International Environmental and Investment Law

International Environmental and Investment Law
 The Recent Journey from Fragmentation towards Alignment

 Sorcha Finlay

 LL.M International Law and Global Governance Thesis
 Supervisor: Michael Leach (Tilburg University)

 June 2021

 Department of International and European Law
 Tilburg Law School
 Tilburg University
 The Netherlands

Acknowledgements

 The completion of this thesis would not have been possible without the profound

support of my supervisor, Michael Leach. Thank you for your insight and reassurance

throughout this process, it has made the world of difference!

 To my Dutch and Spanish cheerleaders, Niels and Isabel. Your friendship,

encouragement and zoom calls have been the highlight of my experience at Tilburg

University. I can’t wait to celebrate our graduation with a beer in the near future!

 I would also like to express my deepest gratitude to my parents, Anne and Gerry,

for putting up with me and my kitchen-table-library over the past few months. Your love

and support (and coffee provisions) has gotten me over this finish line, for which I am

forever grateful.

 To my siblings, David and Emer, and greatest pals, Dan and Zoe. Thank you for

being the best hype squad and dip clubbers. You’re all class.

 Finally, Aifric and Lizzie, where would I heckin’ be without you.

 1

Abstract

 Theories of fragmentation have been prevalent in international law since the late

1980s. Fragmented international architectures are theorised to cause instability and

frustration across treaty regimes, increasing over time. If this is the case, fragmentation

holds consequences for the future of international law, not only insofar as it could prevent

regimes from achieving their goals, but also that it might actively prevent the outcomes it

set out to generate. This claim suggests that the international system today should be

more unstable, divided and incoherent than it was when these theories first emerged.

However, the research of this paper indicates that this is too simplistic a description, and

that the specialised regimes of international environmental law and investment law have

become more aligned and dependent on one another for their legitimacy over time.

 2

List of Abbreviations

CETA - Comprehensive Economic and Trade Agreement

CIL - Comparative International Law

IEL - International Environmental Law

IIAs - International Investment Agreements

IIL - International Investment Law

IL - International Law

ILC - International Law Commission

MEAs - Multilateral Environmental Agreements

NAFTA - North American Free Trade Agreement

 3

Table of Contents

 Acknowledgements................................................................................................1

 Abstract..................................................................................................................2

 List of Abbreviations...............................................................................................3

1. Introduction………………………………………………………………………………5

2. Theory and Methodology……………………………………………………………...12

3. Comparative Results…………………………………………………………………..23

 3.1 Mexico-EU Global Agreement ………….……………………………….23

 3.2 Comprehensive Economic Trade Agreement ………..………………..25

 3.3 Parliamentary debates..…………………………………………………..30

4. Discursive Analysis…………………………………………………………………….39

 4.1 Treaty Language…………………………………………………………..40

 4.2 Political Concerns……………………………………………………........44

 4.3 Investor-State Dispute Settlement……………………………………….46

 4.4 Fragmentation or Misalignment?.........................................................50

5. Conclusion…………………………………………………………………………...…54

6. Bibliography…………………………………………………………………………….59

 4

Chapter 1: Introduction

 Theories of fragmentation have been prevalent in international law (IL) since the

late 1980s and have had wide-reaching implications for the credibility, reliability and

authority of IL.1 The phenomenon is referred to by some scholars as the ‘breakup’ of IL

into isolated spheres of influence, whereas others pose that fragmentation is concerned

with the increased of different regimes, thus increasing their normative competition.2

Inconsistencies in legal counsel arise as a result of this and in some instances States are

put in an unthinkable situation whereby they have to violate one binding norm in order to

serve another.3 A key assumption of this theory is that fragmentation will continue to

increase over time with the expansion of specialised regimes.4 If this is the case,

fragmentation holds huge consequences for the future of IL, not only insofar as it could

prevent regimes from achieving their goals, but also that it might actively prevent the

outcomes it set out to generate. Thus, to assess the potential effectiveness of new

specialised treaty regimes, it is first important to investigate whether theories of

fragmentation apply to the regimes in question.

1
 Anne Peters, 'The Refinement Of International Law: From Fragmentation To Regime Interaction And
Politicization' (2017) 15 International Journal of Constitutional Law 671; Martti Koskenniemi and Päivi
Leino, 'Fragmentation Of International Law? Postmodern Anxieties' (2002) 15 Leiden Journal of
International Law 560; Gerhard Hafner, 'Pros and Cons Ensuing from Fragmentation of International Law'
(2004) 25 Michigan Journal of International Law 849
2
 Tamar Meggido, 'Beyond Fragmentation: On International Law’s Integrationist Forces' (2019) 44 Yale
Journal of International Law 115
3
 ibid. 116
4
 ibid.

 5

More recently, the expansion of international environmental and climate regimes

has shed light on the theory of fragmentation once again.5 Pressures on states to comply

with international environmental obligations have risen drastically in the past decade,

particularly with the signing of the Paris Agreement on climate change in 2015.6 Climate

change is a “high complex, multi-sector, multi-scale problem. Addressing it effectively

requires coordinated policy responses in many domains”.7 Through this it becomes clear

that any attempt to mitigate and prevent the impacts of climate change will involve

interactions with other international legal regimes. Therefore, it is imperative that the

nature of these interactions and their potential for supposed ‘fragmentation’ can be

understood. This will ultimately contribute to the creation of more coherent governance

structures, enabling each regime to realise its full potential within the wider legal arena.

 Fragmentation is generally discussed in a negative light as it encapsulates the lack

of hierarchy within the international legal system.8 It proves problematic for IL as a number

of international regulations may apply to one situation.9 This results in complicated

disputes on which regulation gets priority and should be applied. In turn, creating “more

conflicts than were solved by the creation of each individual legal regime”10, thus reducing

the creditability of IL. Therefore, the identification of fragmentation has great impacts on

the legitimacy of IL as a whole.

5
 Sandrine Maljean-Dubois and Matthieu Wemaëre, 'Complex Is Beautiful. What Role For The 2015 Paris
Agreement In Making The Effective Links Within The Climate Regime Complex?' (2018) 14 Revista de
Direito Internacional
6
 ibid.
7
 ibid.
8
 Peters n(1) 672
9
 Hafner n(1) 856
10
 ibid

 6

This paper seeks to challenge the validity of theories of fragmentation in IL through

the comparative analysis of the 1997 Mexico-EU Global Agreement (MEUGA) and the

2016 Comprehensive Economic Trade Agreement (CETA). Trade and investment

regimes are often considered at ‘two sides of the same coin’11 and have overlapping

features. For clarity, this paper will focus on the investment section of MEUGA and CETA.

These regimes both contain investment provisions outlining the purpose of enhanced

investment and protection mechanisms. Through comparison, the paper will ask to what

degree it still make sense to consider IEL and IIL ‘fragmented’ in IL. To establish this, is

to establish the capacity of effectiveness of both regimes as they operate on parallel, thus

proving vital when predicting the efficacy and success of these two regimes.

 Both the MEUGA and CETA are trade agreements between the EU and north

American countries. This will be done in correlation with the analysis of Irish parliamentary

debates in the lead up to their ratification. International Investment Law (IIL) and

International Environmental Law (IEL) will be used within this paper as they have

frequently been cited in scholarly as interesting examples of fragmentation theory.12 The

2006 ILC Report cites IEL and IIL as prime cases of fragmentation between specialised

legal regimes.13 The report goes further to point out that fragmentation between treaties

11
 OECD, 'International Trade And Investment: Two Sides Of The Same Coin?' (OECD 2018)
 accessed 5 June
2021.
12
 See Koskenniemi and Leino n(1) 558; Peters n(1); Megiddo n(2) 116; Jorge Viñuales, '11 Normative
Priority Between Different Legal Systems', Foreign Investment and the Environment in International Law
(Cambridge University Press 2015) 281
13
 Martti Koskenniemi, 'Fragmentation Of International Law: Difficulties Arising From The Diversification
And Expansion Of International Law' (United Nations 2006).

 7

of different regimes is most prominent between trade and environmental regimes.14 The

interpretation of conflicting rules and norms between these two regimes is shown to

create the possibility of ‘structural bias’ made in accordance with the priorities of those

interpreting the conflict.15 IEL and IIL were also chosen as examples within this research

due to the wealth of scholarly debate surrounding their fragmentation. This is

demonstrated by Eckersly as he highlights how disputes between international trade and

environmental regimes are politically controversial and trade rules tend to reign superior

over their environmental counterparts.16 Similarly, Charnovitz finds that the aims of both

regimes can come into conflict when not properly managed. Yet, he argues that both

regimes share many characteristics in the aim of greater economic efficiency and

enhanced public well-being, thus pointing out their potential compatibilities.17 More

recently IEL and IIL have come back into view with the expansion of climate change law

and the increase in uptake of bilateral and free trade agreements.18 The above examples

show the prevalence of theories of fragmentation across IEL and IIL. Thus, this study will

use these regimes to investigate the strength of such theories. To answer the overall

research question; to what degree does it still make sense to consider IEL and IIL as

‘fragmented’, this paper will answer the following sub-questions:

14
 ibid. 138
15
 ibid. 143
16
 Robyn Eckersley, 'The Big Chill: The WTO And Multilateral Environmental Agreements' (2004) 4 Global
Environmental Politics 24
17
 Steve Charnovitz, 'Trade And Climate: Potential Conflicts And Synergies' [2003] Advancing the
International Effort Against Climate Change 1
18
 Jorge Viñuales, 'Foreign Investment and The Environment in International Law: The Current
State of Play' (2016) 1 C-EENRG Working Papers 7

 8

1) How has IEL’s representation in IIA’s changed over time?

 2) How has this representation impacted the relationship between IEL and IIL?

 3) To what extent do these changes and impacts relate to theories of fragmentation

 in IL?

 The purpose of this dissertation is to investigate and qualify whether

‘fragmentation’ as it has been presented since the publication of the 2006 International

Law Commission (ILC) Report on the Fragmentation of International Law can still be

applied to the current expansion of IEL and. In doing so it hopes to shed light on shifting

relations between regimes in IL and show that assumptions associated with fragmentation

of specialised regimes must be reviewed in order for supposed disjointed regimes to

realise their potential harmonisation.

 The paper will first outline the theoretical core and methodology of this paper. It

will discuss a range of literature concerning fragmentation in IL. This will define the

concept itself as well as outlining how it presents itself in different regime types. Its

positive and negative impacts will be discussed with a particular focus on IEL and IIL. As

mentioned, these two regimes are cited as prime example of fragmented regimes. Thus,

if theories of fragmentation are correct and IL is still fragmented, the expansion of these

regimes should further embed their ‘fragmentation’.19 Fragmentation is argued to lead to

the instability of the international arena,20 thus if these regimes are still fragmented, it will

19
 Meggido n(2) 116
20
 Frank Biermann and others, 'The Fragmentation Of Global Governance Architectures: A Framework
For Analysis' (2009) 9 Global Environmental Politics.29

 9

have wider implications on the stability of IL. The importance of IEL and IIL has come into

light with the further expansion of IEL through the 2015 Paris Agreement and the growth

of bilateral investment and free trade agreements. 21 Therefore, they are frequently cited

and topical regimes that are appropriate for the purpose of this research.

 The theoretical overview will raise the importance of assessing domestic socio-

political fragmentation and how it reflects and contributes to the phenomenon at an

international level. Following on from this, the use of a comparative international law

methodology will be justified. The paper will compare the integration of environmental

considerations in two different treaty regimes from contrasting time periods: the Mexico-

EU Global Agreement (MEUGA) signed in 1997 and the Comprehensive Economic Trade

Agreement (CETA) signed in 2016. Complementary to this, it will compare political

debates associated with the ratification of these regimes from the Irish parliament. The

political discourses presented will be compared to gain a comprehensive insight into

whether IEL and IIL are more politically integrated in recent years compared to earlier

time periods when theories of fragmentation were initially emerging. This will shed light

on how trends have environmental provisions are vital in the legitimisation of investment

regimes. The following chapter will lay out the comparative results. This will be followed

by a discussion of these results. Finally, the paper will conclude by arguing that these

regimes should no longer be considered fragmented as they share more similarities than

differences. However, they are still misaligned due to the domineering nature of investor-

state dispute mechanisms provided in IIAs. This lens of misalignment should be used to

21
 Thomas Waelde and Abba Kolo, 'Environmental Regulation, Investment Protection And ‘Regulatory
Taking’ In International Law' (2001) 50 International and Comparative Law Quarterly 811

 10

stress the similarities between specialised regimes, rather than the differential nature of

fragmentation theories. This would work to decompartmentalise such regimes in IL and

emphasise their mutually reinforcing capacities. In turn, focusing overcoming regime

differences with a positivist approach and working towards a more stable outlook on the

international legal system as a whole.

 11

Chapter 2: Theory and methodology

 This paper revolves around theories of ‘fragmentation’ in IL. Fragmentation

emerged as an important theory in IL from the mid-1990s with the growth of newly

specialised legal regimes after the fall of communism.22 According to fragmentation

theorists such as Koskenniemi and Leino, specialised regimes of IL have been designed

and implemented in ignorance of one another by emphasising diverging principles, rules,

and interests.23 Indeed, Hafner contributed to this to this by reasoning that IL is formed

of “erratic blocks and elements; different partial systems; and universal, regional, or even

bilateral subsystems and sub subsystems of different levels of legal integration”. 24 This

fragmented formulation was speculated to have created difficulties for lawyers as they

sought to navigate and resolve conflicting rules, legal systems and diverging institutional

practices.25 As theories of fragmentation emerged and developed, it was considered a

pervasive and problematic phenomenon. This was evidenced Judge Guillaume’s 2002

speech to the International Court of Justice’s Sixth Committee of the General Assembly

where he stated, “the proliferation of international courts may jeopardize the unity of IL

and, as a consequence, its role in inter-State relations ”.26 Following on from this, the

2006 ILC Report on the Fragmentation of International Law emphasised the lack of

hierarchy between conflicting legal regimes such as environment and trade, human rights

and immunity and new treaties on fisheries and law of the sea. This absence of

22
 Koskenniemi and Leino n(1) 559
23
 ibid.
24
 Hafner n(1) 856
25
 Jorge E Viñuales, ‘6 Normative Priority in International Law’, Foreign Investment And The Environment
In International Law (Cambridge University Press 2015) 133
26
 Address by H.E Judge Guillaume in Martti Koskenniemi and Päivi Leino, 'Fragmentation Of
International Law? Postmodern Anxieties' (2002) 15 Leiden Journal of International Law.

 12

authoritative understanding between these regimes was found to act as a threat to the

“credibility, reliability and, consequently, authority of international law”.27 These quotes

display the historical context and impactful discourses surrounding the emergence of

theories of fragmentation in IL. These concerns ultimately amalgamated in the ILC Report

on Fragmentation in International Law

 Prior to, and following, the publication of the 2006 ILC Report, concerns were being

raised by fragmentation theorists in relation to normative priority between specialised

obligations and the overall coherence of IL. Fragmentation was discussed through a

predominantly negative lens at his time. Hafner argued that while the unorganised system

of IL can have positive effects, fragmentation can create and entrench contradictions

between various regimes, thus binding States to mutually exclusive responsibilities.28

Similarly, Biermann and others find that cooperative fragmentation can impact

governance in both positive and negative ways. Positive aspects arise where key norms

are not in conflict, allowing for a variety of policy approaches, which can enable the

integration of “more relevant actors and areas than would be feasible through a more

integrated but static architecture”.29 They point out that the negative impacts of

cooperative fragmentation may outweigh benefits as “a less fragmented architecture…

could allow for systematic and stable agreements between the institutional frameworks

of the world trade regime and environmental institutions”.30

27
 Koskenniemi n(13) 559
28
 ibid. 851
29
 Biermann and others (20) 29
30
 ibid. 29

 13

Contributing to this discussion on the consequences of fragmentation, Zelli and

van Asselt build on Biermann and others’ 2009 paper concerning the fragmentation of the

climate institutional arrangements outside of the UNFCCC by arguing that institutional

fragmentation of regimes leads to policy and legal precariousness.31 In their view,

fragmentation leads to higher transaction costs than are necessary and can make

coordination of various actors and institutions more difficult. Complementary to this they

point out that fragmentation is a tool used by powerful states pursuant to their domestic

political objectives. Thus, fragmentation of IL has a clear impact on government,

governance and associated disciplines of international relations and political science.32

Practical issues associated with fragmentation are too outlined by Peters. She highlights

that fragmentation is traditionally thought to create conflict between state obligations;

frustrate goals between treaty regimes; increase risks of uncertainty in law application;

and lead to the loss of unity and consistency.33 Thus, the above analysis on the

consequences of fragmentation is predominantly negative, focusing on the tension that

fragmentation can create when states are put in a position of having to choose between

regimes. While there are positives associated with the theory, the negative impacts

generally outweigh these. This shows that if this theory is still relevant, it will create

normative issues and have practical consequences for those regimes it permeates. It is

for this reason that this paper seeks to investigate and assess this theory further.

31
 Fariborz Zelli and Harro van Asselt, 'The Fragmentation Of Global Climate Governance And Its
Consequences Across Scales' (2012) 2 Wiley Interdisciplinary Reviews: Climate Change.
32
 Marija Isailovic, Oscar Widerberg and Philipp Pattberg, 'Fragmentation Of Global Environmental
Governance Architectures: A Literature Review' [2013] SSRN Electronic Journal.
33
 Peters n(1) 679

 14

Fragmentation ultimately portrays IL in a particular light where specialised regimes

operate in a predominantly separatist manner. IEL and IIL are two examples of such

regimes that have been argued to operate in separation and in a normatively contradicting

fashion.34 On environmental provisions in investment treaties, Viñuales finds that they

generally do not go far enough to prevent and resolve potential conflicts between IIL and

IEL.35 He does however justify that interaction between these two regimes is increasing,

albeit varying between countries and types of clauses. According to the 2011 OECD

report on Environmental Concerns in International Investment Agreements,

environmental considerations in investment treaties have increased since the mid 1990s,

with 89% of new investment treaties in 2008 including reference to environmental

concerns.36 Building on this report, Viñuales points out that it is more common for

language in IIAs to refer to domestic environmental policy making than focusing on the

relationship between IEL and IIL.37 The OECD study shows a trend towards

environmental integration into IIL, however this report consists of data from the mid

1990s-2008 thus raising questions as to whether these trends have continued to rise and

whether the categories of environmental references in IIAs has altered from 2008 to date.

Theories of fragmentation depict that specialised regimes such as IEL and IIL lead to

instability in the international regime over time.38 The OECD survey indicates the opposite

34
 Viñuales n(12) ; Hafner n(1) 852
35
 Jorge E Viñuales, '1 Changing winds - three signs’, Foreign Investment And The Environment In
International Law (Cambridge University Press 2015) 9
36
 Kathryn Gordon and Joachim Pohl, 'Environmental Concerns In International Investment Agreements:
A Survey' (OECD Publishing 2011).
37
 Viñuales n(25) 137
38
 Biermann and others n(20) 29; Peters n(1) 679; Meggido n(2) 116

 15

in relation to IEL and IIL, thus calling for further investigation into the relationship between

the two regimes and its impact on IL.

 As mentioned, theories of fragmentation portray fragmentation in a predominantly

negative light and highlight the conflicts that emerge as a result.39 However, Charnovitz

looks more specifically at the linkages rather than the differences between IEL and IIL in

terms of climate change and trade.40 He poses that the prospect of reducing greenhouse

gas (GHG) emissions whilst also liberalising trade and increasing investment provisions

is not incompatible. Similarly, Firger and Gerard state that “IIL and climate policy are less

at odds than they appear”, and that “recent trends in both regimes point towards

harmonization and coordination, not incongruity and conflict”. 41 However, Charnovitz

does find that the aims of both regimes can come into conflict when not properly

managed. Miles depicts how climate and investment can come into conflict as IIL

“provides a range of investor-protection guarantees to foreign investment activity,

including prohibitions on uncompensated expropriation, guarantees of national treatment,

and requirements to adhere to the fair and equitable treatment standard”.42 Miles notes

how these measures have led to an increase in investor summons to regulation of the

environment by host-states. Through this, Miles signifies that trade and investment

agreements have the power to constrain host-state climate policy making. Despite these

39
 Peters n(1) 679
40
 Charnovitz n(17) 15
41
 Daniel M. Firger & Michael Gerrard, ‘Harmonizing Climate Change Policy and International Investment
Law: Threats, Challenges and Opportunities’, Yearbook on International Investment Law & Policy 2010-
2011 (2010) 2
42
 Kate Miles, 'Arbitrating Climate Change: Regulatory Regimes And Investor-State Disputes' (2010) 1
Climate Law 64

 16

differences it is important to emphasise Charnovitz’ position that both regimes in question

share many characteristics in the aim of greater economic efficiency and enhanced public

well-being.43 Peters furthers this discussion on the coherence of regimes as she raises

the possibilities of rapprochement and the creation of common standards.44 Through this,

Peters underscores that discrepancies between regimes can be harmonised, bridging

previously irreconcilable gaps that are central to theories of fragmentation. The

accommodation of norms between specialised regimes averts issues that arise the binary

choice between legal provisions. This indicates that the integration and management of

such fragmented regimes might not be as difficult as is suggested in Guillaume’s ICJ

speech from 2002

 The debates on fragmentation above highlight its historical context and

emergence; its possible positive and negative impacts and importance on wider

understandings of coherence in IL; and finally, how theories of fragmentation portray

regimes in IL, with a particular focus on IEL and IIL. 45 The authors depict what IL

empirically looks like through the lens of fragmentation. They underline that coherence

and management would likely improve IL by resolving conflicts between specialised

regimes. However, environmental provisions in investment treaties have not yet gone far

enough to bring about such coherence.46 Fragmented regimes are described as existing

in ignorance of one another,47 thus creating coherence proves difficult. This paper seeks

43
 Charnovitz n(17) 15
44
 Peters n(1) 688
45
 Koskenniemi and Leino n(1) 554; Hafner n(1); Viñuales n(12);
46
 Viñuales n(25) 140
47
 Viñuales n(25) 134

 17

to examine the legitimacy of theories of fragmentation in IL. It will do this by looking

specifically at the supposed fragmentation between international investment law (IIL) and

international environmental law (IEL). IIL and IEL were chosen for this study as their

differences are frequently cited in research on the fragmentation of IL48, thus they provide

an appropriate platform for analysis of what fragmentation should look like and mean in

IL.

 In order to scrutinise the assumptions of fragmentation as depicted by the authors

above, this paper will take a comparative international law (CIL) approach. This particular

approach was chosen as it can be used to analyse rules and disputes across different

normative systems.49 This is done through the “identifying, analysing and explaining

similarities and differences in how actors in different legal systems understand, interpret,

apply and approach international law”.50 Insights gained through this process can help

analyse, interpret and implement the content of IL in a more consistent manner. CIL also

works to decipher how and why different approaches to IL are taken by various actors.51

This will prove important in answering this papers research question on how IEL’s

representation in IIA’s has changed over time. These comparisons will then be used to

answer the final research question focused on whether it still makes sense to consider

IEL and IIL as ‘fragmented’ or whether these regimes need to be looked at through an

48
 See Koskenniemi n(13) 248 ; Viñuales n(25) 147; Peters n(1) 688; Charnovitz n(17) 15; Firger and
Gerard n(41)
49
 Andrea Carcano, 'Uses And Possible Misuses Of A Comparative International Law Approach' (2018)
54 Questions of International Law
50
 Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier, Mila Versteeg, ‘Conceptualizing
Comparative International Law’, Comparative International Law (Oxford University Press 2018)
51
 ibid.

 18

alternative lens. Thus, the use of this method will help uncover why and how changes in

environmental considerations in IIAs have occurred. For Roberts, international lawyers

should rely on a comparative IL approach to become more humble, open, and reflexive

in their engagement with IL by looking ‘at their field through different eyes’ and ‘from

different perspectives’.52 Thus, this method should effectively contribute to answering the

research questions at hand while also incorporating broad perspectives and

understandings.

 Paris highlights the importance of “determining one's purpose” when undertaking

a comparative legal approach. This study will compare two investment treaty regimes

from different time periods. The purpose of this is to investigate whether investment

regimes should still be assumed to be fragmented from their environmental counterparts

or whether these regimes are more aligned than is traditionally speculated. Fragmentation

theories indicate that the relationship between IEL and IIL should still be fragmented and

the degree of this fragmentation should have increase over time.53 Thus, the second of

these investment treaties should be further fragmented from IEL than the first. If this

research uncovers this increased separation, theories of fragmentation will be inherently

supported. If the opposite has occurred, fragmentation theories will inevitably have fallen

short and the degree of integration and similarities between these regimes will need to be

accounted for through alternative theoretical perspectives.

52
 Carcano n(32) 23
53
 Meggido n(2) 116

 19

As mentioned in the 2011 OECD report, “an examination of the content of

environmental language in investment treaties sheds light on the policy purpose it is

designed to serve”.54 This study will focus its comparative study on two treaty regimes:

the Mexico-EC Cooperation Agreement signed in 1997, also known as the Mexico-EU

Global Agreement (MEUGA); and the Comprehensive Economic Trade Agreement

(CETA), signed in 2016. These treaties both contain investment provisions. Moreover,

they are formulated between the EU and two north American countries that are

economically comparable: Canada and Mexico. In 2019 Canada’s GDP (US$) was valued

at 1,736,425 while Mexico’s was valued at 1,268,870.55 Complementary to this, both

Mexico and Canada share similar climate profiles as major fossil fuel exporters. 56 The

comparable relational nature of these two treaty regimes and the similar country

characteristics provide the appropriate base level on which this comparative study can

take place. It is important to note that an agreement in principle was reached in April 2018

between the EU and Mexico aiming to update the existing MEUGA. This agreement “fully

implements the EU’s new approach to investment protection and investment dispute

resolution by replacing the old-style ISDS system with the new Investment Court

System”,57 following suit of CETA. This shows that certain provisions in CETA will be used

54
 Gordon and Pohl n(36) 11
55
 The World Bank, 'GDP (Current US$) - Canada, Mexico' (Data.worldbank.org, 2021)
 accessed 15
May 2021.
56
 The World Bank, 'Fuel Exports (% Of Merchandise Exports) - Canada, Mexico' (Data.worldbank.org,
2021) accessed 6 June 2021.
57
 European Commission, 'Key Features Of The EU-Mexico Trade Agreement' (European Commission,
2018) accessed 23 May 2021

 20

in a similar way in the updated agreement between the EU and Mexico. Thus, CETA is a

legitimate and valuable point of comparison within the purpose of this paper.

 To assess how IEL is represented in IIAs, the CETA and the MEUGA will be

compared in terms of the amount and type of environmental considerations included. As

noted in the OECD report there are seven different types of environmental provisions that

tend to recur in IIAs.58 These being: “general language in preambles; reserving policy

space for environmental regulation; reserving policy space for environmental regulation

for more specific, limited subject matters; provisions that clarify the understanding of the

parties that non-discriminatory environmental regulation does not constitute ‘indirect

expropriation; provisions related to the recourse to environmental experts by arbitration

tribunals; and provisions that encourage strengthening of environmental regulation and

cooperation”.59 These categories will provide the framework for treaty analysis in this

paper.

 As Habermas points out, international regimes draw on national legitimation

resources for acceptance and legitimacy. Thus, the effectiveness of the MEUGA and

CETA cannot be wholly understood through a purely textual evaluation of their content.60

To account for the degree and differences in their legitimacy, political debates in the

ratification process of the MEUGA and CETA from the Irish parliament will be compared.

58
 Gordon and Pohl n(36) 11; Viñuales n(35) 15
59
 Gordon and Pohl n(36) 11
60
 Jürgen Habermas, 'The Constitutionalization Of International Law And The Legitimation Problems Of A
Constitution For World Society' (2008) 15 Constellations.

 21

Dáil debates for the MEUGA between 1997 and 2000 and CETA between 2018 and 2021

will be used to evaluate how the political acceptability of such trade treaties with

investment provisions has altered over time in relation to environmental concerns. The

purpose of this is to assess the legitimacy of the MEUGA and CETA regimes. This will

help inform whether changes in textual environmental references in IIL has further

perpetuated fragmentation between IEL and IIL, or whether it has acted as a catalyst for

integrative action. In doing so, hopes to answer how the representation of IEL in IIAs has

changed over time and what this entails for the conceptualisation of their relationship.

Finally, the paper will consider the comparative findings alongside broader theories of

fragmentation discussed in this section to decipher whether theories of fragmentation in

IL still apply where the integration of specialised regimes occurs.

 This chapter has outlined fragmentation theory, its historical context, impacts and

projections on IL and its specialised regimes such as IEL and IIL. Fragmentation theory

suggests that the phenomenon should act lead to instability between regimes and

increase over time.61 Therefore if correct, these treaty regimes should have become

increasingly fragmented from environmental considerations and concerns. However, the

contrary has been indicated in the 2011 OECD survey. Therefore, this research will

investigate and assess whether theories of fragmentation can still be upheld in relation to

specialised regimes such as IEL and IIL.

61
 Meggido n(2) 116

 22

Chapter 3: Comparative Results

3.1 The Mexico-EU Global Agreement

 This research seeks to investigate to what degree does it still make sense to

consider IEL and IIL as ‘fragmented’. This will be done by looking more specifically at

whether international environmental law has had any effect or pull on the way

international investment and trade law has been formulated. In order to account for the

differences in environmental considerations between the MEUGA and CETA this paper

will firstly show how the environment is referred to in the MEUGA. These findings will

inform the ensuing textual comparative analysis between it and CETA.

 The environment is referred to at five different points throughout the MEUGA. It is

first referred to in the Preamble where Parties to the Treaty are required to be “mindful of

the importance that both Parties attach to the proper implementation of the principle of

sustainable development, as agreed and set out in Agenda 21 of the 1992 Rio Declaration

on Environment and Development”. Within the Rio Declaration, sustainable development

is mentioned in relation to: Principle 4 on environmental protection.62 Thus, the reference

to the Rio Declaration is a direct reference to existing international environmental law

norms and values.

 The environment is subsequently mentioned in Art. 23(2) in relation to cooperation

on energy. Within this, the Parties to the treaty are encouraged to design “more efficient

62
 Rio Declaration on Environment and Development (adopted 14 June 1992)

 23

energy generation processes, promotion the rational use of energy, supporting the use of

alternative renewable sources of energy which protect the environment, and the

promotion of recycling and processing residues for use in generating energy.” The focus

in this article is primarily on cooperation between the Parties with the aim of developing

their respective energy sectors.63 Parties should support renewable alternatives where

possible but the language used does not set out obligatory renewable energy targets.

This provision’s focus is more so on the developing of the energy sector as a whole in the

EU and Mexico and the environment is not centre stage in this regard.

 Art. 34(1) of the MEUGA stresses “the need to preserve the environmental and

ecological balances shall be taken into account in all cooperation measures undertaken

by the Parties under this Agreement”. Therefore, all trade and investment activities should

be concerned with their environmental and ecological impact under this agreement. Yet,

there is no clear channel through which the need to preserve environmental balances can

be measured in relation to trade and investment. This lack of clarity weakens the strength

of Art. 34 in the face of more specific trade and investment articles. Art. 14(d)exemplifies

this by outlining the cooperation of investment through “the development of mechanisms

for joint investments, in particular, with the small and medium-sized enterprises of both

Parties.” Similarly Art. 5 on trade outlines that the Joint Council will further outline exact

bilateral trade arrangements in line with WTO rules, in areas such as customs duties and

quantitative restrictions on traded goods, customs cooperation and customs valuation

amongst others.64

63
 Mexico-EU Global Agreement (MEUGA), Art. 23(1)
64
 MEUGA Art. 5

 24

Furthermore, Art. 34(2) outlines that the Parties “undertake to develop cooperation

to prevent degradation of the environment; to promote the conservation and sustainable

management of natural resources; to develop, spread and exchange information and

experience on environmental legislation; to stimulate the use of economic incentives to

promote compliance; to strengthen environmental management at all levels of

government; to promote the training of human resources, education in environmental

topics and the execution of joint research projects; to develop channels for social

participation”. Once again, the language used in this Article is non-binding as it simply

requires Parties to ‘undertake to develop’ such measures.

 The allusion to the 1992 Rio Declaration in the Preamble is not reiterated at any

further stage in the agreement. There are no other references to cooperation with other

multilateral agreements and no direct references to climate change in the MEUGA. There

is no line of action through which the Art. 34 on the environment is to be achieved when

compared to their more-detailed trade and investment counterparts such as Art. 5 and

Art. 14. Thus, environmental considerations are touched upon in a symbolic and weak

manner throughout the agreement; not indicating any strong correlation between IEL and

IIL, depicting and supporting their fragmented relationship at the time.

3.2 The Comprehensive Economic Trade Agreement

 In contrast to the MEUGA, environmental considerations are present in 68

paragraphs of CETA which was signed 19 years later. Environmental considerations are

 25

present in three Preambulatory clauses of CETA as well as in Chapter One in relation to

water; Chapter 4 in relation to trade transparency; twice in Chapter 8 on ‘Investment’;

twice in Chapter 19 on ‘Government Procurement’; three times in Chapter 21 on

‘Regulatory Cooperation’; in thirteen separate clauses of Chapter 22 on ‘Trade and

Sustainable Development’; in thirty-nine paragraphs of Chapter 24 on ‘Trade on the

Environment’; in Chapter 25 on ‘Bilateral Dialogues and Cooperation’; and three times in

Chapter 28 on Exceptions. This initial comparison indicates that fragmentation between

IEL and IIL has not continued to embed itself over time as was initially predicted by

theorists on fragmentation.

 In the Preamble, the State Parties recognise “that the provisions of this Agreement

preserve the right of the Parties to regulate within their territories and... to achieve

legitimate policy objectives, such as... environment”. As well as this, the Parties reaffirm

“their commitment to promote sustainable development and the development of

international trade in such a way as to contribute to sustainable development in its

economic, social and environmental dimensions”. The agreement is to be implemented

“in a manner consistent with the enforcement of their respective labour and environmental

laws and that enhances their levels of labour and environmental protection, and building

upon their international commitments on... environmental matters”. From the outset this

agreement has considerably more references to the environmental than in the MEUGA.

The quality of these references proves more valuable in tying IEL and IIL together, as

normative importance is attributed existing environmental protections.

 26

The MEUGA lacked specificity in relation to its environmental provisions. By

contrast, CETA offers a wealth of specific environmental considerations within chapter 24

on ‘Trade and the Environment’ but also within chapters on investment. This increased

specificity creates room in which these environmental considerations can actually be

achieved, thus raising their overall prominence within IIL. Importantly, chapter 8 on

Investment refers to the environment on a number of occasions. Art. 8.4(2)(d) a measure

seeking to ensure the conservation and protection of natural resources and the

environment, including a limitation on the availability, number and scope of concessions

granted, and the imposition of a moratorium or ban”. Moreover Annex 8-A provides that,

“non-discriminatory measures of a Party that are designed and applied to protect

legitimate public welfare objectives, such as health, safety and the environment, do not

constitute indirect expropriations”. These direct environmental considerations within the

investment chapter of CETA differ from the separated manner in which investment and

the environment were presented in the MEUGA.

 Pre-existing environmental law protections are explicitly upheld through Art.

24.5(1) which states “the Parties recognise that it is inappropriate to encourage trade or

investment by weakening or reducing the levels of protection afforded in their

environmental law”. Nor can a Party derogate from international environmental law, “to

encourage trade or the establishment, acquisition, expansion or retention of an

investment in its territory” under Art. 24.5(3). This expresses the need to maintain

environmental standards while also increasing trade and investment through the

agreement. Specific cooperation obligations on environmental issues are also

 27

established under Art. 24.12, whereby the Parties agree to comply with international fora

such as the WTO and OECD, the United Nations Environment Programme, and

multilateral environmental agreements (MEAs). Notably this Article provides a specific

reference to “trade-related aspects of the current and future international climate change

regime, as well as domestic climate policies and programmes relating to mitigation and

adaptation”. The inclusion of this provision aligns CETA closer to the UNFCCC regime

than the MEUGA. This shows a recognition of the beneficial role that trade and investment

can play in achieving climate ambitions, indicating a more integrated relationship between

IEL and IIL than was present in the text of MEUGA.

 The MEUGA did not lay out particular mechanisms through which its few

environmental objectives were to be achieved, thus emphasising the weak and

fragmented relationship between IEL and IIL at the time. In contrast to this, Art. 22.1(3)

of CETA outlines the Parties’ intention to “promote sustainable development through the

enhanced coordination and integration of... environmental and trade policies and

measures” and to “promote dialogue and cooperation between the Parties with a view to

developing their trade and economic relations in a manner that supports their respective

labour and environmental protection measures and standards”. This is to be achieved

through the “full use of instruments, such as impact assessment and stakeholder

consultations, in the regulation of... environmental issues and encourage businesses, civil

society organisations and citizens to develop and implement practices that contribute to

the achievement of sustainable development goals”. As well as this, a Committee on

 28

Trade and Sustainable Development is to be established under Art. 26.2.1(g).65 This

Committee is charged with the duty of ensuring the implementation of those Chapters,

“including cooperative activities and the review of the impact of this Agreement on

sustainable development, and address... any matter of common interest to the Parties in

relation to the interface between economic development, social development and

environmental protection”. Thus, CETA offers a wide range of mechanisms and options

that can be adopted by the Parties to ensure that the agreement does not impinge on

environmental standards and protections. This indicates a stronger relationship between

IEL and IIL and an awareness of acute environmental obligations than is not present in

the MEUGA.

 Once, again, CETA contrasts with the MEUGA as it repeatedly refers to MEA

obligations and other international agreements preceding CETA. These references prove

vital in establishing normative priority between specialised regimes and demonstrate a

decompartmentalisation of IL. The Parties are committed to ensure high levels of

protection for human, animal and plant life or health, and the environment in accordance

with the TBT Agreement, the SPS Agreement, the GATT 1994, the GATS, and a number

of MEAs such as the Rio Declaration; the 2002 Johannesburg Declaration on Sustainable

Development and the Plan of Implementation of the World Summit on Sustainable

Development.66 This is done to embed the priority of environmental protection throughout

CETA as demonstrated under Art. 21.4. The right to regulate is emphasised in Art. 24.3.

Within this, “the Parties recognise the right of each Party to set its environmental priorities,

65
 Comprehensive Economic Trade Agreement (CETA), Art. 22.4(1)
66
 CETA Art. 22.1

 29

to establish its levels of environmental protection, and to adopt or modify its laws and

policies accordingly and in a manner consistent with the multilateral environmental

agreements to which it is a party and with this Agreement. Furthermore, Art. 24.4(1) of

CETA recognises, “the value of international environmental governance and agreements

as a response of the international community to global or regional environmental

problems and stress the need to enhance the mutual supportiveness between trade and

environment policies, rules, and measures.” This reaffirms the Parties MEA obligations

and commitments.

 In conclusion, the analysis of CETA displays a dramatic increase in the presence

of environmental considerations throughout the agreement. These considerations are

more specific than those few considerations in the MEUGA. As well as this, CETA

incorporates numerous institutional mechanisms through which the agreement seeks to

achieve and maintain environmental protections and standards. Finally, CETA refers to

an abundance of MEAs and other international agreements such as the TBT and SPS

agreements and the 1994 GATT. This implies a more wholistic approach to treaty making

than was present in the MEUGA, and helps to address potential normative issues before

they have the chance to develop into conflict.

3.3 Parliamentary Debates

 As international regimes need to draw on national legitimation resources if they

are to be widely accepted and effective,67 the paper will now set forth its comparative

67
 Habermas n(60)

 30

findings based on Dáil Éireann debates in the lead up to Ireland’s signing of the MEUGA

and CETA. This will be done to complement the textual findings above and to assess the

differences in political acceptability and legitimacy of the agreements in light of

environmental protection concerns. This will delineate whether changes in textual

environmental considerations in IIL is reflective of a further fragmentation relationship

between IEL and IIL, or whether these changes have acted as a catalyst for integrative

action, putting fragmentation theories into question.

 The MEUGA was first mentioned in the Dáil on the 28th January 1998. There was

no further debate on the matter until the 23rd of June 1999. The 1999 debate was the

most important in the Irish ratification process. During this parliamentary sitting, it was

outlined that the MEUGA provided “wide-ranging provisions for the progressive

development of trade relations and other forms of cooperation” through “investment

promotion, financial services” in areas such as “transport, culture, agriculture, science

and technology, the environment”.68 Trade and investment regimes are often considered

as two sides of the same coin.69 This quote displays the over-lapping nature of trade and

investment, hence legitimising the use of trade agreements to analyse investment.

 The motion was supported by all Teachta Dála (TDs) present. In response, TD

Gay Mitchell points out that “Mexico is growing, particularly in its role and influence in the

North American Free Trade Association (NAFTA). People in Mexico have noted that the

NAFTA agreement is working well, so Mexico is growing in importance and we should

68
 Dáil deb 23rd Jun 1999, vol.506, no.1
69
 OECD n(11) 1

 31

urgently develop relations with it”. Issues around labour conditions were raised by

Prionsias de Rossa. He states that “there is a need to ensure that not only economic

criteria but also social criteria, particularly with regard to labour conditions, are being

applied in countries with which we have trade agreements.” Sean Barret raises his

concerns around tackling money laundering and drug trafficking in particular. The motion

was subsequently put to the Dáil and was approved.

 The MEUGA was not discussed in-depth again by the Dáil until the 23rd March

2000. At this point the Minister for foreign affairs affirms that “Ireland has been able to

accept the results of the negotiations without any difficulty and fully endorses the global

agreement and the interim agreement with Mexico, which are expected to benefit both

Mexico and the EU and the member states”.70 This particular speech confirms the ease

with which the MEUGA was accepted by the Dáil and suggests that the legitimacy of the

MEUGA was widely accepted despite its lack of environmental considerations. This is

indicative of a fragmented relationship between IEL and IIL. While social issues were

raised occasionally, environmental and investment regimes were perceived as mutually

exclusive, thus offering support from fragmentation theories that were emerging at that

time.

 CETA is a current topic of debate in the Dáil. A motion on the ratification of CETA

was supposed to take place in December 2020. However, this has since been postponed

and the agreement is still undergoing scrutiny from opposition parties and independent

70
 Dáil deb 23rd Mar 2000, vol. 516, no.5

 32

TDs. The ensuing results are based on an analysis of Dáil debates on environmental

concerns and CETA from January 2020 to May 2021. These debates fall broadly within

two categories: in relation to the investor protections; and environmental impacts of the

agreement. These will then be compared to Dáil debates on the MEUGA to determine

whether the political acceptability and legitimacy of treaties with investment provisions

has changed since the adoption of the MEUGA. The discussion in the following chapter

will attempt to account for any differences that arise, thus testing the theoretical

framework of the fragmentation of IL.

 The first category of concerns relating to the investor court system (ICS), was

evidenced by TD Paul Murphy’s argument that “this is a deal that gives corporations the

right to sue states in a parallel justice system, which only corporations and investors can

access, if governments and states take actions which impede their potential profits”.71

This argument was supported with reference to Canadian corporations that have taken

investor-state cases such as Eco Oro Minerals Corp v Colombia and Gabriel Resources

v Romania. This sentiment was reiterated by Senator Alice-Mary Higgins as she depicted

how “France diluted its climate protection laws which were meant to restrict natural gas

and oil production because of the threat of legal action by the Canadian company,

Vermillion Energy Inc”.72 She argued that “corporations are being facilitated to take cases

against us when we introduce environmental regulations, if they believe the cost of

compliance with such regulations will diminish their future profits”. 73 Both of these

71
 Dáil Éireann Deb, 5th Dec 2020, vol.1002 no.5
72
 Seanad Éireann Deb, 16th Dec 2020, vol.273, no.10
73
 Seanad Éireann Deb, 16th Dec 2020, vol.273, no.10

 33