Toward a harmonized framework for international regulation of renewable energy

Toward a harmonized framework for international regulation of renewable energy Abstract This article explores ways in which there may be some coherence in the international framework for renewable energy. It proposes harmonization of this legal framework in both doctrinal and functional terms. Conceptually, renewable energy law should be founded on an overarching international energy law, which is a more authoritative concept of international law. In operative terms, various pathways could create bespoke rules or principles for the renewable energy industry. This article attempts to demonstrate how these collaborative pathways could work by suggesting that it may not be necessary to create a distinct international renewable energy law (lex renewabilia). What may work is: (i) an overarching international energy law that combines both normative and functional elements and (ii) a good matrix to assess the operative issues and prospects that the law would need to balance in the promotion of renewable energy. The energy trilemma would be this model: (iii) a more prominent role of soft law in a harmonized renewable energy framework. Soft law could have a teleological value in interpreting hard law and build broad consensus among diverse stakeholders in developing specific operative guidelines on renewable energy. This would contribute to an adaptable international framework that is as dynamic as the renewable energy sector itself. It is envisioned that these approaches may holistically deal with the peculiar challenges and opportunities for renewable energy in the transition to more sustainable global energy systems. I. Introduction Generally, international law is fragmented and cyclical.1 The decentralized approach to international law is seen through the development of its rules by several entities in different areas with little coordination.2 The international interaction between law and energy evolved around the petroleum industry, which has generated much debate for more than a century.3 As discussed in section II.2 below, little consensus has been reached in establishing a globally recognized international petroleum law. This disconnect between the various legal and institutional frameworks governing energy systems adversely affects the development of renewable energy because the emerging framework for regulating renewable energy resources is also disjointed. Nevertheless, efforts to harmonize and define an overarching international energy law have been made in the last few years. In conceptual terms, international energy law has been discussed as a distinct academic discipline for at least two decades.4 In practice, international energy law is one of the more prestigious areas for law firms.5 Governments also have dedicated energy laws, ministries, and regulators. Moreover, private financial products dominate renewable energy projects.6 Furthermore, there is a marked increase in international disputes attributed to renewable energy.7 This article focuses on the promotion of renewable energy through the development of international energy law. Three complementary paths are suggested. The first advocates for the advancement of international energy law (as a distinct discipline) to govern all energy resources. The second uses the energy trilemma as a prism for developing a framework for renewable energy law. The third seeks to elevate emerging international renewable energy law principles and practices (soft law) into mainstream international law frameworks. The article is structured as follows. Section II provides an overview of legal developments in renewable energy, which includes an account of historical issues in the transnational governance of energy resources. Permanent sovereignty over natural resources (and renewable energy resources) as well as the appearance of a lex petrolea are dealt with. Section III sets out a summary of the fragmented international legal framework for renewable energy. It consists of two parts with (i) three examples of hard law instruments of international renewable energy governance: the Statute of the International Renewable Energy Agency (IRENA Statute);8 the United Nations Framework Convention on Climate Change (UNFCCC);9 and the Energy Charter Treaty (ECT)10 and (ii) some soft law mechanisms of renewable energy governance, namely: the International Energy Charter; the Rio Declaration on Environment and Development; the Johannesburg Declaration; and the Sustainable Energy for All Initiative. Section IV proposes three pathways for the development of an international renewable energy regulation framework. This introduction concludes with a few notes on terminology. Although definitions and distinctions are useful in conceptualizing energy law, they disguise the reality that energy law is probably one of the more complex areas of law.11 From this complexity has emerged ‘the energy trilemma’, which was formulated by the World Energy Council12 and is a summation of the most common and pressing global energy challenges to the law today. The definition of the energy trilemma has many variations, but they all have three fundamental challenges: those emanating from economics (affordability), politics (energy security or security of energy supply), and the environment (including climate change and sustainability).13 Whereas fossil fuels are those that are depletable and release carbon dioxide emissions to the atmosphere, sustainable energy resources are associated with energy produced and used in ways that support human development over the long term in all of its social, economic, and environmental dimensions.14 This definition may include other low-carbon sources of energy like nuclear power.15 Renewable energy, on the other hand, refers only to primary energies that are regarded as inexhaustible in terms of human (time) dimensions.16 These energies form the focus of this article and are solar, geothermal, wind, tidal, and (in some cases) hydropower. II. Developments in the wake of renewable energy: the debate on sovereignty over natural resources and the lex petrolea 1. Sovereignty over natural resources This part commences with an account of issues that have dominated international transactions over fossil fuels located in developing countries, which was a precursor to the current debate on renewable energy resources. The technological nous to extract these reserves was in the hands of multinational corporations founded in developed States. As events unfolded, neither of these parties would enjoy these resources without a symbiotic legal arrangement between States and private parties. In the period between 1945 and 1980, attempts to balance the conflicting interests between developing nations and transnational corporations led to the emergence of some form of transnational commercial energy law. The United Nations (UN) system brought to the fore the gulf in philosophical and functional differences between developed States and developing ones over natural resources. This led to a global recalibration of the economic relations between developed and developing countries.17 The formation of the UN, the creation of the Organization of the Petroleum Exporting Countries in 1960, and the emergence of post-colonial States created a unified call for fairer redistribution of natural wealth.18 With these calls came the assertion of sovereignty, which has been sensationally described as ‘the most glittering and controversial notion in the history, doctrine and practice of international law’.19 The UN General Assembly first used the phrase ‘permanent sovereignty over natural resources’ in 1952.20 Ten years later, nationalization of foreign assets was allowed but only if appropriate compensation was given to the investor and where the seizure was for public purposes, security, or the national interest.21 In 1974, developing nations introduced radical changes to the legal principles of nationalization.22 The most significant was the Charter of Economic Rights and Duties of States.23 This Charter confirmed that States may seize and nationalize foreign investments provided that they give ‘appropriate compensation’ in good faith. Moreover, unless there was an agreement for an alternative forum, any resultant dispute was subject only to the State’s domestic law.24 A contrary view was taken by a number of developed States,25 which contested the UN Declaration on the Establishment of a New International Economic Order in the 1970s. Presently, some principles such as sovereignty and protection of the environment, have become accepted principles of the international order.26 Permanent sovereignty over natural resources has generated incredible controversy in the energy sector. Issues such as political risk, expropriation, fair and equitable treatment of foreign investors, and compensation for wrongful or unfair action have been the subject of both academic debate and international disputes.27 These contests demonstrate that sovereignty over natural resources evolved from a mere political declaration to a fundamental tenet of international law with serious implications on energy investment. The evolution of permanent sovereignty over natural resources in the energy industry reflects broader trends in the development of international law, such as the evolving role of soft law in energy governance (discussed in section IV.3 below) and the influence over national law.28 An example is the Supreme Court of the United States acknowledging that there are few issues in international law today on which ‘opinion seems to be so divided as the limitations on a State’s power to expropriate the property of aliens’.29 Although some object to territory-based jurisdictional schemes for onshore renewable energies,30 the State could stake a claim based on the territorial dimension of sovereignty.31 Thus, geothermal and hydroelectric power would fall in this category because generation capacity is tied to the land. However, could a State successfully claim permanent sovereignty over the flow of wind over their territory or rays of sun? There are conflicting views: some deem solar energy as res communis—for the enjoyment of all. Others view it as part of the benefits derived from the use of the natural environment, over which a State exercises sovereignty. The UN resolutions on permanent sovereignty outlined above use the expression ‘energy resources’ vaguely. This might be problematic to interpreting modern treaties like the ECT when dealing with renewable energy technologies, which rely on natural elements.32 This ambiguity has been a long-standing problem even at the national level, where courts have criticized domestic laws for lacking specific provisions that grant access to the sun’s rays.33 This uncertainty is settled, to some extent, by modern international instruments (some of which are highlighted in section III.3.B below) that expressly affirm State sovereignty over natural resources,34 This principle is now customary international law35 and also forms the basis for State responsibility not to cause environmental damage.36 This article acknowledges the importance of sovereignty but suggests that its rigid interpretation may hinder the development of renewable energy. An unyielding insistence on State control over natural resources is archaic because the geo-political and economic realities in the energy sector have moved towards cooperation.37 Also, sovereignty often directly resides in the people who then have a much higher stake in energy development than the State machinery.38 Moreover, renewable energy assets do not necessarily have an obvious connection with any particular territory, situs, or State law, which makes an inflexible application of State sovereignty a hindrance to transnational deployment of renewable energies.39 These issues inspire the proposed international energy law framework (in section IV below). 2. From lex petrolea to lex renewabilia? The idea of a special transnational law applicable to the energy industry presents complex challenges. Lex petrolea40 and lex mercatoria41 dynamics have troubled scholars for decades. Lex petrolea was formally introduced to the lexicon of international law debate through the famous Aminoil and Kuwait petroleum exploration dispute.42Lex petrolea attempts to typify what a transnational energy law community is. The controversial piece by Alfredo de Jesús gave a summation as follows: What better representation of a worldwide agreement than the recognition of the existence of the lex petrolea: a spontaneous and transnational legal order created by the players of the worldwide oil and gas industry (transnational petroleum society/Societas Petroleatorum), functioning under the belief that the sharing of the common purpose of making petroleum exploration and production possible and profitable unites them with a special bond (transnational petroleum solidarism), that encourages the creation of rules specially designed not only to govern their contracts (transnational petroleum contracts) but also to serve the needs and interests of the transnational petroleum society?43 This definition, though not always precise, is summed up as the principles in published arbitral awards relating to the oil industry, which have created a customary law comprising legal rules adapted to the industry’s nature and specificities.44 Some argue that lex petrolea demonstrates the pluralistic nature of international law, which consists of overlapping regulatory regimes administered by various States and non-State actors.45 This position is opposed. The very existence of lex petrolea as a legal order is challenged because: (i) different jurisdictions apply oil and gas law with varying approaches, which makes it a branch of national (and not international) law;46 (ii) the content of lex petrolea is derived from analyses of various arbitral awards that are limited in scope both in subject matter and parties (great emphasis is on disputes between a State and a company or on expropriation);47 (iii) there is a lack of normative specificity on the common rules and principles that are peculiar to the oil industry that would apply universally (even from an analysis of decided cases);48 and (iv) the identifiable common provisions in international petroleum contracts do not form rules but, rather, identify prudent practices.49 However, as highlighted in the preceding paragraph, the idea of many energy laws for each energy source is problematic. An alternative framework for international renewable energy law is proposed here. It would be one that encompasses various doctrinal and practical pathways (as well as soft law and hard law mechanisms). As is discussed in section IV below, this approach would offer a more comprehensive doctrinal and regulatory basis than a separate lex renewabilia (fashioned along the lines of lex petrolea). Founded on an overarching international energy law framework, the practical specificities of each energy source would be best addressed through bespoke rules and principles, which could progressively be formulated though soft law. III. The international legal framework for renewable energy 1. Fragmented international regulatory mechanisms for renewable energy Although international law on renewable energy has the potential to flourish, its ability to have rapid universal application faces a major challenge—that is, the need to establish a cohesive regulatory framework. Strictly speaking, there is no specific treaty dedicated to the international governance of renewable energy. The international legal framework for renewable energy consists of a mixture of legally binding obligations and other instruments that have contributed to the development of global energy law and policy.50 This section cites some of the major instruments and institutions that are associated with the governance of international renewable energy. The framework outlined below is by no means an exhaustive list. There are other more comprehensive works that analyse international sources and institutions of renewable energy law.51 Also, there are diverse principles in other disciplines that touch on renewable energy that are not highlighted here. For example, it is acknowledged that the trade aspects of renewable energy outlined in the General Agreement on Tariffs and Trade, the WTO Agreement on Trade-Related Investment Measures, and the general WTO principles governing international trade are applicable in renewable energy commerce.52 This part is divided into two subsections. Subsection III.2 cites three examples of hard law sources of international renewable energy law, while subsection III.3 outlines four soft law frameworks that deal with renewable energy. These examples demonstrate the dispersed nature of the sources of international renewable energy law and policy. This then sets the scene for the discussion of some proposals on harmonization of international energy law for renewable power. In broad terms, ‘hard law’ refers to legally binding international obligations as contained in treaties.53 Soft law here refers to ‘any international instrument (other than a treaty) containing principles, norms, standards, or other statements of expected behaviour’.54 It includes declarations (on treaty norms) by institutions established by a treaty.55 The classification (of hard and soft law sources) is not made to merely demonstrate that there is a distinction between the two but, rather, to propose that a more holistic approach that harmonizes principles from diverse sources is essential for a more efficacious renewable energy framework. 2. Examples of hard law instruments of international renewable energy governance This section outlines three major international instruments that are relevant to renewable energy regulation: IRENA Statute; the UNFCCC; and the ECT. A. IRENA Statute The IRENA Statute was established, inter alia, to promote the sustainable use of renewable energy.56 Strictly speaking, the Statute is the only international instrument tailored to exclusively promote renewable energy.57 The Statute creates an international organization (IRENA) with a large membership of States. IRENA is a strategic ‘renewables hub’ for multilateral action and international cooperation on renewable energy finance, technology, and knowledge.58 A significant step made by IRENA is its broad consultative engagement of all energy stakeholders (including the private sector) to deliver scalable renewable energy systems.59 Despite its favourable standing in global renewable energy regulation, the statute appears to defer to State sovereignty and national priorities, which is a major drawback.60 Although the IRENA Statute is a hard law instrument, IRENA itself may be considered a ‘soft organization’.61 This limitation lends credence to the proposal that an all-encompassing approach to a renewable energy framework (of both hard and soft law) would have a greater impact than the traditional treaty focus. B. UNFCCC The preamble of the UNFCCC was the first multilateral treaty to declare that anthropogenic greenhouse gas emissions cause global warming. No express provision in the UNFCCC touches on renewable energy. However, the upsurge of interest in renewable energy is closely linked to climate change law and the role of States in mitigating adverse effects of climate change. The most significant outcome of the UNFCCC is its twenty-first Conference of the Parties (COP 21), which was attended by 195 States and resulted in the Paris Agreement,62 a statement of intent to cut down global fossil fuel use. The preambular paragraphs of the Paris Agreement mention the promotion of universal access to sustainable energy ‘through the enhanced deployment of renewable energy’.63 This has led to ‘significant public and political support for the steps needed to monitor and enforce the transition to a lower carbon economy’.64 C. ECT The ECT started as a regional multilateral treaty with the aim of regulating energy markets in Europe.65 Its membership, upon promulgation in 1988, consisted of exclusively Eurasian countries but has since expanded to include not only observer States but also international organizations. Its regional connotation has perhaps hampered its further growth beyond the EU and the Organization for Economic Co-operation and Development (OECD). Nonetheless, it is arguably the most comprehensive international instrument on international energy law.66 With respect to renewable energy, the ECT fails to make any direct textual provision for promotion of renewable power. Nevertheless, it contains extensive provisions on investor protection, preserves the sanctity of investment contracts, and establishes a robust energy dispute resolution mechanism.67 Its application to renewable energy is given excellent treatment by Stuart Bruce, who argues that renewable energy obligations can only be extrapolated from two treaty sections: the one on ‘Economic Activity in the Energy Sector’ and the other on ‘Environmental Aspects’.68 This article proposes that the ECT (though not expressly addressing renewable energy) could be integral in establishing an overarching framework for international energy law discussed in section IV below. 3. Some soft law mechanisms of renewable energy governance There are numerous sources of international law and their constitutive instruments. The recognition of what denotes ‘soft law’ can be abstruse, especially when certain legislative international bodies are considered ‘soft organizations’.69 However, soft law instruments are not necessarily non-binding or without legal effect. This section summarizes four major international initiatives that, while not specifically tailored to the renewable energy sector, are relevant to renewable energy regulation: the International Energy Charter; the Rio Declaration on Environment and Development; the Johannesburg Declaration; and the Sustainable Energy for All Initiative. A. The International Energy Charter The International Energy Charter is a declaration of the political intention to strengthen energy cooperation between its signatory States.70 It expressly declares that it does not bear any legally binding obligation or financial commitment but maps out common principles for international cooperation in the field of energy. The Charter addresses renewable energy in its objectives and calls for action on: energy efficiency and environmental protection; cooperation; and education and training.71 The signatories undertake to enter into specific agreements for the development of renewable energy sources.72 B. The Rio Declaration on Environment and Development The Rio Declaration forms part of the renewable energy framework through Agenda 21,73 an instrument developed at the 1992 Rio Conference.74 The Rio Declaration links long-term economic progress with environmental protection. Its relevance to this discourse is the provision that specifically encourages States to create new international partnerships with diverse stakeholders to adopt and transfer expertise and technologies on renewable sources and systems.75 C. The Johannesburg Declaration This Declaration was made under the auspices of the World Summit on Sustainable Development in Johannesburg in 200276 and included a Plan of Implementation.77 It is lauded for containing the most extensive provisions supporting technology transfer and the development, implementation, and commercialization of renewable energy.78 Moreover, the Declaration aggregates issues related to global renewable energy such as energy security, climate change, economic growth, and sustainable development for the first time.79 The Declaration and its Johannesburg Plan of Implementation are recognized as the most extensive soft law instruments in not only supporting renewable energy development but also in the international promotion of domestic energy policy.80 This is especially relevant to the proposals in the next chapter on forging a harmonized international energy law regime for renewable energy. D. The Sustainable Energy for All Initiative (SE4ALL) In 2012, the SE4ALL recognised energy as a key driver for sustainable development.81 It focuses on the cooperation and collaboration of States, international organizations, the private sector, and civil society, inter alia, for doubling the share of renewable energy in the global energy mix to 33 per cent by 2030. One of its core objectives is to create supportive mechanisms to overcome the barriers to any practical implementation of sustainable energy. One of the greatest outcomes of the SE4ALL was the target set to double renewable energy capacity by the year 2030,82 a challenge taken up by IRENA.83 There has been criticism that some of the leading international law instruments highlighted above are unsatisfactory. The provisions in the ECT and its Protocol on Energy Efficiency and Other Related Matters,84 the Kyoto Protocol to the United Nations Convention on Climate Change,85 and the Johannesburg Declaration on Sustainable Development86 have been termed as ‘simply miscellaneous’.87 Furthermore, international energy law operates in a context where there is no international legislator.88 There is a need to harmonize and restructure the existing regulatory framework to assure all parties that dispute resolution forums will not take adverse interpretive approaches to low-carbon investment.89 IV. Towards the development of a harmonized international framework for renewable energy This section proposes a combination of three pathways to harmonize the framework for renewable energy law. First, it promotes international energy law as the foundation upon which renewable energy laws should be promulgated because international energy law is more universally accepted (than renewable energy law). It has also gained more credibility as an overarching legal framework. Second, the energy trilemma is proposed as a substantive and methodological prism for designing a renewable energy framework. The energy trilemma forms a good basis for identifying and assessing specific global challenges (political, economic, and environmental). Each challenge may then be dealt with based on distinct analyses of problems, types of policy instrument, and rationales for law and policy intervention.90 Third, the mainstreaming of soft law principles on renewable energy would ensure that legal development in this important field meets the dynamic needs of global energy markets. This may transform academic insights on soft law into practical tools for policy-makers.91 1. The pursuit of an overarching international energy law: Quo vadis?92 Energy law takes many definitions and has a web of parties and players.93 Some academics have argued that when energy law is defined from a functional perspective—that of regulating the exploitation of energy resources—it no longer is ‘energy law’ but, rather, many ‘energy laws’, one for each type of energy carrier.94 Many of the leading texts also focus on regional energy laws and not one global framework.95 The problem of standardizing a definition for energy law, suggesting a theoretical framework, or advancing guiding principles is not a new one.96 A long-standing example is the discourse on lex petrolea and lex mercatoria (discussed in section II.1). More recent debates suggest that lex petrolea exists to a limited degree today.97 Other more critical assessments dispense with the idea altogether, arguing that it is ‘inappropriate, is at best unhelpful and at worst pernicious, and would be best abandoned’.98 Recently, it has been suggested that there is an emerging lex mineralia, which demonstrates the attempt to elevate sub-disciplines of energy and natural resources law to stand alone legal regimes.99 It is no wonder, therefore, that various aspects of international energy law attract substantial scholarly interest. For example, academics have made contributions in areas such as international energy and the environment.100 Others have examined international energy investment law101 with discourse on international energy infrastructure102 gaining traction.103 The proposal here is different. One fundamental question is whether international energy law operates within a global energy system or as a web of energy systems that create one industry. It is suggested that international energy law is a distinct overarching discipline with many sources, facets, and systems. This article does not place separate emphasis on the law that applies to each energy source but, rather, advocates for universal application of international energy law, which has more certainty and global acceptance as a legal concept.104 It endorses one ‘international energy law’ on which sub-disciplines like renewable energy law may be anchored. Conceptually, a recent review of international energy law excellently evaluates its normative basis.105 This treatise refers to numerous sources that have contributed to the modern understanding of international energy law. This understanding relies on principles of environmental law, climate change law, and energy law to call for the transition to cleaner energy sources. This resonates with the theme here. Its co-author (Adrian Bradbrook) was the academic who last made a comprehensive review of a single international energy law over 20 years ago.106 Although it is not suggested that the definition of international energy law is obvious, this article proceeds on the basis that the development of international energy law is self-evident.107 This presumption is based on various factors: international energy law has now gained mainstream recognition.108 It is flourishing in legal practice.109 Moreover, it finds support in the lex specialis/lex generalis dynamic: that a more specific rule (international energy law here) regulates a matter more effectively than a general rule (international law or general principles from other disciplines).110 This foundation—that the existence of international energy law itself is not an area of dispute for the purposes of this article—allows this section to assess a fundamental question. That is, how do we enhance the development of renewable energies through international energy law? Promoting an overarching international energy law facilitates the discussion on renewable energy in a more suitable context than that of climate change or environmental law. This is a departure from earlier texts, which had hamstrung international energy law by classifying it as a subtext of environmental law.111 Practically, implementing international energy law though traditional mechanisms like the UN system, through the International Court of Justice’s advisory opinion process or in a resolution of the UN General Assembly,112 can be quite onerous.113 The process requires massive consensus and involves bureaucratic manoeuvres between nation-states. Also, it is not necessarily effective in encouraging renewable energy investment as only States are represented at the UN General Assembly, yet the energy industry has other key (non-State) stakeholders. Moreover, rules from formal dispute resolution forums like the ICJ may produce somewhat ambiguous pronouncements on the character of unwritten rules of law.114 Such considerations further suggest that the challenges of international development of renewable energy are best addressed through harmonized international energy law; measured regulation by using the energy trilemma as a prism; and giving greater credence to soft law in renewable energy regulation. 2. The energy trilemma as a prism for developing a renewable energy framework In order to resolve the energy trilemma, the ideal energy source would have to be affordable, clean, and ubiquitous. Presently, however, such resources do not exist.115 Renewable energies are the cleanest available resources, but they do not yet fully satisfy the affordability and availability test. This is a global concern because the renewable energy sector consists of an intricate web of parties (governments, international organizations, multinational enterprises, non-State actors, lending consortia, private parties, and culturally disparate societies). This article advocates for a harmonized international energy law and policy to be at the core of generating solutions to global energy systems.116 However, this would need co-ordinated ‘legislation, action and responsibility’ in individual regions.117 In order to operationalize the main framework of international energy law proposed above, each of the three elements of the energy trilemma must be taken into account. A. Renewable energy and economics The energy sector is not exempt from the factors that influence investment choices like: costs, benefits, revenue, profit, and availability of finance. However, energy networks are peculiar. They are usually natural monopolies because energy installations are excessively expensive.118 Energy stakeholders, especially utility owners, focus on maximizing profit from aged facilities without having to make massive capital outlays on new ones.119 Conversely, environmental finance focuses on producing the greatest environmental benefit for the largest number of people at the lowest possible cost.120 This dichotomy between profit and environmental benefit operates in a context where there is no overarching finance policy for renewable energy. Likewise, there is no finance policy for a sustainable environment.121 This is a major global challenge for energy law, which should aim at incentivizing new low-carbon energy infrastructure.122 It is argued that the challenge in making the renewable energy revolution a reality is no longer a technological one.123 It is regulatory. Anecdotal evidence suggests that the shift of the Danish Oil and Gas Company into a renewable energy company means that, with legal support, the transition to renewable energy can be commercially viable.124 Renewable energy development and international law intersect for several reasons. Enormous capital outlay and long-term activities are required in energy development.125 Therefore, without international frameworks that regulate and manage the financing of renewable energy, it is unlikely to have development of renewable energy. If financing regimes operate within traditional models and remain largely profit driven, the transition to renewable energy will be hampered. Some assert that energy finance is dominated by traditional project finance methodologies (debt and equity), which do not always address the peculiar aspects of energy investment such as minimizing environmental costs. Unlike other ventures, the lowest cost, not maximum return, is the goal of sustainable investment.126 Nevertheless, effective investment risk-reduction in renewable energy is still dependent on implementation and compliance with transnational commercial law instruments.127 These instruments, in turn, rely on international organizations, which play a crucial role in transnational renewable energy investment.128 To spur rapid development of renewable energy, a paradigm shift is needed from the policies currently dominating energy markets.129 There should be greater focus on a holistic assessment of the costs of each energy source than on profit. The EU announced that it will deploy €5.9 billion for upgrading dated energy infrastructure, intended for singular markets and tailored for fossil fuels.130 Private enterprises would either be unable or unwilling to spend such a huge capital outlay on renewable energy installations. Financial resources are there, and the challenge to appropriately spend these finances is urgent.131 The energy mix will have more sustainable energy when law and policy solutions integrate the true cost of fossil fuels, which will make them more expensive, while making renewable energy less expensive.132 The untenable alternative would be to hope that the cost of renewable energy declines contemporaneously with the market willingly adopting cleaner energy. B. Renewable energy, energy security, and geopolitics There is increasing recognition of the importance of new energy projects to energy security.133 The critical socio-economic importance of energy makes it a special commodity134 and a public good for which a special right arises.135 Some argue that specific human rights norms should apply to the energy industry.136 This prominence of energy to daily life draws special political attention at local, national, and international levels. Apprehension over security of supply is now considered a global phenomenon.137 The development of customary international law on energy is politically motivated,138 and energy security is classified as the foremost energy infrastructure challenge to the North Atlantic Treaty Organization.139 Therefore, the role of politics in consensus building affects the formulation and implementation of renewable energy regulations. Also, environmental activism (which favours renewable energy) has generally been characterized by political anti-establishment sentiment led by non-State actors.140 Energy is integral to societal development, which makes it the focus of national and global politics. States can be rational actors that seek to maximize the welfare of their citizens.141 However, there may be conflicting (energy) interests between States and a variance in their regulatory approaches.142 This may create institutional inertia143 and public policy uncertainty, which deter private investment in renewable energy.144 Enabling international energy law frameworks may encourage States to be ‘rational egoists’ that cooperate for mutually beneficial endeavours (rather than pursuers of selfish national interest).145 An example is the progressive joint implementation of large-scale energy projects facilitated by harmonized policies between East and West Europe at the height of political and diplomatic aggression in post-1945 Europe.146 This demonstrates that the right international legal framework can enhance the status of sustainable energy policy to constitutional objectives in national legislative processes.147 These objectives then oblige the State to align State resources with those aims.148 C. The wind of change: renewable energy and the environment Climate change is a common global conundrum that has been described as the greatest energy-related externality of all time,149 yet the international law framework for sustainable energy development remains inadequate.150 In 2016, at least seven unprecedented climate conditions occurred: consecutive hottest months; hottest day in India in recorded history; hottest autumn ever recorded in Australia and highest amount of destruction in Australia’s Great Barrier Reef; highest temperature in Alaska; the maximum extent of recorded melting of Arctic ice; and the highest annual increase in global carbon dioxide emissions.151 Therefore, though there are regional variances, there is a definite common global need for more sustainable energy sources. Fossil fuels are depletable, exorbitant to extract, and a major contributor to adverse effects of anthropogenic climate change.152 These are good reasons for international action against climate change, divesting from fossil fuels, and increasing renewables in the global energy mix. The idea that renewable energy should be globally dominant for more sustainable energy systems is not a new one.153 Despite facing numerous false starts, recent international legal developments give a more positive outlook for the deployment of renewable energy on a global scale (see section III). The conclusion of the Paris Agreement, in particular, was the cause of great optimism to Sir David King.154 He also postulated that the universal endorsement of the agreement was unprecedented in modern times and will lead to more sustainable energy systems. This change is beginning to manifest. China, the greatest coal consumer in recent history, publicized plans to cap coal consumption by 2020.155 This announcement was followed by action, including a massive roll-out of renewable energy projects, making China a global leader in renewable energy uptake as of November 2017. In contrast—and this highlights the importance of politics in the energy sector—the Trump administration in the USA threatens to hamper the gains that were made by the Paris Agreement. The USA, despite being the largest carbon dioxide emitter from the OECD,156 has downgraded climate change from the national list of global threats in its national security strategy.157 These examples highlight the reality that environmental or climate change policy alone would not lead to the energy transition. More is needed to address environmental challenges through harmonized policy regimes that recognize the myriad trade-offs in transnational energy systems. The energy trilemma is a good matrix for this. 3. Mainstreaming of soft law principles in international renewable energy regulation The very existence of soft law is contentious. Traditional sources of international law, summarized by the Statute of the International Court of Justice, seem to exclude soft law.158 Opponents of soft law argue that if a text is not hard, it is not law.159 Likewise, advocates of classical sources of law (legal positivists) assert that laws must be obligatory in nature.160 In international law, this problem is accentuated because the ascertainment of norms is deemed to be uncertain and ‘anarchic’.161 Those objecting to soft law place the authority of the State at the core of international law-making and implementation.162 This excludes other actors (integral to the formulation of soft law) from legitimately formulating international law. Moreover, harsh criticisms of soft law have been voiced in international forums. The European Parliament163 declared that soft law is vague and insidious164 and even warned against future reliance on soft law by the EU.165 Proponents of soft law submit that the term ‘soft law’ itself contains normative elements that lead to expectations of compliance.166 Compliance, it is argued, is observed from State behaviour that matches international soft law norms, not from the hardness of the law.167 They distinguish acquiescence from implementation (the latter being the purview of hard law). This is demonstrated by the conduct of States, which are increasingly particular about the language and provisions of soft law instruments.168 Some countries have even formally objected to the language used and have assigned their own interpretation of soft law provisions.169 Unlike the traditional positivist view highlighted above, it is now recognized that soft law may also elaborate or clarify treaty provisions and provide evidence of the emergence of an international customary law.170 The European Court of Justice seems to rely on soft law and emerging principles. Though not formally expressed as such, the doctrine of precedent and rules established in already decided energy cases (even fairly recent ones) are unequivocally applied in resolving subsequent energy disputes.171 Phrases such as ‘it is settled in case law that’ are repeatedly used by EU organs.172 Although decided cases are not soft law, reliance on principles outside of strict treaty provisions is a step towards formalizing energy law principles that are not encapsulated in hard law. This article submits that soft law provisions on renewable energy can be ‘hard’ in energy practice. Commitments by States to international obligations (despite their nature) are taken almost equally as seriously.173 Duties are generally observed; the issue of those provisions being anchored in soft or hard law remaining largely irrelevant. Thus, the pertinent question is not whether soft law obligations are binding or not but, rather, whether States respond to their obligations as expected. A renewable energy legal framework should focus on whether there is broad recognition or consensus over its rules, principles, and institutions. This may be useful in various ways. First, some soft law instruments may set new standards that ultimately crystallize into a binding instrument.174 The argument that soft law may be a step towards the adoption of a treaty or binding agreements175 finds credence in IRENA, which is an outcome of energy-related regional and international conferences.176 Second, they may elaborate or reaffirm provisions already contained in a treaty or another soft law instrument. Third, soft law may contribute to the formation of customary international law.177 Fourth, soft law can have a teleological value in interpreting hard law or play a passive role in building broad consensus on energy policy without following longer formal normative processes. Moreover, soft law can ‘soften up’ governments and stakeholders to agree to norms where there is some reluctance or scepticism.178 The flexibility and dynamism of soft law instruments and the organizations that promulgate them create room for more elaborate provisions on renewable energy than traditional legal sources. Also, soft law instruments may bridge the gaps in conventional international law processes.179 For example, traditional notions like international responsibility for harmful conduct could hinder environmental protection, whereas soft instruments like the Oslo Principles on Climate Change Obligations emphasize that both States and enterprises are obligated to avert anthropogenic climate change,180 and so do the Principles on Climate Obligations of Enterprises.181 With the assortment of renewable energy stakeholders, shared accountability for harmful actions among all actors (without invoking the formal breach-based responsibility of international law) could be more effective. Also, regulation requiring mitigation for pollution is one of the biggest risks to fossil fuels.182 Thus, greater emphasis should be placed on establishing effective regulation and not on strict conformity with legal traditions. The ideal legal framework for renewable energy may entail the conclusion of a global international energy law treaty. This has been proposed by Rosemary Lyster and Bradbrook.183 However, that remains a long-term aspiration due to the practical difficulties and bureaucracy that characterize formal hard law structures in international law. An excellent alternative, an energy protocol to the UNFCCC, has also been postulated by Bruce.184 This would reduce, but not eliminate, the consensus formalities of operating within a convention. The reinforcement of an overarching international energy law instrument (perhaps the international energy charter framework as a global successor to the more limited ECT), coupled with progressive adaptation of new rules through soft law, could work. The rapid global development of international environmental law is an example of the positive contribution of soft law to an emerging discipline.185 V. Conclusion Since no harmonized international renewable energy law exists, this article proposes the development of an overarching international energy law that is informed by the energy trilemma and customized by mainstreaming soft law. These parallel, yet interdependent, processes could be effectuated in several ways. First, for the development of a comprehensive international energy law, the pathways discussed in section IV would form both the ideological and practical basis for regulating renewable energy. This all-embracing legal framework would form foundational principles upon which specialized rules and regulations on renewable energy (or other energy sources for that matter) would be made. Second, the energy trilemma could be used both as a methodological and normative tool for renewable energy regulation. As a methodological tool, the energy trilemma could be an excellent matrix for the assessment of the efficacy of existing energy laws. Normatively, it could be used to assess the existing dispersed laws with a view of harmonizing various international initiatives and formulating specialized regulatory mechanisms on renewable energy. Third, as highlighted in section IV.3 above, the mainstreaming of soft law provisions would ensure progressive application of energy law principles by: setting new standards, interpreting, elaborating, or reaffirming current energy law provisions, contributing to the formation of customary international law and effectively building consensus among diverse stakeholders on energy policy. In conclusion, the complementary pathways recommended here could incrementally bridge both the conceptual and practical gaps in meeting the challenges and maximising the opportunities for renewable energy. This would make immediate action possible as the globe transitions to sustainable energy. Footnotes 1 Martti Koskenniemi and Paivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15/3 (2005) Leiden Journal of International Law, 553–79. 2 Arnold Pronto, ‘Some Thoughts on the Making of International Law’, 19/3 (2008) European Journal of International Law, 601 asserts: ‘Today, international law is made in a large number of fora, including multilateral processes, tribunals and the organs of international organizations’. 3 See, Philip Daniel, Michael Keen, and Charles McPherson (eds), The Taxation of Petroleum and Minerals: Principles, Problems and Practice (Routledge 2010); Kim Talus, Scott Looper, and Steven Otillar, ‘Lex Petrolea and the Internationalization of Petroleum Agreements: Focus on Host Government Contracts’, 5 (2012) Journal of World Energy Law and Business, 181–93. 4 See, Adrian Bradbrook, ‘Energy Law as an Academic Discipline’, 14/2 (1996) Journal of Energy & Natural Resources Law, 193. 5 See, e.g., Chambers and Partners, ‘Global Guide: Projects & Energy – Global-wide’, <https://www.chambersandpartners.com/15649/996/editorial/2/1> (accessed 12 February 2018); Chambers Associate, ‘Practice Areas: Energy and Projects’, <http://www.chambers-associate.com/practice-areas/energy-and-projects> (accessed 12 February 2018); Julia Derrick, ‘Solicitors’ practice areas: Energy & natural resources’, <https://www.lawcareers.net/Solicitors/SolicitorPracticeAreas/Energy-natural-resources> (accessed 12 February 2018). 6 International Renewable Energy Agency and Climate Policy Initiative, Global Landscape of Renewable Energy Finance, 2018 (IRENA, 2018). 7 Benoit Le Bars, ‘Recent Developments in International Energy Dispute Arbitration’, 32/5 (2015), Journal of International Arbitration, 543-50. 8 IRENA, The Statute of the International Renewable Energy Agency (IRENA Statute), (26 January 2009), available at <http://www.irena.org/-/media/Files/IRENA/Agency/About-IRENA/Statute/IRENA_FC_Statute_signed_in_Bonn_26_01_2009_incl_declaration_on_further_authentic_versions.pdf?la=en&hash=635C494208DD405EA8CD2BDB04414FECD40F55F1> (accessed 13 December 2017). 9 UN General Assembly, United Nations Framework Convention on Climate Change (20 January 1994; resolution adopted by the General Assembly), A/RES/48/189, available at <http://www.refworld.org/docid/3b00f2770.html> (accessed 14 December 2017). 10 Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects, 2080 UNTS 95; 34 ILM 360 (1995) (ECT). 11 Raphael Heffron and Kim Talus, ‘The Evolution of Energy Law and Energy Jurisprudence: Insights for Energy Analysts and Researchers’, 10 (2016) Energy Research and Social Science, 1–10, 5. 12 World Energy Council, 2015 Energy Trilemma Index, (February 2015), <https://www.worldenergy.org/wp-content/uploads/2015/11/20151030-Index-report-PDF.pdf?> (accessed 17 November 2017). 13 Raphael Heffron, Darren McCauley, and Benjamin Sovacool, ‘Resolving Society’s Energy Trilemma through the Energy Justice Metric’, 87 (2015) Energy Policy, 168, 169. How energy law and policy attempt to balance the competing interests between economics, politics, and the environment is given more detailed treatment in section IV.B. 14 The definition of ‘sustainable energy’ is adopted from ‘World Energy Assessment: United Nations Development Programme, United Nations Department of Economic and Social Affairs, World Energy Council, World Energy Assessment and the Challenge of Sustainability (2000)’, in Richard Ottinger, “Nicholas Robinson, and “Victor Tafur (eds), Compendium of Sustainable Energy Laws (Cambridge University Press, 2005), 2, which expounds that ‘this term does not refer simply to a continuing supply of energy, but to the production and use of energy resources in ways that promote – or at least are compatible with – long-term human well-being and ecological balance’. 15 See for further analysis of what constitutes sustainability, Aviel Verbruggen and Erik Laes, ‘Sustainability Assessment of Nuclear Power: Discourse Analysis of IAEA and IPCC Frameworks’, 51 (2015) Environmental Science and Policy Journal, 170-80. 16 Martin Kaltschmitt, Wolfgang Streicher, and Andreas Wiese, Renewable Energy: Technology, Economics & Environment (Springer-Verlag, 2007), 35. 17 Wolfgang Friedmann, ‘The Changing Dimensions of International Law’, 62 (1962) Columbia Law Review, 1147. 18 Daniel Vielleville and Baiju Simal Vasani, ‘Sovereignty over Natural Resources Versus Rights under Investment Contracts: Which One Prevails?’, 5/2 (April 2008) Transnational Dispute Management, available at <https://www.crowell.com/documents/Sovereignty-Over-Natural-Resources-Versus-Rights-Under-Investment-Contracts_Transnational-Dispute-Management.pdf> (accessed 1 March 2018). 19 Helmut Steinberger, ‘Sovereignty’, in Max Planck Institute for Comparative Public Law and International Law, Encyclopaedia for Public International Law, 10 (North Holland, 1987), 414. 20 UN General Assembly Res 626 (VII) (1952). 21 UN General Assembly Res. 1803 (XVII) (1962). 22 UN General Assembly Res. 3201, 6th Special Session, GAOR, Supp. (No. 1), U.N. Doc. A/9559 (1974). 23 UN General Assembly Res. 3281, 29 GAOR, Supp. (No. 31), UN Doc. A/9361 (1974). 24 Ibid, Art. 2.2(c). 25 Including France, Germany, Japan, the United Kingdom, and the United States. See UN General Assembly, Declaration on the Establishment of a New International Economic Order, (1 May 1974), A/RES/S-6/3201, available at <http://www.un-documents.net/s6r3201.htm> (accessed 16 December 2017). 26 Ian Brownlie, Principles of Public International Law (Oxford University Press, 2003). 27 Noah Rubins and Stephan Kinsella, International Investment, Political Risk and Dispute Resolution (Oceana Publications, 2005), 261-78. 28 Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 2008), 28. 29Banco Nacional de Cuba v Sabbatino, 376 U.S. 398, 424 (1964). 30 Paul Schiff Berman, ‘Global Legal Pluralism’, 80 (2007) California Law Review, 1155. 31 Hannah Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, 57 (2009) American Journal of Comparative Law, 631. 32 Tullio Treves, Francesco Seatzu, and Seline Trevisanut (eds), Foreign Investment, International Law and Common Concerns (OUP, 2013), 255. 33 Raphael Heffron, Anita Rønne, Joseph Tomain, Adrian Bradbrook, and Kim Talus, ‘A Treatise for Energy Law’, 11 (2018) Journal of World Energy Law and Business, 3, cite CJ Griffith of the High Court of Australia: Commonwealth v Registrar of Titles for Victoria (1918) 24 CLR 348, 354. 34 Stockholm Declaration, Principle 21; Rio Declaration, Principle 2. 35Legality of the Threat or Use of Nuclear Weapons, Adv. Op., ICJ Rep. 1996 (I) 226. 36 Marc Bungenberg and Stephan Hobe, Permanent Sovereignty over Natural Resources (Springer, 2015), 46. 37 Gianna Bern, Investing in Energy: A Primer on the Economics of the Energy Industry (Bloomberg Press, 2011), 12: ‘Consortiums are the order of the day and will continue to be over the long term.’ 38 Lillian Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-based Development’, 45 (2012) Vanderbilt Journal of Transnational Law, 785. 39 Ibid, 33. 40 Transnational petroleum law. 41 Transnational mercantile law, usage, and custom recognized internationally. 42 Government of the State of Kuwait v. American Independent Oil Co. (AMINOIL), Award of 24 May 1982, 21 (ILM) (1982) 976. 43 Alfredo de Jesús, ‘The Prodigious Story of the Lex Petrolea and the Rhinoceros: Philosophical Aspects of the Transnational Legal Order of the Petroleum Society’, 1/1 (2012) TPLI Series on Transnational Petroleum Law. 44 Thomas Childs, ‘Update on Lex Petrolea: The Continuing Development of Customary Law Relating to International Oil and Gas Exploration and Production’, 4/3 (2011) World Energy Law & Business, 214. 45 See, Paul Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press, 2012). 46 Terence Daintith, ‘Against “Lex Petrolea”’, 10 (2017) The Journal of World Energy Law & Business, 1–10, 3, 5. 47 Ibid, 5. 48 Doak Bishop, ‘International Arbitration of Petroleum Disputes: The Development of a Lex Petrolea’, 23 (1998) Yearbook of Commercial Arbitration, 1207. 49 Talus, Looper, and Otillar (n 3) 189–91. 50 Martijn Wilder and Lauren Drake, ‘International Law and the Renewable Energy Sector’, in Kevin Gray, Richard Tarasofsky, and Cinnamon Carlarne (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press, 2016), 362. 51 Ibid, Chapter 17. 52 Wilder and Drake (n 50). 53 James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 2012), 367–71. 54 Dinah Shelton, ‘International Law and Relative Normativity’, in Malcolm Evans (ed), International Law (OUP, 2006), 180. 55 Dinah Shelton, ‘Soft Law’, in David Armstrong (ed), The Routledge Handbook of International Law (Routledge, 2009), 70. 56 IRENA Statute (n 8) Art. II. 57 IRENA Statute (n 8) Art. IV. 58 Stuart Bruce, ‘International Law and Renewable Energy: Facilitating Sustainable Energy for All?’, 14 (2013) Melbourne Journal of International Law, 18–53. 59 Ibid, 46. 60 IRENA Statute (n 8) Art. II(a). 61 Jan Klabbers ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, 70 (2001) Nordic Journal of International Law, 403. 62 The Paris Climate Conference of the Parties Agreement (‘COP 21’) to the United Nations Framework Convention on Climate Change (UNFCCC), available at <https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> (accessed 17 December 2017). 63 Ibid. 64 Carbon Tracker Initiative, Considerations for Reporting and Disclosure in a Carbon-constrained World (January 2016), <http://www.carbontracker.org/report/carbon_risk_disclosure_framework/> (accessed 12 December 2017). 65 Ibid, Art. 2. 66 Graham Coop, ‘20 Years of the Energy Charter Treaty’, 29/3 (2014) ICSID Review – Foreign Investment Law Journal, 515–24. 67 ECT (n 10) Art. 10–13. 68 Bruce (n 58) 24. 69 Klabbers (n 61). 70 See the International Energy Charter (2015), <https://energycharter.org/process/international-energy-charter-2015/overview/> (accessed 20 December 2017). 71 Ibid, Objective 3, 6, and 9. 72 International Energy Charter (n 70) Title III. 73 UN Doc A/Conf.151/26 (vol. I), Agenda 21: Programme of Action for Sustainable Development (adopted 14 June 1992, UN GAOR, 46th Sess., Agenda Item 21). 74 UN Doc. A/CONF.151/26 (vol. I), ‘Rio Declaration’ (adopted 14 June 1992). 75 Rio Declaration (n 74) Art. 9.1.2. 76 World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development and Plan of Implementation of the World Summit on Sustainable Development: The Final Text of Agreements Negotiated by Governments at the World Summit on Sustainable Development, 26 August-4 September 2002, Johannesburg, South Africa. 77 Plan of Implementation of the World Summit on Sustainable Development (adopted 4 September 2002, A/CONF.199/20), Art. 20(e). 78 Bruce (n 58) 32. 79 Wilder and Drake (n 50) 370. 80 Bruce (n 58) 15. 81 The Secretary-General’s High-Level Group on Sustainable Energy for All, Sustainable Energy for All: A Global Action Agenda (United Nations, 2012). 82 Abu Dhabi International Renewable Energy Conference (17 January 2013). 83 SE4ALL, ‘Our Mission’, available at <http://www.se4all.org/our-mission> (accessed 4 January 2018). 84 ECT (n 10). 85 (1998) 37 ILM 22. 86 (n 76). 87 Rosemary Lyster and Adrian Bradbrook, Energy Law and the Environment (Cambridge University Press, 2006), 198. 88 Antonio Cassese, International Law (Oxford University Press, 2005), Part III. 89 Anatole Boute, ‘Combating Climate Change through Investment Arbitration’, 35/3 (2012) Fordham International Law Journal, 652–3. 90 See Tim Foxon and Peter Pearson, ‘Overcoming Barriers to Innovation and Diffusion of Cleaner Technologies: Some Features of a Sustainable Innovation Policy Regime’, 16 (2008) Journal of Cleaner Production, S148-61. 91 Ibid, S149. 92 ‘Quo Vadis’ is defined by the Merriam-Webster dictionary as ‘Whither are you going?’, Merriam-Webster, available at <http://www.merriam-webster.com/dictionary/quo%20vadis?> (accessed 6 December 2017). 93 Bradbrook (n 4) 193, defines energy law as the ‘allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between states.’ 94 Heffron and Talus (n 11) 1. 95 Martha Roggenkamp, Catherine Redgwell, Anita Ronne, and Inigo del Guayo (eds), Energy Law in Europe (OUP, 2016; 3rd edn); Raphael Heffron and Gavin Little (eds), Delivering Energy Law and Policy in The EU and The US (Edinburgh University Press, 2016); Angus Johnston and Guy Block, EU Energy Law (Oxford University Press, 2012). 96 Heffron et al. (n 33) 1–15. 97 John Bowman, ‘Lex Petrolea: Sources and Successes of International Petroleum Law’, 39 (2015) Texas State Bar Oil, Gas & Energy Res L Sec Rep, 93, 94. 98 Daintith (n 46) 1. 99 Louis-Alexis Bret and Henry Burnett, Arbitration of International Mining Disputes: Law and Practice (OUP, 2017), Chapter 20. 100 See Lyster and Bradbrook (n 87); Karen Makuch and Ricardo Pereira, Environmental and Energy Law (Wiley Blackwell, 2012); Patricia Park, Energy Law and The Environment (Taylor & Francis, 2013; 2nd edn); Mark Wilde, Civil Liability for Environmental Damage (Wolters Kluwer Law and Business, 2013; 1st edn). 101 Peter Cameron, International Energy Investment Law (Oxford University Press, 2005); Andrea Kramer and Peter Fusaro (eds), Energy and Environmental Project Finance Law and Taxation: New Investment Techniques (Oxford University Press, 2010). 102 Priscilla Schwartz, ‘Sustainable Energy Infrastructure: Law, Policy and Practice’, 4/2 (2009) Journal of International Commercial Law and Technology, 107–16. 103 Barry Barton, Catherine Redgwell, Anita Rønne, and Donald Zillman (eds), Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment (Oxford University Press, 2004), Chapters 2 and 3. 104 The distinction between the work here and a narrower notion such as lex petrolea is that international energy law is clearer in normative content and enforcement. The coherence of ‘International Energy Law’ is akin to widely accepted subjects like ‘Environmental Law’. This view finds favour even in highly critical texts. For example, Terence Daintith argues that ‘Titles such as “Environmental Law” or “Labour Law” are suggestive of a conceptual unity or at least coherence in the relevant legal material sufficient to justify carving out a space in research classifications, in teaching curricula and, ultimately, in the organization of legal practice’. See Daintith (n 46) 7. 105 Heffron et al. (n 33) 1. 106 Ibid, 3-13. 107 See Ottinger et al. (n 14) 2. 108 Kim Talus, EU Energy Law and Policy: a Critical Account (OUP 2013), 3–4. 109 Heffron et al. (n 33) 1. 110 See International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (13 April 2006; Report of the Study Group of the International Law Commission; A/CN.4/L.682), para. 65 ff; Alexandra Wawryk, ‘International Energy Law as an Academic Discipline’, in Paul Babie and Paul Leadbeter (eds), Law as Change: Engaging with the Life and Scholarship of Adrian Bradbrook (University of Adelaide Press, 2014), 223. 111 Adrian Bradbrook, ‘Energy Law: The Neglected Aspect of Environmental Law’, 19 (1993) Melbourne University Law Review, 1. 112 U.N. Charter Art. 1(1) establishes the principle that a key function of the General Assembly is ‘encouraging the progressive development of international law and its codification’. 113 Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds), Comparative International Law (OUP, 2018), 202. 114 Martti Koskenniemi, ‘The Politics of International Law’, 1 (1990) European Journal of International Law, 4, 27. 115 ‘Balancing Our Energy Future’ (2016), <https://ourfuture.energy/post/12/balancing-our-energy-future> (accessed 2 December 2017). 116 Raphael Heffron, Energy Law: An Introduction (Springer, 2015), 3. 117 Ulrich Steger, Sustainable Development and Innovation in the Energy Sector (Springer, 2010), 6. 118 Toorah Jasmab and Rabindra Nepal, ‘Delivering Energy Networks Security: Economics Regulation and Policy’, in Heffron and Little (n 95) 45. 119 Raphael Heffron and Tedd Moya Mose, ‘The Legal Challenges to Building New Energy Infrastructure in the EU’, in Robert Szuchy, Oliver Arpad Homicsko, and Csaki-Hertalovics (eds), KRE Energy Forum (Budapest, Patrocinium Publishing House Ltd, 2017), 104–20. 120 Michael Curley, Finance Policy for Renewable Energy and a Sustainable Environment (CRC Press, 2014), 2. 121 Curley (n 120) xvii explains: ‘When colleagues asked me the working title of the book I was writing, I, of course, told them, “Finance Policy for Renewable Energy and a Sustainable Environment.” Their next question invariably was, “When did you start writing fiction?” Their point is well taken.’ 122 Raphael Heffron, ‘The Global Future of Energy Law’, 7 (2016) International Enforcement Law Reporter, 290. 123 Martin Kaltschmitt, Wolfgang Streicher, and Andreas Wiese, Renewable Energy: Technology, Economics & Environment (Springer-Verlag, 2007). 124 Ørsted, Let’s Create a World Running Entirely an Green Energy (2017), <https://orsted.co.uk/en/About-us/Our-company/Our-name-change> (accessed 19 November 2017). 125 ‘CHP Finance’ (DECC, 2008), available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/345190/Part_5_CHP__Finance.pdf> (accessed 2 November 2017). 126 Curley (n 120) 2. 127 Roy Goode et al., Transnational Commercial Law: International Instruments and Commentary (Oxford University Press 2015; 2nd edn), Chapter 22. 128 Barbara Koremenos et al., ‘The Rational Design of International Institutions’, 55 (2001) International Organisation, 761, 766-8. 129 Nicola Labanca, ‘Energy and Complex Systems Dynamics’, in Nicola Labanca (ed), Complex Systems and Social Practices in Energy Transitions Framing Energy Sustainability in the Time of Renewables (Springer, 2017), 46. The author further argues that the degree of flexibility required by complex societies cannot be achieved exclusively through top-down administration. 130 European Commission, One Trillion Euro to Invest in Europe’s Future: the EU’s Budget Framework 2014-2020 (19 November 2013; press release), <http://europa.eu/rapid/press-release_IP-13-1096_en.htm> (accessed 18 January 2017). 131 See Bloomberg, Mapping the Gap: The Road from Paris (Finance Paths to a Two-Degree Future) (Bloomberg New Energy Finance, 2016). World Energy Council, World Energy Trilemma: Priority Actions on Climate Change and How to Balance the Trilemma (Oliver Wyman, 2015), <http://www.oliverwyman.com/content/dam/oliver-wyman/v2/publications/2017/may/The_World_Energy_Trilemma.pdf> (accessed 12 February 2018), 14 asserts: ‘Germany’s energy transition may require as much as US$469bn by 2033, if not more.’ Also, US $208 billion in investment in low-carbon energy sources will be needed annually over the next 25 years. 132 Curley (n 120) 28, 204. 133 Barton et al. (n 103) 7–8. 134 International Monetary Fund, World Economic Outlook, Commodity Special Feature (April 2016), <https://www.imf.org/external/pubs/ft/weo/2016/01/pdf/SF_Commod.pdf> (accessed 19 November 2017). 135 Ian Smart, ‘Energy and The Public Good’, 36/2 (1981) International Journal, 255–72. 136 Adrian Bradbrook and Judith Gardam, ‘Placing Access to Energy Services within a Human Rights Framework’, 28 (2006) Human Rights Quarterly, 389. 137 Euratom Supply Agency, Report on Nuclear Fuel Security of Supply (June 2015; Advisory Committee WG Report), available at <http://ec.europa.eu/euratom/docs/2015-ESA-MEP-rapport-web.pdf> (accessed 9 December 2017), 25. 138 Noah Rubins and Stephen Kinsella, International Investment, Political Risk and Dispute Resolution (Oceana Publications, 2005), 153. 139 Dinos Kerigan-Kyrou, ‘Critical Energy Infrastructure: Operators, NATO, and Facing Future Challenges’, 12/3 (2013; English edition) Connections: The Quarterly Journal, 109. 140 Donatella Della Porta, ‘Social Movements and Civil Society: How Emerging Social Conflicts Challenge Social Science Approaches’, in Stefano Fella and Carlo Ruzza (eds), Anti-Racist Movements in the EU (Palgrave Macmillan, 2010), 51–68. 141 Daniel Hemel and Lisa Ouellette, ‘Knowledge Goods and Nation-States’, 101 (2016) Minnesota Law Review, 167. 142 Nicola Swayne, ‘Coal Seam Gas Exploration and Production in Australia: Adaptive Environmental Management and Other Legal Responses’, 22/3 (2014) Environmental Liability, Law Practice and Policy, 72. 143 Dieter Helm, ‘Government Failure, Rent-seeking, and Capture: The Design of Climate Change Policy’, 26/2 (2010) Oxford Review of Economic Policy, 182–96. 144 Merrill Jones Barradale, ‘Impact of Public Policy Uncertainty on Renewable Energy Investment: Wind Power and the Production Tax Credit’, 38 (2010) Energy Policy, 7698–709. 145 Robert Keohane and Lisa Martin, ‘The Promise of Institutionalist Theory’, 20/1 (1995) International Security, 39. 146 George Hoffman and Leslie Dienes, The European Energy Challenge: East and West (Duke University Press, 1985), 50. 147 Ruven Fleming, Shale Gas, the Environment and Energy Security (Edward Elgar, 2017), 180. 148 Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002), 310. 149 Nicholas Stern (World Bank chief economist) in The Stern Review: Report on the Economics of Climate Change (London, 2006; Cabinet Office – HM Treasury). 150 Lyster and Bradbrook (n 87) 198. 151 Adam Vaughan, ‘Seven Climate Records Set So Far in 2016’, (17 June 2016) The Guardian, available at <https://www.theguardian.com/environment/2016/jun/17/seven-climate-records-set-so-far-in-2016> (accessed 4 November 2017). 152 International Energy Agency, World Energy Outlook Special Report 2015: Energy and Climate Change, (2015), available at <https://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEnergyandClimateChange.pdf> (accessed 30 November 2017). 153 Amory Lovins, Soft Energy Paths: Toward a Durable Peace (Ballinger, 1977) proposed (in the height of oil and gas dominance) that renewable energy would soon dominate a ‘soft energy path’. 154 UK’s Special Representative for Climate Change. In a lecture titled, ‘Paris Agreement on Climate Change, What Next?’, delivered on 12 January 2015 during the Clifford Chance Annual Lecture and organised by the Energy and Natural Resources Institute, Queen Mary University of London. 155 Lovins (n 153) 55. 156 International Energy Agency, Recent Trends in the OECD: Energy and CO2 Emissions (2016), available at <http://www.iea.org/media/statistics/Recent_Trends_in_the_OECD.pdf> (accessed 30 November 2017). 157 Julian Borger, ‘Trump Drops Climate Change from US National Security Strategy’, (19 December 2017) The Guardian, available at <https://www.theguardian.com/us-news/2017/dec/18/trump-drop-climate-change-national-security-strategy> (accessed 21 December 2017). 158 United Nations, Statute of the International Court of Justice (18 April 1946), available at <http://www.icj-cij.org/en/statute> (accessed 5 January 2018), Art. 38(1). 159 Jan Klabbers, The Concept of Treaties in International Law (Martinus Nijhoff Publishers, 1996), 57–164. 160 Gennady Danilenko, Law-making in the International Community (Springer, 1993), 20. 161 Malcolm Shaw, International Law (Cambridge University Press 2008; 6th edn), 66. 162 John Kirton and Michael Trebilcock (eds.), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (Ashgate, 2004), 9. 163 European Parliament Resolution of 4 September 2007 on Institutional and Legal Implications of the Use of ‘Soft Law’ Instruments (2007/2028(INI)). 164 Ibid preamble, para A. 165 European Parliament Resolution (n 163) para 1. 166 Dinah Shelton, ‘Law, Non-law and the Problem of Soft Law’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (OUP, 2000), 2. 167 Ibid, 5. 168 Geoffrey Palmer, ‘New Ways to Make International Environmental Law’, 86 (1992) American Journal of International Law, 259, 274. 169 David Hunter, James Salzman, and Durwood Zaelke, International Environmental Law and Policy (Foundation Press, 2011; 4th edn), 348 discuss the US interpretive statement of Principle 7 of the Rio Declaration on the common but differentiated responsibility principle. The US conditionally accepted the principle if it did not mean that the US was culpable for past environmental harm. 170Legality of the Threat or Use of Nuclear Weapons (n 35). 171Commission v Bulgaria (Ministerial Council of the ENC): Decision C-198/12 of 5th June 2014 used this phrase at paragraph 15 of the Findings of the Court, citing Case C-191/95 Commission v Germany and Case C-167/12 Commission v Spain. 172 See EU energy law reports for other cases with similar phraseology in Helmut Schmitt von Sydow, EU Energy Legislation & Case Law Handbook 2014 (Claeys & Casteels Publishers, 2014). 173 Steve Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’, 18 (1996–97) Michigan Journal of International Law, 183. 174 Dinah Shelton, ‘Commentary and Conclusions’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press, 2000), 449-50: ‘[soft law instruments are] normative texts not adopted in treaty form that are addressed to the international community as a whole’. 175 Richard Baxter, ‘International Law in “Her Infinite Variety”’, 29/4 (1980) International and Comparative Law Quarterly, 549–66. 176 See the annex to the agreed text of the International Energy Charter, <https://energycharter.org/fileadmin/DocumentsMedia/Legal/IEC_EN.pdf> (accessed 18 December 2017). 177 In the Legality of the Threat or Use of Nuclear Weapons (n 35), the ICJ affirmed that the resolutions of the UN General Assembly have a high probative value in establishing the existence of a rule or the emergence of an opinion juris. 178 Klabbers (n 61). 179 Catherine Redgwell, ‘International Soft Law and Globalization’, in Barry Barton et al. (eds), Regulating Energy and Natural Resources (Oxford University Press, 2006), 89, 98–9. 180 See Yale Global Justice Program, <https://www.socialeurope.eu/wp-content/uploads/2015/10/OP8-final.pdf> (accessed 12 February 2018). See also the contribution by Jaap Spier to this special issue. 181 See, Expert Group on Climate Obligations of Enterprises, Principles on Climate Obligations of Enterprises, (Eleven International Publishing, 2018). 182 Gianna Bern, Investing in Energy: A Primer on the Economics of the Energy Industry (Bloomberg Press, 2011) 7. 183 Lyster and Bradbrook (n 87) 199. 184 Bruce (n 58) 31. 185 Andrew Guzman and Timothy Meyer, ‘International Soft Law’, 2 (2010) Journal of Legal Analysis, 171. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. 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Toward a harmonized framework for international regulation of renewable energy

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Unidroit - The International Institute for the Unification of Private Law
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© The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com
ISSN
1124-3694
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2050-9065
D.O.I.
10.1093/ulr/uny016
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Abstract

Abstract This article explores ways in which there may be some coherence in the international framework for renewable energy. It proposes harmonization of this legal framework in both doctrinal and functional terms. Conceptually, renewable energy law should be founded on an overarching international energy law, which is a more authoritative concept of international law. In operative terms, various pathways could create bespoke rules or principles for the renewable energy industry. This article attempts to demonstrate how these collaborative pathways could work by suggesting that it may not be necessary to create a distinct international renewable energy law (lex renewabilia). What may work is: (i) an overarching international energy law that combines both normative and functional elements and (ii) a good matrix to assess the operative issues and prospects that the law would need to balance in the promotion of renewable energy. The energy trilemma would be this model: (iii) a more prominent role of soft law in a harmonized renewable energy framework. Soft law could have a teleological value in interpreting hard law and build broad consensus among diverse stakeholders in developing specific operative guidelines on renewable energy. This would contribute to an adaptable international framework that is as dynamic as the renewable energy sector itself. It is envisioned that these approaches may holistically deal with the peculiar challenges and opportunities for renewable energy in the transition to more sustainable global energy systems. I. Introduction Generally, international law is fragmented and cyclical.1 The decentralized approach to international law is seen through the development of its rules by several entities in different areas with little coordination.2 The international interaction between law and energy evolved around the petroleum industry, which has generated much debate for more than a century.3 As discussed in section II.2 below, little consensus has been reached in establishing a globally recognized international petroleum law. This disconnect between the various legal and institutional frameworks governing energy systems adversely affects the development of renewable energy because the emerging framework for regulating renewable energy resources is also disjointed. Nevertheless, efforts to harmonize and define an overarching international energy law have been made in the last few years. In conceptual terms, international energy law has been discussed as a distinct academic discipline for at least two decades.4 In practice, international energy law is one of the more prestigious areas for law firms.5 Governments also have dedicated energy laws, ministries, and regulators. Moreover, private financial products dominate renewable energy projects.6 Furthermore, there is a marked increase in international disputes attributed to renewable energy.7 This article focuses on the promotion of renewable energy through the development of international energy law. Three complementary paths are suggested. The first advocates for the advancement of international energy law (as a distinct discipline) to govern all energy resources. The second uses the energy trilemma as a prism for developing a framework for renewable energy law. The third seeks to elevate emerging international renewable energy law principles and practices (soft law) into mainstream international law frameworks. The article is structured as follows. Section II provides an overview of legal developments in renewable energy, which includes an account of historical issues in the transnational governance of energy resources. Permanent sovereignty over natural resources (and renewable energy resources) as well as the appearance of a lex petrolea are dealt with. Section III sets out a summary of the fragmented international legal framework for renewable energy. It consists of two parts with (i) three examples of hard law instruments of international renewable energy governance: the Statute of the International Renewable Energy Agency (IRENA Statute);8 the United Nations Framework Convention on Climate Change (UNFCCC);9 and the Energy Charter Treaty (ECT)10 and (ii) some soft law mechanisms of renewable energy governance, namely: the International Energy Charter; the Rio Declaration on Environment and Development; the Johannesburg Declaration; and the Sustainable Energy for All Initiative. Section IV proposes three pathways for the development of an international renewable energy regulation framework. This introduction concludes with a few notes on terminology. Although definitions and distinctions are useful in conceptualizing energy law, they disguise the reality that energy law is probably one of the more complex areas of law.11 From this complexity has emerged ‘the energy trilemma’, which was formulated by the World Energy Council12 and is a summation of the most common and pressing global energy challenges to the law today. The definition of the energy trilemma has many variations, but they all have three fundamental challenges: those emanating from economics (affordability), politics (energy security or security of energy supply), and the environment (including climate change and sustainability).13 Whereas fossil fuels are those that are depletable and release carbon dioxide emissions to the atmosphere, sustainable energy resources are associated with energy produced and used in ways that support human development over the long term in all of its social, economic, and environmental dimensions.14 This definition may include other low-carbon sources of energy like nuclear power.15 Renewable energy, on the other hand, refers only to primary energies that are regarded as inexhaustible in terms of human (time) dimensions.16 These energies form the focus of this article and are solar, geothermal, wind, tidal, and (in some cases) hydropower. II. Developments in the wake of renewable energy: the debate on sovereignty over natural resources and the lex petrolea 1. Sovereignty over natural resources This part commences with an account of issues that have dominated international transactions over fossil fuels located in developing countries, which was a precursor to the current debate on renewable energy resources. The technological nous to extract these reserves was in the hands of multinational corporations founded in developed States. As events unfolded, neither of these parties would enjoy these resources without a symbiotic legal arrangement between States and private parties. In the period between 1945 and 1980, attempts to balance the conflicting interests between developing nations and transnational corporations led to the emergence of some form of transnational commercial energy law. The United Nations (UN) system brought to the fore the gulf in philosophical and functional differences between developed States and developing ones over natural resources. This led to a global recalibration of the economic relations between developed and developing countries.17 The formation of the UN, the creation of the Organization of the Petroleum Exporting Countries in 1960, and the emergence of post-colonial States created a unified call for fairer redistribution of natural wealth.18 With these calls came the assertion of sovereignty, which has been sensationally described as ‘the most glittering and controversial notion in the history, doctrine and practice of international law’.19 The UN General Assembly first used the phrase ‘permanent sovereignty over natural resources’ in 1952.20 Ten years later, nationalization of foreign assets was allowed but only if appropriate compensation was given to the investor and where the seizure was for public purposes, security, or the national interest.21 In 1974, developing nations introduced radical changes to the legal principles of nationalization.22 The most significant was the Charter of Economic Rights and Duties of States.23 This Charter confirmed that States may seize and nationalize foreign investments provided that they give ‘appropriate compensation’ in good faith. Moreover, unless there was an agreement for an alternative forum, any resultant dispute was subject only to the State’s domestic law.24 A contrary view was taken by a number of developed States,25 which contested the UN Declaration on the Establishment of a New International Economic Order in the 1970s. Presently, some principles such as sovereignty and protection of the environment, have become accepted principles of the international order.26 Permanent sovereignty over natural resources has generated incredible controversy in the energy sector. Issues such as political risk, expropriation, fair and equitable treatment of foreign investors, and compensation for wrongful or unfair action have been the subject of both academic debate and international disputes.27 These contests demonstrate that sovereignty over natural resources evolved from a mere political declaration to a fundamental tenet of international law with serious implications on energy investment. The evolution of permanent sovereignty over natural resources in the energy industry reflects broader trends in the development of international law, such as the evolving role of soft law in energy governance (discussed in section IV.3 below) and the influence over national law.28 An example is the Supreme Court of the United States acknowledging that there are few issues in international law today on which ‘opinion seems to be so divided as the limitations on a State’s power to expropriate the property of aliens’.29 Although some object to territory-based jurisdictional schemes for onshore renewable energies,30 the State could stake a claim based on the territorial dimension of sovereignty.31 Thus, geothermal and hydroelectric power would fall in this category because generation capacity is tied to the land. However, could a State successfully claim permanent sovereignty over the flow of wind over their territory or rays of sun? There are conflicting views: some deem solar energy as res communis—for the enjoyment of all. Others view it as part of the benefits derived from the use of the natural environment, over which a State exercises sovereignty. The UN resolutions on permanent sovereignty outlined above use the expression ‘energy resources’ vaguely. This might be problematic to interpreting modern treaties like the ECT when dealing with renewable energy technologies, which rely on natural elements.32 This ambiguity has been a long-standing problem even at the national level, where courts have criticized domestic laws for lacking specific provisions that grant access to the sun’s rays.33 This uncertainty is settled, to some extent, by modern international instruments (some of which are highlighted in section III.3.B below) that expressly affirm State sovereignty over natural resources,34 This principle is now customary international law35 and also forms the basis for State responsibility not to cause environmental damage.36 This article acknowledges the importance of sovereignty but suggests that its rigid interpretation may hinder the development of renewable energy. An unyielding insistence on State control over natural resources is archaic because the geo-political and economic realities in the energy sector have moved towards cooperation.37 Also, sovereignty often directly resides in the people who then have a much higher stake in energy development than the State machinery.38 Moreover, renewable energy assets do not necessarily have an obvious connection with any particular territory, situs, or State law, which makes an inflexible application of State sovereignty a hindrance to transnational deployment of renewable energies.39 These issues inspire the proposed international energy law framework (in section IV below). 2. From lex petrolea to lex renewabilia? The idea of a special transnational law applicable to the energy industry presents complex challenges. Lex petrolea40 and lex mercatoria41 dynamics have troubled scholars for decades. Lex petrolea was formally introduced to the lexicon of international law debate through the famous Aminoil and Kuwait petroleum exploration dispute.42Lex petrolea attempts to typify what a transnational energy law community is. The controversial piece by Alfredo de Jesús gave a summation as follows: What better representation of a worldwide agreement than the recognition of the existence of the lex petrolea: a spontaneous and transnational legal order created by the players of the worldwide oil and gas industry (transnational petroleum society/Societas Petroleatorum), functioning under the belief that the sharing of the common purpose of making petroleum exploration and production possible and profitable unites them with a special bond (transnational petroleum solidarism), that encourages the creation of rules specially designed not only to govern their contracts (transnational petroleum contracts) but also to serve the needs and interests of the transnational petroleum society?43 This definition, though not always precise, is summed up as the principles in published arbitral awards relating to the oil industry, which have created a customary law comprising legal rules adapted to the industry’s nature and specificities.44 Some argue that lex petrolea demonstrates the pluralistic nature of international law, which consists of overlapping regulatory regimes administered by various States and non-State actors.45 This position is opposed. The very existence of lex petrolea as a legal order is challenged because: (i) different jurisdictions apply oil and gas law with varying approaches, which makes it a branch of national (and not international) law;46 (ii) the content of lex petrolea is derived from analyses of various arbitral awards that are limited in scope both in subject matter and parties (great emphasis is on disputes between a State and a company or on expropriation);47 (iii) there is a lack of normative specificity on the common rules and principles that are peculiar to the oil industry that would apply universally (even from an analysis of decided cases);48 and (iv) the identifiable common provisions in international petroleum contracts do not form rules but, rather, identify prudent practices.49 However, as highlighted in the preceding paragraph, the idea of many energy laws for each energy source is problematic. An alternative framework for international renewable energy law is proposed here. It would be one that encompasses various doctrinal and practical pathways (as well as soft law and hard law mechanisms). As is discussed in section IV below, this approach would offer a more comprehensive doctrinal and regulatory basis than a separate lex renewabilia (fashioned along the lines of lex petrolea). Founded on an overarching international energy law framework, the practical specificities of each energy source would be best addressed through bespoke rules and principles, which could progressively be formulated though soft law. III. The international legal framework for renewable energy 1. Fragmented international regulatory mechanisms for renewable energy Although international law on renewable energy has the potential to flourish, its ability to have rapid universal application faces a major challenge—that is, the need to establish a cohesive regulatory framework. Strictly speaking, there is no specific treaty dedicated to the international governance of renewable energy. The international legal framework for renewable energy consists of a mixture of legally binding obligations and other instruments that have contributed to the development of global energy law and policy.50 This section cites some of the major instruments and institutions that are associated with the governance of international renewable energy. The framework outlined below is by no means an exhaustive list. There are other more comprehensive works that analyse international sources and institutions of renewable energy law.51 Also, there are diverse principles in other disciplines that touch on renewable energy that are not highlighted here. For example, it is acknowledged that the trade aspects of renewable energy outlined in the General Agreement on Tariffs and Trade, the WTO Agreement on Trade-Related Investment Measures, and the general WTO principles governing international trade are applicable in renewable energy commerce.52 This part is divided into two subsections. Subsection III.2 cites three examples of hard law sources of international renewable energy law, while subsection III.3 outlines four soft law frameworks that deal with renewable energy. These examples demonstrate the dispersed nature of the sources of international renewable energy law and policy. This then sets the scene for the discussion of some proposals on harmonization of international energy law for renewable power. In broad terms, ‘hard law’ refers to legally binding international obligations as contained in treaties.53 Soft law here refers to ‘any international instrument (other than a treaty) containing principles, norms, standards, or other statements of expected behaviour’.54 It includes declarations (on treaty norms) by institutions established by a treaty.55 The classification (of hard and soft law sources) is not made to merely demonstrate that there is a distinction between the two but, rather, to propose that a more holistic approach that harmonizes principles from diverse sources is essential for a more efficacious renewable energy framework. 2. Examples of hard law instruments of international renewable energy governance This section outlines three major international instruments that are relevant to renewable energy regulation: IRENA Statute; the UNFCCC; and the ECT. A. IRENA Statute The IRENA Statute was established, inter alia, to promote the sustainable use of renewable energy.56 Strictly speaking, the Statute is the only international instrument tailored to exclusively promote renewable energy.57 The Statute creates an international organization (IRENA) with a large membership of States. IRENA is a strategic ‘renewables hub’ for multilateral action and international cooperation on renewable energy finance, technology, and knowledge.58 A significant step made by IRENA is its broad consultative engagement of all energy stakeholders (including the private sector) to deliver scalable renewable energy systems.59 Despite its favourable standing in global renewable energy regulation, the statute appears to defer to State sovereignty and national priorities, which is a major drawback.60 Although the IRENA Statute is a hard law instrument, IRENA itself may be considered a ‘soft organization’.61 This limitation lends credence to the proposal that an all-encompassing approach to a renewable energy framework (of both hard and soft law) would have a greater impact than the traditional treaty focus. B. UNFCCC The preamble of the UNFCCC was the first multilateral treaty to declare that anthropogenic greenhouse gas emissions cause global warming. No express provision in the UNFCCC touches on renewable energy. However, the upsurge of interest in renewable energy is closely linked to climate change law and the role of States in mitigating adverse effects of climate change. The most significant outcome of the UNFCCC is its twenty-first Conference of the Parties (COP 21), which was attended by 195 States and resulted in the Paris Agreement,62 a statement of intent to cut down global fossil fuel use. The preambular paragraphs of the Paris Agreement mention the promotion of universal access to sustainable energy ‘through the enhanced deployment of renewable energy’.63 This has led to ‘significant public and political support for the steps needed to monitor and enforce the transition to a lower carbon economy’.64 C. ECT The ECT started as a regional multilateral treaty with the aim of regulating energy markets in Europe.65 Its membership, upon promulgation in 1988, consisted of exclusively Eurasian countries but has since expanded to include not only observer States but also international organizations. Its regional connotation has perhaps hampered its further growth beyond the EU and the Organization for Economic Co-operation and Development (OECD). Nonetheless, it is arguably the most comprehensive international instrument on international energy law.66 With respect to renewable energy, the ECT fails to make any direct textual provision for promotion of renewable power. Nevertheless, it contains extensive provisions on investor protection, preserves the sanctity of investment contracts, and establishes a robust energy dispute resolution mechanism.67 Its application to renewable energy is given excellent treatment by Stuart Bruce, who argues that renewable energy obligations can only be extrapolated from two treaty sections: the one on ‘Economic Activity in the Energy Sector’ and the other on ‘Environmental Aspects’.68 This article proposes that the ECT (though not expressly addressing renewable energy) could be integral in establishing an overarching framework for international energy law discussed in section IV below. 3. Some soft law mechanisms of renewable energy governance There are numerous sources of international law and their constitutive instruments. The recognition of what denotes ‘soft law’ can be abstruse, especially when certain legislative international bodies are considered ‘soft organizations’.69 However, soft law instruments are not necessarily non-binding or without legal effect. This section summarizes four major international initiatives that, while not specifically tailored to the renewable energy sector, are relevant to renewable energy regulation: the International Energy Charter; the Rio Declaration on Environment and Development; the Johannesburg Declaration; and the Sustainable Energy for All Initiative. A. The International Energy Charter The International Energy Charter is a declaration of the political intention to strengthen energy cooperation between its signatory States.70 It expressly declares that it does not bear any legally binding obligation or financial commitment but maps out common principles for international cooperation in the field of energy. The Charter addresses renewable energy in its objectives and calls for action on: energy efficiency and environmental protection; cooperation; and education and training.71 The signatories undertake to enter into specific agreements for the development of renewable energy sources.72 B. The Rio Declaration on Environment and Development The Rio Declaration forms part of the renewable energy framework through Agenda 21,73 an instrument developed at the 1992 Rio Conference.74 The Rio Declaration links long-term economic progress with environmental protection. Its relevance to this discourse is the provision that specifically encourages States to create new international partnerships with diverse stakeholders to adopt and transfer expertise and technologies on renewable sources and systems.75 C. The Johannesburg Declaration This Declaration was made under the auspices of the World Summit on Sustainable Development in Johannesburg in 200276 and included a Plan of Implementation.77 It is lauded for containing the most extensive provisions supporting technology transfer and the development, implementation, and commercialization of renewable energy.78 Moreover, the Declaration aggregates issues related to global renewable energy such as energy security, climate change, economic growth, and sustainable development for the first time.79 The Declaration and its Johannesburg Plan of Implementation are recognized as the most extensive soft law instruments in not only supporting renewable energy development but also in the international promotion of domestic energy policy.80 This is especially relevant to the proposals in the next chapter on forging a harmonized international energy law regime for renewable energy. D. The Sustainable Energy for All Initiative (SE4ALL) In 2012, the SE4ALL recognised energy as a key driver for sustainable development.81 It focuses on the cooperation and collaboration of States, international organizations, the private sector, and civil society, inter alia, for doubling the share of renewable energy in the global energy mix to 33 per cent by 2030. One of its core objectives is to create supportive mechanisms to overcome the barriers to any practical implementation of sustainable energy. One of the greatest outcomes of the SE4ALL was the target set to double renewable energy capacity by the year 2030,82 a challenge taken up by IRENA.83 There has been criticism that some of the leading international law instruments highlighted above are unsatisfactory. The provisions in the ECT and its Protocol on Energy Efficiency and Other Related Matters,84 the Kyoto Protocol to the United Nations Convention on Climate Change,85 and the Johannesburg Declaration on Sustainable Development86 have been termed as ‘simply miscellaneous’.87 Furthermore, international energy law operates in a context where there is no international legislator.88 There is a need to harmonize and restructure the existing regulatory framework to assure all parties that dispute resolution forums will not take adverse interpretive approaches to low-carbon investment.89 IV. Towards the development of a harmonized international framework for renewable energy This section proposes a combination of three pathways to harmonize the framework for renewable energy law. First, it promotes international energy law as the foundation upon which renewable energy laws should be promulgated because international energy law is more universally accepted (than renewable energy law). It has also gained more credibility as an overarching legal framework. Second, the energy trilemma is proposed as a substantive and methodological prism for designing a renewable energy framework. The energy trilemma forms a good basis for identifying and assessing specific global challenges (political, economic, and environmental). Each challenge may then be dealt with based on distinct analyses of problems, types of policy instrument, and rationales for law and policy intervention.90 Third, the mainstreaming of soft law principles on renewable energy would ensure that legal development in this important field meets the dynamic needs of global energy markets. This may transform academic insights on soft law into practical tools for policy-makers.91 1. The pursuit of an overarching international energy law: Quo vadis?92 Energy law takes many definitions and has a web of parties and players.93 Some academics have argued that when energy law is defined from a functional perspective—that of regulating the exploitation of energy resources—it no longer is ‘energy law’ but, rather, many ‘energy laws’, one for each type of energy carrier.94 Many of the leading texts also focus on regional energy laws and not one global framework.95 The problem of standardizing a definition for energy law, suggesting a theoretical framework, or advancing guiding principles is not a new one.96 A long-standing example is the discourse on lex petrolea and lex mercatoria (discussed in section II.1). More recent debates suggest that lex petrolea exists to a limited degree today.97 Other more critical assessments dispense with the idea altogether, arguing that it is ‘inappropriate, is at best unhelpful and at worst pernicious, and would be best abandoned’.98 Recently, it has been suggested that there is an emerging lex mineralia, which demonstrates the attempt to elevate sub-disciplines of energy and natural resources law to stand alone legal regimes.99 It is no wonder, therefore, that various aspects of international energy law attract substantial scholarly interest. For example, academics have made contributions in areas such as international energy and the environment.100 Others have examined international energy investment law101 with discourse on international energy infrastructure102 gaining traction.103 The proposal here is different. One fundamental question is whether international energy law operates within a global energy system or as a web of energy systems that create one industry. It is suggested that international energy law is a distinct overarching discipline with many sources, facets, and systems. This article does not place separate emphasis on the law that applies to each energy source but, rather, advocates for universal application of international energy law, which has more certainty and global acceptance as a legal concept.104 It endorses one ‘international energy law’ on which sub-disciplines like renewable energy law may be anchored. Conceptually, a recent review of international energy law excellently evaluates its normative basis.105 This treatise refers to numerous sources that have contributed to the modern understanding of international energy law. This understanding relies on principles of environmental law, climate change law, and energy law to call for the transition to cleaner energy sources. This resonates with the theme here. Its co-author (Adrian Bradbrook) was the academic who last made a comprehensive review of a single international energy law over 20 years ago.106 Although it is not suggested that the definition of international energy law is obvious, this article proceeds on the basis that the development of international energy law is self-evident.107 This presumption is based on various factors: international energy law has now gained mainstream recognition.108 It is flourishing in legal practice.109 Moreover, it finds support in the lex specialis/lex generalis dynamic: that a more specific rule (international energy law here) regulates a matter more effectively than a general rule (international law or general principles from other disciplines).110 This foundation—that the existence of international energy law itself is not an area of dispute for the purposes of this article—allows this section to assess a fundamental question. That is, how do we enhance the development of renewable energies through international energy law? Promoting an overarching international energy law facilitates the discussion on renewable energy in a more suitable context than that of climate change or environmental law. This is a departure from earlier texts, which had hamstrung international energy law by classifying it as a subtext of environmental law.111 Practically, implementing international energy law though traditional mechanisms like the UN system, through the International Court of Justice’s advisory opinion process or in a resolution of the UN General Assembly,112 can be quite onerous.113 The process requires massive consensus and involves bureaucratic manoeuvres between nation-states. Also, it is not necessarily effective in encouraging renewable energy investment as only States are represented at the UN General Assembly, yet the energy industry has other key (non-State) stakeholders. Moreover, rules from formal dispute resolution forums like the ICJ may produce somewhat ambiguous pronouncements on the character of unwritten rules of law.114 Such considerations further suggest that the challenges of international development of renewable energy are best addressed through harmonized international energy law; measured regulation by using the energy trilemma as a prism; and giving greater credence to soft law in renewable energy regulation. 2. The energy trilemma as a prism for developing a renewable energy framework In order to resolve the energy trilemma, the ideal energy source would have to be affordable, clean, and ubiquitous. Presently, however, such resources do not exist.115 Renewable energies are the cleanest available resources, but they do not yet fully satisfy the affordability and availability test. This is a global concern because the renewable energy sector consists of an intricate web of parties (governments, international organizations, multinational enterprises, non-State actors, lending consortia, private parties, and culturally disparate societies). This article advocates for a harmonized international energy law and policy to be at the core of generating solutions to global energy systems.116 However, this would need co-ordinated ‘legislation, action and responsibility’ in individual regions.117 In order to operationalize the main framework of international energy law proposed above, each of the three elements of the energy trilemma must be taken into account. A. Renewable energy and economics The energy sector is not exempt from the factors that influence investment choices like: costs, benefits, revenue, profit, and availability of finance. However, energy networks are peculiar. They are usually natural monopolies because energy installations are excessively expensive.118 Energy stakeholders, especially utility owners, focus on maximizing profit from aged facilities without having to make massive capital outlays on new ones.119 Conversely, environmental finance focuses on producing the greatest environmental benefit for the largest number of people at the lowest possible cost.120 This dichotomy between profit and environmental benefit operates in a context where there is no overarching finance policy for renewable energy. Likewise, there is no finance policy for a sustainable environment.121 This is a major global challenge for energy law, which should aim at incentivizing new low-carbon energy infrastructure.122 It is argued that the challenge in making the renewable energy revolution a reality is no longer a technological one.123 It is regulatory. Anecdotal evidence suggests that the shift of the Danish Oil and Gas Company into a renewable energy company means that, with legal support, the transition to renewable energy can be commercially viable.124 Renewable energy development and international law intersect for several reasons. Enormous capital outlay and long-term activities are required in energy development.125 Therefore, without international frameworks that regulate and manage the financing of renewable energy, it is unlikely to have development of renewable energy. If financing regimes operate within traditional models and remain largely profit driven, the transition to renewable energy will be hampered. Some assert that energy finance is dominated by traditional project finance methodologies (debt and equity), which do not always address the peculiar aspects of energy investment such as minimizing environmental costs. Unlike other ventures, the lowest cost, not maximum return, is the goal of sustainable investment.126 Nevertheless, effective investment risk-reduction in renewable energy is still dependent on implementation and compliance with transnational commercial law instruments.127 These instruments, in turn, rely on international organizations, which play a crucial role in transnational renewable energy investment.128 To spur rapid development of renewable energy, a paradigm shift is needed from the policies currently dominating energy markets.129 There should be greater focus on a holistic assessment of the costs of each energy source than on profit. The EU announced that it will deploy €5.9 billion for upgrading dated energy infrastructure, intended for singular markets and tailored for fossil fuels.130 Private enterprises would either be unable or unwilling to spend such a huge capital outlay on renewable energy installations. Financial resources are there, and the challenge to appropriately spend these finances is urgent.131 The energy mix will have more sustainable energy when law and policy solutions integrate the true cost of fossil fuels, which will make them more expensive, while making renewable energy less expensive.132 The untenable alternative would be to hope that the cost of renewable energy declines contemporaneously with the market willingly adopting cleaner energy. B. Renewable energy, energy security, and geopolitics There is increasing recognition of the importance of new energy projects to energy security.133 The critical socio-economic importance of energy makes it a special commodity134 and a public good for which a special right arises.135 Some argue that specific human rights norms should apply to the energy industry.136 This prominence of energy to daily life draws special political attention at local, national, and international levels. Apprehension over security of supply is now considered a global phenomenon.137 The development of customary international law on energy is politically motivated,138 and energy security is classified as the foremost energy infrastructure challenge to the North Atlantic Treaty Organization.139 Therefore, the role of politics in consensus building affects the formulation and implementation of renewable energy regulations. Also, environmental activism (which favours renewable energy) has generally been characterized by political anti-establishment sentiment led by non-State actors.140 Energy is integral to societal development, which makes it the focus of national and global politics. States can be rational actors that seek to maximize the welfare of their citizens.141 However, there may be conflicting (energy) interests between States and a variance in their regulatory approaches.142 This may create institutional inertia143 and public policy uncertainty, which deter private investment in renewable energy.144 Enabling international energy law frameworks may encourage States to be ‘rational egoists’ that cooperate for mutually beneficial endeavours (rather than pursuers of selfish national interest).145 An example is the progressive joint implementation of large-scale energy projects facilitated by harmonized policies between East and West Europe at the height of political and diplomatic aggression in post-1945 Europe.146 This demonstrates that the right international legal framework can enhance the status of sustainable energy policy to constitutional objectives in national legislative processes.147 These objectives then oblige the State to align State resources with those aims.148 C. The wind of change: renewable energy and the environment Climate change is a common global conundrum that has been described as the greatest energy-related externality of all time,149 yet the international law framework for sustainable energy development remains inadequate.150 In 2016, at least seven unprecedented climate conditions occurred: consecutive hottest months; hottest day in India in recorded history; hottest autumn ever recorded in Australia and highest amount of destruction in Australia’s Great Barrier Reef; highest temperature in Alaska; the maximum extent of recorded melting of Arctic ice; and the highest annual increase in global carbon dioxide emissions.151 Therefore, though there are regional variances, there is a definite common global need for more sustainable energy sources. Fossil fuels are depletable, exorbitant to extract, and a major contributor to adverse effects of anthropogenic climate change.152 These are good reasons for international action against climate change, divesting from fossil fuels, and increasing renewables in the global energy mix. The idea that renewable energy should be globally dominant for more sustainable energy systems is not a new one.153 Despite facing numerous false starts, recent international legal developments give a more positive outlook for the deployment of renewable energy on a global scale (see section III). The conclusion of the Paris Agreement, in particular, was the cause of great optimism to Sir David King.154 He also postulated that the universal endorsement of the agreement was unprecedented in modern times and will lead to more sustainable energy systems. This change is beginning to manifest. China, the greatest coal consumer in recent history, publicized plans to cap coal consumption by 2020.155 This announcement was followed by action, including a massive roll-out of renewable energy projects, making China a global leader in renewable energy uptake as of November 2017. In contrast—and this highlights the importance of politics in the energy sector—the Trump administration in the USA threatens to hamper the gains that were made by the Paris Agreement. The USA, despite being the largest carbon dioxide emitter from the OECD,156 has downgraded climate change from the national list of global threats in its national security strategy.157 These examples highlight the reality that environmental or climate change policy alone would not lead to the energy transition. More is needed to address environmental challenges through harmonized policy regimes that recognize the myriad trade-offs in transnational energy systems. The energy trilemma is a good matrix for this. 3. Mainstreaming of soft law principles in international renewable energy regulation The very existence of soft law is contentious. Traditional sources of international law, summarized by the Statute of the International Court of Justice, seem to exclude soft law.158 Opponents of soft law argue that if a text is not hard, it is not law.159 Likewise, advocates of classical sources of law (legal positivists) assert that laws must be obligatory in nature.160 In international law, this problem is accentuated because the ascertainment of norms is deemed to be uncertain and ‘anarchic’.161 Those objecting to soft law place the authority of the State at the core of international law-making and implementation.162 This excludes other actors (integral to the formulation of soft law) from legitimately formulating international law. Moreover, harsh criticisms of soft law have been voiced in international forums. The European Parliament163 declared that soft law is vague and insidious164 and even warned against future reliance on soft law by the EU.165 Proponents of soft law submit that the term ‘soft law’ itself contains normative elements that lead to expectations of compliance.166 Compliance, it is argued, is observed from State behaviour that matches international soft law norms, not from the hardness of the law.167 They distinguish acquiescence from implementation (the latter being the purview of hard law). This is demonstrated by the conduct of States, which are increasingly particular about the language and provisions of soft law instruments.168 Some countries have even formally objected to the language used and have assigned their own interpretation of soft law provisions.169 Unlike the traditional positivist view highlighted above, it is now recognized that soft law may also elaborate or clarify treaty provisions and provide evidence of the emergence of an international customary law.170 The European Court of Justice seems to rely on soft law and emerging principles. Though not formally expressed as such, the doctrine of precedent and rules established in already decided energy cases (even fairly recent ones) are unequivocally applied in resolving subsequent energy disputes.171 Phrases such as ‘it is settled in case law that’ are repeatedly used by EU organs.172 Although decided cases are not soft law, reliance on principles outside of strict treaty provisions is a step towards formalizing energy law principles that are not encapsulated in hard law. This article submits that soft law provisions on renewable energy can be ‘hard’ in energy practice. Commitments by States to international obligations (despite their nature) are taken almost equally as seriously.173 Duties are generally observed; the issue of those provisions being anchored in soft or hard law remaining largely irrelevant. Thus, the pertinent question is not whether soft law obligations are binding or not but, rather, whether States respond to their obligations as expected. A renewable energy legal framework should focus on whether there is broad recognition or consensus over its rules, principles, and institutions. This may be useful in various ways. First, some soft law instruments may set new standards that ultimately crystallize into a binding instrument.174 The argument that soft law may be a step towards the adoption of a treaty or binding agreements175 finds credence in IRENA, which is an outcome of energy-related regional and international conferences.176 Second, they may elaborate or reaffirm provisions already contained in a treaty or another soft law instrument. Third, soft law may contribute to the formation of customary international law.177 Fourth, soft law can have a teleological value in interpreting hard law or play a passive role in building broad consensus on energy policy without following longer formal normative processes. Moreover, soft law can ‘soften up’ governments and stakeholders to agree to norms where there is some reluctance or scepticism.178 The flexibility and dynamism of soft law instruments and the organizations that promulgate them create room for more elaborate provisions on renewable energy than traditional legal sources. Also, soft law instruments may bridge the gaps in conventional international law processes.179 For example, traditional notions like international responsibility for harmful conduct could hinder environmental protection, whereas soft instruments like the Oslo Principles on Climate Change Obligations emphasize that both States and enterprises are obligated to avert anthropogenic climate change,180 and so do the Principles on Climate Obligations of Enterprises.181 With the assortment of renewable energy stakeholders, shared accountability for harmful actions among all actors (without invoking the formal breach-based responsibility of international law) could be more effective. Also, regulation requiring mitigation for pollution is one of the biggest risks to fossil fuels.182 Thus, greater emphasis should be placed on establishing effective regulation and not on strict conformity with legal traditions. The ideal legal framework for renewable energy may entail the conclusion of a global international energy law treaty. This has been proposed by Rosemary Lyster and Bradbrook.183 However, that remains a long-term aspiration due to the practical difficulties and bureaucracy that characterize formal hard law structures in international law. An excellent alternative, an energy protocol to the UNFCCC, has also been postulated by Bruce.184 This would reduce, but not eliminate, the consensus formalities of operating within a convention. The reinforcement of an overarching international energy law instrument (perhaps the international energy charter framework as a global successor to the more limited ECT), coupled with progressive adaptation of new rules through soft law, could work. The rapid global development of international environmental law is an example of the positive contribution of soft law to an emerging discipline.185 V. Conclusion Since no harmonized international renewable energy law exists, this article proposes the development of an overarching international energy law that is informed by the energy trilemma and customized by mainstreaming soft law. These parallel, yet interdependent, processes could be effectuated in several ways. First, for the development of a comprehensive international energy law, the pathways discussed in section IV would form both the ideological and practical basis for regulating renewable energy. This all-embracing legal framework would form foundational principles upon which specialized rules and regulations on renewable energy (or other energy sources for that matter) would be made. Second, the energy trilemma could be used both as a methodological and normative tool for renewable energy regulation. As a methodological tool, the energy trilemma could be an excellent matrix for the assessment of the efficacy of existing energy laws. Normatively, it could be used to assess the existing dispersed laws with a view of harmonizing various international initiatives and formulating specialized regulatory mechanisms on renewable energy. Third, as highlighted in section IV.3 above, the mainstreaming of soft law provisions would ensure progressive application of energy law principles by: setting new standards, interpreting, elaborating, or reaffirming current energy law provisions, contributing to the formation of customary international law and effectively building consensus among diverse stakeholders on energy policy. In conclusion, the complementary pathways recommended here could incrementally bridge both the conceptual and practical gaps in meeting the challenges and maximising the opportunities for renewable energy. This would make immediate action possible as the globe transitions to sustainable energy. Footnotes 1 Martti Koskenniemi and Paivi Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, 15/3 (2005) Leiden Journal of International Law, 553–79. 2 Arnold Pronto, ‘Some Thoughts on the Making of International Law’, 19/3 (2008) European Journal of International Law, 601 asserts: ‘Today, international law is made in a large number of fora, including multilateral processes, tribunals and the organs of international organizations’. 3 See, Philip Daniel, Michael Keen, and Charles McPherson (eds), The Taxation of Petroleum and Minerals: Principles, Problems and Practice (Routledge 2010); Kim Talus, Scott Looper, and Steven Otillar, ‘Lex Petrolea and the Internationalization of Petroleum Agreements: Focus on Host Government Contracts’, 5 (2012) Journal of World Energy Law and Business, 181–93. 4 See, Adrian Bradbrook, ‘Energy Law as an Academic Discipline’, 14/2 (1996) Journal of Energy & Natural Resources Law, 193. 5 See, e.g., Chambers and Partners, ‘Global Guide: Projects & Energy – Global-wide’, <https://www.chambersandpartners.com/15649/996/editorial/2/1> (accessed 12 February 2018); Chambers Associate, ‘Practice Areas: Energy and Projects’, <http://www.chambers-associate.com/practice-areas/energy-and-projects> (accessed 12 February 2018); Julia Derrick, ‘Solicitors’ practice areas: Energy & natural resources’, <https://www.lawcareers.net/Solicitors/SolicitorPracticeAreas/Energy-natural-resources> (accessed 12 February 2018). 6 International Renewable Energy Agency and Climate Policy Initiative, Global Landscape of Renewable Energy Finance, 2018 (IRENA, 2018). 7 Benoit Le Bars, ‘Recent Developments in International Energy Dispute Arbitration’, 32/5 (2015), Journal of International Arbitration, 543-50. 8 IRENA, The Statute of the International Renewable Energy Agency (IRENA Statute), (26 January 2009), available at <http://www.irena.org/-/media/Files/IRENA/Agency/About-IRENA/Statute/IRENA_FC_Statute_signed_in_Bonn_26_01_2009_incl_declaration_on_further_authentic_versions.pdf?la=en&hash=635C494208DD405EA8CD2BDB04414FECD40F55F1> (accessed 13 December 2017). 9 UN General Assembly, United Nations Framework Convention on Climate Change (20 January 1994; resolution adopted by the General Assembly), A/RES/48/189, available at <http://www.refworld.org/docid/3b00f2770.html> (accessed 14 December 2017). 10 Energy Charter Treaty and its Protocol on Energy Efficiency and Related Environmental Aspects, 2080 UNTS 95; 34 ILM 360 (1995) (ECT). 11 Raphael Heffron and Kim Talus, ‘The Evolution of Energy Law and Energy Jurisprudence: Insights for Energy Analysts and Researchers’, 10 (2016) Energy Research and Social Science, 1–10, 5. 12 World Energy Council, 2015 Energy Trilemma Index, (February 2015), <https://www.worldenergy.org/wp-content/uploads/2015/11/20151030-Index-report-PDF.pdf?> (accessed 17 November 2017). 13 Raphael Heffron, Darren McCauley, and Benjamin Sovacool, ‘Resolving Society’s Energy Trilemma through the Energy Justice Metric’, 87 (2015) Energy Policy, 168, 169. How energy law and policy attempt to balance the competing interests between economics, politics, and the environment is given more detailed treatment in section IV.B. 14 The definition of ‘sustainable energy’ is adopted from ‘World Energy Assessment: United Nations Development Programme, United Nations Department of Economic and Social Affairs, World Energy Council, World Energy Assessment and the Challenge of Sustainability (2000)’, in Richard Ottinger, “Nicholas Robinson, and “Victor Tafur (eds), Compendium of Sustainable Energy Laws (Cambridge University Press, 2005), 2, which expounds that ‘this term does not refer simply to a continuing supply of energy, but to the production and use of energy resources in ways that promote – or at least are compatible with – long-term human well-being and ecological balance’. 15 See for further analysis of what constitutes sustainability, Aviel Verbruggen and Erik Laes, ‘Sustainability Assessment of Nuclear Power: Discourse Analysis of IAEA and IPCC Frameworks’, 51 (2015) Environmental Science and Policy Journal, 170-80. 16 Martin Kaltschmitt, Wolfgang Streicher, and Andreas Wiese, Renewable Energy: Technology, Economics & Environment (Springer-Verlag, 2007), 35. 17 Wolfgang Friedmann, ‘The Changing Dimensions of International Law’, 62 (1962) Columbia Law Review, 1147. 18 Daniel Vielleville and Baiju Simal Vasani, ‘Sovereignty over Natural Resources Versus Rights under Investment Contracts: Which One Prevails?’, 5/2 (April 2008) Transnational Dispute Management, available at <https://www.crowell.com/documents/Sovereignty-Over-Natural-Resources-Versus-Rights-Under-Investment-Contracts_Transnational-Dispute-Management.pdf> (accessed 1 March 2018). 19 Helmut Steinberger, ‘Sovereignty’, in Max Planck Institute for Comparative Public Law and International Law, Encyclopaedia for Public International Law, 10 (North Holland, 1987), 414. 20 UN General Assembly Res 626 (VII) (1952). 21 UN General Assembly Res. 1803 (XVII) (1962). 22 UN General Assembly Res. 3201, 6th Special Session, GAOR, Supp. (No. 1), U.N. Doc. A/9559 (1974). 23 UN General Assembly Res. 3281, 29 GAOR, Supp. (No. 31), UN Doc. A/9361 (1974). 24 Ibid, Art. 2.2(c). 25 Including France, Germany, Japan, the United Kingdom, and the United States. See UN General Assembly, Declaration on the Establishment of a New International Economic Order, (1 May 1974), A/RES/S-6/3201, available at <http://www.un-documents.net/s6r3201.htm> (accessed 16 December 2017). 26 Ian Brownlie, Principles of Public International Law (Oxford University Press, 2003). 27 Noah Rubins and Stephan Kinsella, International Investment, Political Risk and Dispute Resolution (Oceana Publications, 2005), 261-78. 28 Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press, 2008), 28. 29Banco Nacional de Cuba v Sabbatino, 376 U.S. 398, 424 (1964). 30 Paul Schiff Berman, ‘Global Legal Pluralism’, 80 (2007) California Law Review, 1155. 31 Hannah Buxbaum, ‘Territory, Territoriality, and the Resolution of Jurisdictional Conflict’, 57 (2009) American Journal of Comparative Law, 631. 32 Tullio Treves, Francesco Seatzu, and Seline Trevisanut (eds), Foreign Investment, International Law and Common Concerns (OUP, 2013), 255. 33 Raphael Heffron, Anita Rønne, Joseph Tomain, Adrian Bradbrook, and Kim Talus, ‘A Treatise for Energy Law’, 11 (2018) Journal of World Energy Law and Business, 3, cite CJ Griffith of the High Court of Australia: Commonwealth v Registrar of Titles for Victoria (1918) 24 CLR 348, 354. 34 Stockholm Declaration, Principle 21; Rio Declaration, Principle 2. 35Legality of the Threat or Use of Nuclear Weapons, Adv. Op., ICJ Rep. 1996 (I) 226. 36 Marc Bungenberg and Stephan Hobe, Permanent Sovereignty over Natural Resources (Springer, 2015), 46. 37 Gianna Bern, Investing in Energy: A Primer on the Economics of the Energy Industry (Bloomberg Press, 2011), 12: ‘Consortiums are the order of the day and will continue to be over the long term.’ 38 Lillian Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-based Development’, 45 (2012) Vanderbilt Journal of Transnational Law, 785. 39 Ibid, 33. 40 Transnational petroleum law. 41 Transnational mercantile law, usage, and custom recognized internationally. 42 Government of the State of Kuwait v. American Independent Oil Co. (AMINOIL), Award of 24 May 1982, 21 (ILM) (1982) 976. 43 Alfredo de Jesús, ‘The Prodigious Story of the Lex Petrolea and the Rhinoceros: Philosophical Aspects of the Transnational Legal Order of the Petroleum Society’, 1/1 (2012) TPLI Series on Transnational Petroleum Law. 44 Thomas Childs, ‘Update on Lex Petrolea: The Continuing Development of Customary Law Relating to International Oil and Gas Exploration and Production’, 4/3 (2011) World Energy Law & Business, 214. 45 See, Paul Berman, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (Cambridge University Press, 2012). 46 Terence Daintith, ‘Against “Lex Petrolea”’, 10 (2017) The Journal of World Energy Law & Business, 1–10, 3, 5. 47 Ibid, 5. 48 Doak Bishop, ‘International Arbitration of Petroleum Disputes: The Development of a Lex Petrolea’, 23 (1998) Yearbook of Commercial Arbitration, 1207. 49 Talus, Looper, and Otillar (n 3) 189–91. 50 Martijn Wilder and Lauren Drake, ‘International Law and the Renewable Energy Sector’, in Kevin Gray, Richard Tarasofsky, and Cinnamon Carlarne (eds), The Oxford Handbook of International Climate Change Law (Oxford University Press, 2016), 362. 51 Ibid, Chapter 17. 52 Wilder and Drake (n 50). 53 James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 2012), 367–71. 54 Dinah Shelton, ‘International Law and Relative Normativity’, in Malcolm Evans (ed), International Law (OUP, 2006), 180. 55 Dinah Shelton, ‘Soft Law’, in David Armstrong (ed), The Routledge Handbook of International Law (Routledge, 2009), 70. 56 IRENA Statute (n 8) Art. II. 57 IRENA Statute (n 8) Art. IV. 58 Stuart Bruce, ‘International Law and Renewable Energy: Facilitating Sustainable Energy for All?’, 14 (2013) Melbourne Journal of International Law, 18–53. 59 Ibid, 46. 60 IRENA Statute (n 8) Art. II(a). 61 Jan Klabbers ‘Institutional Ambivalence by Design: Soft Organizations in International Law’, 70 (2001) Nordic Journal of International Law, 403. 62 The Paris Climate Conference of the Parties Agreement (‘COP 21’) to the United Nations Framework Convention on Climate Change (UNFCCC), available at <https://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf> (accessed 17 December 2017). 63 Ibid. 64 Carbon Tracker Initiative, Considerations for Reporting and Disclosure in a Carbon-constrained World (January 2016), <http://www.carbontracker.org/report/carbon_risk_disclosure_framework/> (accessed 12 December 2017). 65 Ibid, Art. 2. 66 Graham Coop, ‘20 Years of the Energy Charter Treaty’, 29/3 (2014) ICSID Review – Foreign Investment Law Journal, 515–24. 67 ECT (n 10) Art. 10–13. 68 Bruce (n 58) 24. 69 Klabbers (n 61). 70 See the International Energy Charter (2015), <https://energycharter.org/process/international-energy-charter-2015/overview/> (accessed 20 December 2017). 71 Ibid, Objective 3, 6, and 9. 72 International Energy Charter (n 70) Title III. 73 UN Doc A/Conf.151/26 (vol. I), Agenda 21: Programme of Action for Sustainable Development (adopted 14 June 1992, UN GAOR, 46th Sess., Agenda Item 21). 74 UN Doc. A/CONF.151/26 (vol. I), ‘Rio Declaration’ (adopted 14 June 1992). 75 Rio Declaration (n 74) Art. 9.1.2. 76 World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development and Plan of Implementation of the World Summit on Sustainable Development: The Final Text of Agreements Negotiated by Governments at the World Summit on Sustainable Development, 26 August-4 September 2002, Johannesburg, South Africa. 77 Plan of Implementation of the World Summit on Sustainable Development (adopted 4 September 2002, A/CONF.199/20), Art. 20(e). 78 Bruce (n 58) 32. 79 Wilder and Drake (n 50) 370. 80 Bruce (n 58) 15. 81 The Secretary-General’s High-Level Group on Sustainable Energy for All, Sustainable Energy for All: A Global Action Agenda (United Nations, 2012). 82 Abu Dhabi International Renewable Energy Conference (17 January 2013). 83 SE4ALL, ‘Our Mission’, available at <http://www.se4all.org/our-mission> (accessed 4 January 2018). 84 ECT (n 10). 85 (1998) 37 ILM 22. 86 (n 76). 87 Rosemary Lyster and Adrian Bradbrook, Energy Law and the Environment (Cambridge University Press, 2006), 198. 88 Antonio Cassese, International Law (Oxford University Press, 2005), Part III. 89 Anatole Boute, ‘Combating Climate Change through Investment Arbitration’, 35/3 (2012) Fordham International Law Journal, 652–3. 90 See Tim Foxon and Peter Pearson, ‘Overcoming Barriers to Innovation and Diffusion of Cleaner Technologies: Some Features of a Sustainable Innovation Policy Regime’, 16 (2008) Journal of Cleaner Production, S148-61. 91 Ibid, S149. 92 ‘Quo Vadis’ is defined by the Merriam-Webster dictionary as ‘Whither are you going?’, Merriam-Webster, available at <http://www.merriam-webster.com/dictionary/quo%20vadis?> (accessed 6 December 2017). 93 Bradbrook (n 4) 193, defines energy law as the ‘allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between governments and between states.’ 94 Heffron and Talus (n 11) 1. 95 Martha Roggenkamp, Catherine Redgwell, Anita Ronne, and Inigo del Guayo (eds), Energy Law in Europe (OUP, 2016; 3rd edn); Raphael Heffron and Gavin Little (eds), Delivering Energy Law and Policy in The EU and The US (Edinburgh University Press, 2016); Angus Johnston and Guy Block, EU Energy Law (Oxford University Press, 2012). 96 Heffron et al. (n 33) 1–15. 97 John Bowman, ‘Lex Petrolea: Sources and Successes of International Petroleum Law’, 39 (2015) Texas State Bar Oil, Gas & Energy Res L Sec Rep, 93, 94. 98 Daintith (n 46) 1. 99 Louis-Alexis Bret and Henry Burnett, Arbitration of International Mining Disputes: Law and Practice (OUP, 2017), Chapter 20. 100 See Lyster and Bradbrook (n 87); Karen Makuch and Ricardo Pereira, Environmental and Energy Law (Wiley Blackwell, 2012); Patricia Park, Energy Law and The Environment (Taylor & Francis, 2013; 2nd edn); Mark Wilde, Civil Liability for Environmental Damage (Wolters Kluwer Law and Business, 2013; 1st edn). 101 Peter Cameron, International Energy Investment Law (Oxford University Press, 2005); Andrea Kramer and Peter Fusaro (eds), Energy and Environmental Project Finance Law and Taxation: New Investment Techniques (Oxford University Press, 2010). 102 Priscilla Schwartz, ‘Sustainable Energy Infrastructure: Law, Policy and Practice’, 4/2 (2009) Journal of International Commercial Law and Technology, 107–16. 103 Barry Barton, Catherine Redgwell, Anita Rønne, and Donald Zillman (eds), Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment (Oxford University Press, 2004), Chapters 2 and 3. 104 The distinction between the work here and a narrower notion such as lex petrolea is that international energy law is clearer in normative content and enforcement. The coherence of ‘International Energy Law’ is akin to widely accepted subjects like ‘Environmental Law’. This view finds favour even in highly critical texts. For example, Terence Daintith argues that ‘Titles such as “Environmental Law” or “Labour Law” are suggestive of a conceptual unity or at least coherence in the relevant legal material sufficient to justify carving out a space in research classifications, in teaching curricula and, ultimately, in the organization of legal practice’. See Daintith (n 46) 7. 105 Heffron et al. (n 33) 1. 106 Ibid, 3-13. 107 See Ottinger et al. (n 14) 2. 108 Kim Talus, EU Energy Law and Policy: a Critical Account (OUP 2013), 3–4. 109 Heffron et al. (n 33) 1. 110 See International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (13 April 2006; Report of the Study Group of the International Law Commission; A/CN.4/L.682), para. 65 ff; Alexandra Wawryk, ‘International Energy Law as an Academic Discipline’, in Paul Babie and Paul Leadbeter (eds), Law as Change: Engaging with the Life and Scholarship of Adrian Bradbrook (University of Adelaide Press, 2014), 223. 111 Adrian Bradbrook, ‘Energy Law: The Neglected Aspect of Environmental Law’, 19 (1993) Melbourne University Law Review, 1. 112 U.N. Charter Art. 1(1) establishes the principle that a key function of the General Assembly is ‘encouraging the progressive development of international law and its codification’. 113 Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier, and Mila Versteeg (eds), Comparative International Law (OUP, 2018), 202. 114 Martti Koskenniemi, ‘The Politics of International Law’, 1 (1990) European Journal of International Law, 4, 27. 115 ‘Balancing Our Energy Future’ (2016), <https://ourfuture.energy/post/12/balancing-our-energy-future> (accessed 2 December 2017). 116 Raphael Heffron, Energy Law: An Introduction (Springer, 2015), 3. 117 Ulrich Steger, Sustainable Development and Innovation in the Energy Sector (Springer, 2010), 6. 118 Toorah Jasmab and Rabindra Nepal, ‘Delivering Energy Networks Security: Economics Regulation and Policy’, in Heffron and Little (n 95) 45. 119 Raphael Heffron and Tedd Moya Mose, ‘The Legal Challenges to Building New Energy Infrastructure in the EU’, in Robert Szuchy, Oliver Arpad Homicsko, and Csaki-Hertalovics (eds), KRE Energy Forum (Budapest, Patrocinium Publishing House Ltd, 2017), 104–20. 120 Michael Curley, Finance Policy for Renewable Energy and a Sustainable Environment (CRC Press, 2014), 2. 121 Curley (n 120) xvii explains: ‘When colleagues asked me the working title of the book I was writing, I, of course, told them, “Finance Policy for Renewable Energy and a Sustainable Environment.” Their next question invariably was, “When did you start writing fiction?” Their point is well taken.’ 122 Raphael Heffron, ‘The Global Future of Energy Law’, 7 (2016) International Enforcement Law Reporter, 290. 123 Martin Kaltschmitt, Wolfgang Streicher, and Andreas Wiese, Renewable Energy: Technology, Economics & Environment (Springer-Verlag, 2007). 124 Ørsted, Let’s Create a World Running Entirely an Green Energy (2017), <https://orsted.co.uk/en/About-us/Our-company/Our-name-change> (accessed 19 November 2017). 125 ‘CHP Finance’ (DECC, 2008), available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/345190/Part_5_CHP__Finance.pdf> (accessed 2 November 2017). 126 Curley (n 120) 2. 127 Roy Goode et al., Transnational Commercial Law: International Instruments and Commentary (Oxford University Press 2015; 2nd edn), Chapter 22. 128 Barbara Koremenos et al., ‘The Rational Design of International Institutions’, 55 (2001) International Organisation, 761, 766-8. 129 Nicola Labanca, ‘Energy and Complex Systems Dynamics’, in Nicola Labanca (ed), Complex Systems and Social Practices in Energy Transitions Framing Energy Sustainability in the Time of Renewables (Springer, 2017), 46. The author further argues that the degree of flexibility required by complex societies cannot be achieved exclusively through top-down administration. 130 European Commission, One Trillion Euro to Invest in Europe’s Future: the EU’s Budget Framework 2014-2020 (19 November 2013; press release), <http://europa.eu/rapid/press-release_IP-13-1096_en.htm> (accessed 18 January 2017). 131 See Bloomberg, Mapping the Gap: The Road from Paris (Finance Paths to a Two-Degree Future) (Bloomberg New Energy Finance, 2016). World Energy Council, World Energy Trilemma: Priority Actions on Climate Change and How to Balance the Trilemma (Oliver Wyman, 2015), <http://www.oliverwyman.com/content/dam/oliver-wyman/v2/publications/2017/may/The_World_Energy_Trilemma.pdf> (accessed 12 February 2018), 14 asserts: ‘Germany’s energy transition may require as much as US$469bn by 2033, if not more.’ Also, US $208 billion in investment in low-carbon energy sources will be needed annually over the next 25 years. 132 Curley (n 120) 28, 204. 133 Barton et al. (n 103) 7–8. 134 International Monetary Fund, World Economic Outlook, Commodity Special Feature (April 2016), <https://www.imf.org/external/pubs/ft/weo/2016/01/pdf/SF_Commod.pdf> (accessed 19 November 2017). 135 Ian Smart, ‘Energy and The Public Good’, 36/2 (1981) International Journal, 255–72. 136 Adrian Bradbrook and Judith Gardam, ‘Placing Access to Energy Services within a Human Rights Framework’, 28 (2006) Human Rights Quarterly, 389. 137 Euratom Supply Agency, Report on Nuclear Fuel Security of Supply (June 2015; Advisory Committee WG Report), available at <http://ec.europa.eu/euratom/docs/2015-ESA-MEP-rapport-web.pdf> (accessed 9 December 2017), 25. 138 Noah Rubins and Stephen Kinsella, International Investment, Political Risk and Dispute Resolution (Oceana Publications, 2005), 153. 139 Dinos Kerigan-Kyrou, ‘Critical Energy Infrastructure: Operators, NATO, and Facing Future Challenges’, 12/3 (2013; English edition) Connections: The Quarterly Journal, 109. 140 Donatella Della Porta, ‘Social Movements and Civil Society: How Emerging Social Conflicts Challenge Social Science Approaches’, in Stefano Fella and Carlo Ruzza (eds), Anti-Racist Movements in the EU (Palgrave Macmillan, 2010), 51–68. 141 Daniel Hemel and Lisa Ouellette, ‘Knowledge Goods and Nation-States’, 101 (2016) Minnesota Law Review, 167. 142 Nicola Swayne, ‘Coal Seam Gas Exploration and Production in Australia: Adaptive Environmental Management and Other Legal Responses’, 22/3 (2014) Environmental Liability, Law Practice and Policy, 72. 143 Dieter Helm, ‘Government Failure, Rent-seeking, and Capture: The Design of Climate Change Policy’, 26/2 (2010) Oxford Review of Economic Policy, 182–96. 144 Merrill Jones Barradale, ‘Impact of Public Policy Uncertainty on Renewable Energy Investment: Wind Power and the Production Tax Credit’, 38 (2010) Energy Policy, 7698–709. 145 Robert Keohane and Lisa Martin, ‘The Promise of Institutionalist Theory’, 20/1 (1995) International Security, 39. 146 George Hoffman and Leslie Dienes, The European Energy Challenge: East and West (Duke University Press, 1985), 50. 147 Ruven Fleming, Shale Gas, the Environment and Energy Security (Edward Elgar, 2017), 180. 148 Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press, 2002), 310. 149 Nicholas Stern (World Bank chief economist) in The Stern Review: Report on the Economics of Climate Change (London, 2006; Cabinet Office – HM Treasury). 150 Lyster and Bradbrook (n 87) 198. 151 Adam Vaughan, ‘Seven Climate Records Set So Far in 2016’, (17 June 2016) The Guardian, available at <https://www.theguardian.com/environment/2016/jun/17/seven-climate-records-set-so-far-in-2016> (accessed 4 November 2017). 152 International Energy Agency, World Energy Outlook Special Report 2015: Energy and Climate Change, (2015), available at <https://www.iea.org/publications/freepublications/publication/WEO2015SpecialReportonEnergyandClimateChange.pdf> (accessed 30 November 2017). 153 Amory Lovins, Soft Energy Paths: Toward a Durable Peace (Ballinger, 1977) proposed (in the height of oil and gas dominance) that renewable energy would soon dominate a ‘soft energy path’. 154 UK’s Special Representative for Climate Change. In a lecture titled, ‘Paris Agreement on Climate Change, What Next?’, delivered on 12 January 2015 during the Clifford Chance Annual Lecture and organised by the Energy and Natural Resources Institute, Queen Mary University of London. 155 Lovins (n 153) 55. 156 International Energy Agency, Recent Trends in the OECD: Energy and CO2 Emissions (2016), available at <http://www.iea.org/media/statistics/Recent_Trends_in_the_OECD.pdf> (accessed 30 November 2017). 157 Julian Borger, ‘Trump Drops Climate Change from US National Security Strategy’, (19 December 2017) The Guardian, available at <https://www.theguardian.com/us-news/2017/dec/18/trump-drop-climate-change-national-security-strategy> (accessed 21 December 2017). 158 United Nations, Statute of the International Court of Justice (18 April 1946), available at <http://www.icj-cij.org/en/statute> (accessed 5 January 2018), Art. 38(1). 159 Jan Klabbers, The Concept of Treaties in International Law (Martinus Nijhoff Publishers, 1996), 57–164. 160 Gennady Danilenko, Law-making in the International Community (Springer, 1993), 20. 161 Malcolm Shaw, International Law (Cambridge University Press 2008; 6th edn), 66. 162 John Kirton and Michael Trebilcock (eds.), Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment and Social Governance (Ashgate, 2004), 9. 163 European Parliament Resolution of 4 September 2007 on Institutional and Legal Implications of the Use of ‘Soft Law’ Instruments (2007/2028(INI)). 164 Ibid preamble, para A. 165 European Parliament Resolution (n 163) para 1. 166 Dinah Shelton, ‘Law, Non-law and the Problem of Soft Law’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (OUP, 2000), 2. 167 Ibid, 5. 168 Geoffrey Palmer, ‘New Ways to Make International Environmental Law’, 86 (1992) American Journal of International Law, 259, 274. 169 David Hunter, James Salzman, and Durwood Zaelke, International Environmental Law and Policy (Foundation Press, 2011; 4th edn), 348 discuss the US interpretive statement of Principle 7 of the Rio Declaration on the common but differentiated responsibility principle. The US conditionally accepted the principle if it did not mean that the US was culpable for past environmental harm. 170Legality of the Threat or Use of Nuclear Weapons (n 35). 171Commission v Bulgaria (Ministerial Council of the ENC): Decision C-198/12 of 5th June 2014 used this phrase at paragraph 15 of the Findings of the Court, citing Case C-191/95 Commission v Germany and Case C-167/12 Commission v Spain. 172 See EU energy law reports for other cases with similar phraseology in Helmut Schmitt von Sydow, EU Energy Legislation & Case Law Handbook 2014 (Claeys & Casteels Publishers, 2014). 173 Steve Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’, 18 (1996–97) Michigan Journal of International Law, 183. 174 Dinah Shelton, ‘Commentary and Conclusions’, in Dinah Shelton (ed), Commitment and Compliance: The Role of Non-binding Norms in the International Legal System (Oxford University Press, 2000), 449-50: ‘[soft law instruments are] normative texts not adopted in treaty form that are addressed to the international community as a whole’. 175 Richard Baxter, ‘International Law in “Her Infinite Variety”’, 29/4 (1980) International and Comparative Law Quarterly, 549–66. 176 See the annex to the agreed text of the International Energy Charter, <https://energycharter.org/fileadmin/DocumentsMedia/Legal/IEC_EN.pdf> (accessed 18 December 2017). 177 In the Legality of the Threat or Use of Nuclear Weapons (n 35), the ICJ affirmed that the resolutions of the UN General Assembly have a high probative value in establishing the existence of a rule or the emergence of an opinion juris. 178 Klabbers (n 61). 179 Catherine Redgwell, ‘International Soft Law and Globalization’, in Barry Barton et al. (eds), Regulating Energy and Natural Resources (Oxford University Press, 2006), 89, 98–9. 180 See Yale Global Justice Program, <https://www.socialeurope.eu/wp-content/uploads/2015/10/OP8-final.pdf> (accessed 12 February 2018). See also the contribution by Jaap Spier to this special issue. 181 See, Expert Group on Climate Obligations of Enterprises, Principles on Climate Obligations of Enterprises, (Eleven International Publishing, 2018). 182 Gianna Bern, Investing in Energy: A Primer on the Economics of the Energy Industry (Bloomberg Press, 2011) 7. 183 Lyster and Bradbrook (n 87) 199. 184 Bruce (n 58) 31. 185 Andrew Guzman and Timothy Meyer, ‘International Soft Law’, 2 (2010) Journal of Legal Analysis, 171. © The Author(s) (2018). Published by Oxford University Press on behalf of Unidroit. All rights reserved. For permissions, please email journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Uniform Law Review/Revue De Droit UniformeOxford University Press

Published: May 4, 2018

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