Article 36 of the [A.A.] in conjunction with Article
                 XX of the [G.A.T.T.] 1994.
    See also Muccione, supra note 82.
202
    See e.g., Proposal for a Regulation of the European Parliament and of the Council for a Carbon Border Adjustment
    Mechanism, COM (2021) 564 final (July 14, 2021); Proposal for a Directive of the European Parliament and of the
    Council on Corporate Sustainability Due Diligence and Amending Directive (EU) 2019/1937, COM (2022) 71 final (Feb.
    23, 2022); Proposal for a Regulation of the European Parliament and of the Council on the Making Available on the
    Union Market as well as Export from the Union of Certain Commodities and Products Associated with Deforestation and
    Forest Degradation and Repealing Regulation (EU) No 995/2010, COM (2021) 706 final (Nov. 17, 2021).


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    ANNEX I




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