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University of Virginia School of Law




There were seventeen international investment agreements (“IIAs”) signed around the world in 2012, and each one of them contained some provision relating to the protection of the environment. In comparison, no investment treaty signed before 1985, and fewer than ten percent of treaties signed between 1985 and 2001, contained any reference to the environment at all. Environmental language has become increasingly common in bilateral investment treaties (“BITs”), and to an even greater degree in other IIAs, such as free trade agreements (“FTAs”). The legal implications of the integration of environmental law and norms into investment law treaties have yet to be fully explored, though there has been significant literature on trade and environment “linkages.” This paper seeks to give a U.S.-centric overview of the recent trends in the inclusion of environmental provisions in BITs and FTAs. In particular, this paper focuses on the recognition and integration of multilateral environmental agreements (“MEAs”) into the text of investment agreements. The analysis of this integration takes two approaches. In the first, the international legal implications of the inclusion of MEAs into other international treaties is aided by the concept of “legalization,” first introduced in 2000 by Abbot et al., in which the “hard” or “soft” nature of a legal norm is determined by the degree to which it possesses three characteristics: obligation, precision, and delegation. The second approach of the paper asks how and why these MEAs came to be prioritized in the trade negotiations of the United States. The answer to the question is found by applying theories of international negotiation, primarily Robert Putnam’s theory of “two-level games,” to the history of the development of environmental provisions of trade and investment agreements.

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