International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2016 Issue
 

Special Report

 

International Law and Renewable Energy: Between Lex Lata and Lex Ferenda

Mehrdad Mohamadi
By: Mehrdad Mohamadi, Ph.D. Candidate in International Law, Shahid Beheshti University, Tehran, Iran

In the wake of global energy crises, including the supply, price and pollution matters related to traditional sources of energy, the use and development of renewable energy is seriously considered by the international community. The increasing importance attached to the issue is derived from the fact that sustainable development is almost impossible without the use of sustainable energy sources. Moreover, the protection of the environment is considered as “common concern of humanity”. Current trends in energy resources in the world suggests that the use of fossil fuels, has severely undermined the existence of such resources. On the other hand, the use of fossil fuels without a doubt makes irreparable damages to the environment.

The Inter-governmental Panel on Climate Change Fourth Assessment Report (AR4) points out that fossil fuels have accounted for 85 percent of the world's fuel resources between 2004 to 2008. Besides, 56% of greenhouse gas emissions have been produced as a result of burning the fossil fuels. Having regard to the soaring trend of energy use in the world, most of which supplied by the fossil fuels, and in keeping with a dynamic economic system capable of providing an acceptable standard of living for the citizens of developed and developing countries and no further damage to the environment, it is necessary to reconsider the current sources of energy supply and energy consumption. Notwithstanding the declining trend of non-renewable resources of energy and the severe pollution they produce, renewable energy seems to be a reasonable alternative to fossil fuels, since their use both supplies the required energy for the economic development, in line with energy security policies, and has much less (or zero) pollution and toxic emissions and would guarantee sustainable development.

The international community, aware of this, has made efforts to promote the use of sustainable energy. Although these efforts do not suffice, they constitute initial small steps towards achieving an important goal. The UN secretary general's initiative called "SE4ALL" and  "a decade of sustainable energy for all (2014 – 2024)" that seeks to increase the level of sustainable energy to 30% by 2030 are amongst such efforts and represent a commitment to promote the use of renewable energy sources. Moreover, the efforts to establish international organizations, namely the International Renewable Energy Agency (IRENA), indicates the significance of the issue at the international level.

 

In order to achieve the United Nations goal to reduce carbon emissions and promote the use of renewable energy sources, international legal rules and standards must be in place. To this end, governments, intergovernmental and non governmental organizations play a very significant role in the formulation and implementation of international regulations, that ultimately leads to sustainable production and consumption of energy.

In the international legal system, binding provisions that directly address the issue of the use and development of renewable energy do not exist yet. However, some non-binding legal documents (e.g. Agenda 21) have addressed the issue. Treaties such as the UN Framework Convention on Climate Change (and the Kyoto Protocol), and the Energy Charter Treaty lack definite and binding obligations on the use of renewable energy; however, the role of international environmental law and international energy law in this sphere is a crucial one, since the emerging norms and standards that might regulate the renewable energy use originate from those fields. In the absence of binding treaty obligations in the field of renewable energy, customary rules and general principles of international law will play the central role.

In the legal analysis, an important issue that should be kept in mind is the inviolable principle of permanent sovereignty of states over their natural resources. This principle has been reiterated in various international instruments, including in a number of the UNGA resolutions. However, this principle is not absolute. It can be limited by the "No Harm" principle, according to which no state may use its territory in a way that harms the territory of other states. This is the point where the issue of renewable technology might be raised. Clearly, the extraction and burning of fossil fuels can result in damages to the territory of other states, but the low (or zero) amount of pollution caused by renewable energies ensures no harm to other states’ territories.

Finally, given the undeniable significance of renewable energy in sustainable development process, reducing the threat of climate change and world energy security, developing a comprehensive international legal regime in this area seems to be inevitable. A comprehensive international legal regime on renewables will both require states to promote renewable energy in their energy mix and serve as a basis for the legal development of the issue.

 
ASIl & International Judicial AcademyInternational Judicial Monitor
© 2016 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.