3.2.1 International Climate Change Law
In 1992, during the Rio Summit, 154 states in the world recognized the need to work together in order to limit global warming.214 The UNFCCC and its decision-making body, the COP, were founded. First binding application of this organization was the Kyoto Protocol, which was adopted in 1997, entering into force 2005.215 The process continued at Doha conference, year 2009 in Copenhagen, year 2014 in Lima and finally in Paris in the year 2015,216 where target to the latest limit global warming to below 2 degree was made.217
UNFCCC Art. 4.2. requires that developed countries should implement policies and to take measures in order to decrease their emissions to 1990 levels. The hard GHG mitigation obligation in Art. 3 of the Kyoto Protocol required developed countries to meet their GHG targets listed in Annex B. Also, the hard obligation is found in Art. 4.2. of the Paris Agreement to “prepare, communicate and maintain nationally determined contributions.”218 A key part of the Paris outcome was the COP decision 1/CP 21 on the adoption of the Paris
212 Ministry of Economic Affairs and Empolyment 2019; European Commission: Growth: The European Sin-gle Market: Public Procurement: Legal Rules and Implementation: Thresholds 2019; APPCC (1397/2016).
213 Read more: Communication from the Commission — Corresponding values of the thresholds of Direc-tives 2014/23/EU, 2014/24/EU, 2014/25/EU and 2009/81/EC of the European Parliament and of the Council C/2017/7607. OJ 28.3.2014 L 94/143.
214 SopS 61/1994 legally binding in 1994 (The UNFCCC Convention)
215 SopS 13/2005 (The Kyoto Protocol)
216 SopS 76/2016 legally binding in 2016. (The Paris Agreement)
217 Art. 2.1a of the Paris Agreement. Read more: Lemos – Agrawal 2007, p. 44.
218 Bodansky 2017, p. 19.
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Agreement.219 It was not, however, annexed to the actual Paris Agreement. The COP decision 1/CP 21 includes the intended nationally determined contributions (INDCs),220 which were agreed upon during the Paris conference. These contributions were supposed to become nationally determined contributions (NDCs) after the Party had ratified or accepted the Paris Agreement.221 The NDCs are regularly updated and include various obligations to states. They also had an impact on global governance structure since, apart from the commitments and announcements made by governments, the Paris outcome included various stakeholders, such as cities, businesses and civil society actors.222 The agreement created a system, which encourages parties to increase their efforts to combat climate change. The measures are communicated every 5 years.223 The first NDC was communicated when the parities joined the Paris Agreement. These communications are updated by 2020. 224
The cities were invited to reduce their “emissions, build resilience and decrease vulnerability and promote regional and international cooperation.”225 Before the Paris Agreement, the climate treaties had had a limited attention to the role of the cities. The decision 1/CP 21 was, however, a turning point for the whole climate regime. 226 The non-state actors, such as cities, were now given a more central position. The voluntary bottom-up climate action potential was admitted for the first time in the text of COP 21. The Paris Agreement included obligation to implement domestic mitigation measures with the aim of achieving the NDC agreed.227 It means that the agreement has legally binding obligations for all parties to prepare, maintain and periodically update their mitigation contributions the NDCs.228 The Paris Agreement and the COP 21 decision text institutionalized the role of sub-state and non-state actors in the new architecture of the UNFCCC regime.229
The UN Secretary-General had already tried to expand climate initiatives from non-state
219 COP Decision 1/CP 21Adaptation of the Paris Agreement.
220 COP Decision 1/CP 21 Adaptation of the Paris Agreement paras. 12–21.
221 Art. 4, para. 2 of the Paris Agreement
222 Kulovesi –Vihma – Laine et al. 2016.
223 COP Decision 1/CP 21 Adaptation of the Paris Agreement, para. 23.
224 COP Decision 1/CP 21 Adaptation of the Paris Agreement, para. 22.
225 COP Decision 1/CP 21 Adaptation of the Paris Agreement, para. 134.
226 Hale, Global Environmental Politics 2016, p. 12.
227 Art. 4.2. of the Paris Agreement.
228 Ibid.
229 Hale, Global Environmental Politics 2016.
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actors earlier via a program called the Lima-Paris Action Agenda (LPAA).230 This programme included seventy initiatives, and included in total, 10 000 commitments or actions by non-state actors. 231 The Nonstate Actor Zone for Climate Action (NAZCA) platform was created.232 In NAZCA, there are 9378 cities that represent 10 696 actions in the platform. This also includes 11 Finnish cities233 and 3 Regions234. Besides of cooperative action of Global Covenant of for Climate and Energy, which is a global alliance for city climate leadership235, also individual actions are made by 6 cities. These include Espoo (has made 1 action)236, Helsinki (6 actions)237, Lahti (4 actions)238, Lappeenranta (3 actions)239, Tampere (2 actions)240 and Turku (2 actions)241.
Also, a new system to support non-state climate action was done in Paris via appointing two High-Level Champions to mobilize additional actions from non-state actors.242 A High-Level Event was mandated to be held at every COP for non-state actors in order to announce
230 COP Decision 1/CP 20 Lima call for climate action.
231 Hale 2018, p. 7. COP Decision 1/CP 21 Adaptation of the Paris Agreement, para. 116 & para. 120.
232 Hale Global Environmental Politics 2016, p. 13. COP Decision 1/CP 21 Adaptation of the Paris Agree-ment, para. 117 & para. 134.
233 Espoo, Helsinki, Joensuu, Jyväskylä, Lahti, Lappeenranta, Oulu, Tampere, Turku, Vaasa and Vantaa.
234 Kainuu Region, Helsinki-Uusimaa Region and North Carelia Region. Global Climate Action NAZCA 2019.
235 Powerful and historic response to climate change. Global Covenant Mayors for Climate and Energy 2019.
236 Espoo has committed 1 individual action. That is to reduce its community-wide CO2 emissions by 80 % from 1990 to 2050. Global Climate Action NAZCA: Espoo City Finland
237 Helsinki has committed 6 individual actions, which are to increase its energy efficiency in final energy and reduce its community energy consumption by 0.2 % by 2020 compared to 2005 levels, to increase its share of renewable energy in final energy mix in Community by 20 % by 2020, reduce local government CO2 emissions from buildings, streetlights and transport by 7.5 % from 2015 to 2025. Reduce total commu-nity-wide CO2 emissions by 30 % from 1990 to 2020 and by 39 % by 2030. Also, the target is to supply 20
% of city-wide energy production from renewable sources by year 2020. Global Climate Action NAZCA:
Helsinki City Finland
238 Lahti has committed 4 individual actions. That is to increase of its energy efficiency and reduce its Gov-ernment operations energy consumption by 15 % by 2016 compared to 2015 levels, to reduce its Community emissions by 50 % by 2025 compared to 1990 levels and reduce its local government CO2 emissions by 7 % and total community-wide CO2 emissions by 35 % from 1990 to 2020. Global Climate Action NAZCA:
Lahti City Finland
239 Lappeenranta has committed 3 actions, to reduce its Community emissions by 100 % by 2050 compared to 2015 level, reduce its Community emissions by 80 % by 2030 compared to 2007 level and reduce its Gov-ernment operations emissions by 30% by 2020 compared to 1990 emission level. Global Climate Action NAZCA: Lappeenranta City Finland
240 Tampere has 2 individual targets. It has committed to reduce its Community emissions by 40 % by 2025 compared to 1990 levels and to increase its energy efficiency and reduce Government operations energy con-sumption by 9 % by 2016. Global Climate Action NAZCA: Tampere City Finland
241 Turku has 2 individual targets. First of all, to reduce its total community wide CO2 emissions by 100 % from 2013 to 2040 and secondly supply 50 % of city-wide energy production from renewable sources by 2020. Global Climate Action NAZCA: Turku City Finland
242 COP Decision 1/CP 21, para. 121.
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new commitments and report on progress made.243 In addition, the Action Agenda was linked to the technical process in the negotiations through so called new policy options.244 This means that non-state actors can now inform national policy and contrariwise. Public procurement is one of the measures that countries can adopt and in order to achieve their commitments, but none of the climate treaties so far specify, which policies and measures a country should adopt. This has been left to the parties to decide. However, by using climate criteria in public procurement, the amount of the GHG emissions can be contributed.
3.2.2 International Trade Law
The main international legal instrument in the legal framework of public procurement is the WTOs`GPA.245 The EU246 became a WTO member on the 1st of January in 1995.247 As a party of this agreement, the GPA has had an influence on the EU legislation and the GPA had to be taken into consideration while drafting public procurement directives in 2004 and 2014.248 The GPA aims at liberalization and expansion of world trade. Two principles are crucial in this agreement, first of all discrimination found of the Art. IV of the GPA and transparency regulated in the Art. XVI of the GPA. The agreement also demonstrates rules for public procurement and there are certain limitations when it comes to the financial thresholds.249
The different possibilities for including environmental aspect to the procurement process have been defined. Art. X of the GPA requires technical specifications, which, however, are not supposed to limit trade. It allows public entities to “prepare, adopt or apply technical specifications to promote the conservation of natural resources and protect the environment”. The requirements of the product can also be related to processes or production
243 COP Decision 1/CP 21, para. 111, paras. 120–121.
244 COP Decision 1/CP 21, para. 111, para. 120 and para. 121(b).
245 The Agreement on Government Procurement (GPA) was signed in 1994 in Marrakesh and entered into force in 1996. The GPA has been revised in 2012 and revised agreement entered into force 2014. (referenced as GPA) PE492.628
246 The European Communities at that time. And later on, when the Treaty of Lisbon came into force, instead of the EC, the EU became a WTO member.
247 ECJ, Opinion 1/94 (WTO Agreements) (1994), ECR I-5267 Opinion of the Court of 15 November 1994.
Competence of the Community to conclude international agreements concerning services and the protection of intellectual property - Article 228 (6) of the EC Treaty. Opinion 1/94 European Court Reports 1994 I-05267 concluded that the Community and the member states should communicate with the WTO.
248 Dragos – Neamtu European Procurement Law Series 2014, p. 314.
249 van Asselt – van Der Grijp – Oosterhuis Climate Policy 2006, p. 222.
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methods.250 Art. III of the GPA Security and General Exceptions includes a general exception that there is a possibility to do different measures if they are “necessary to protect human, animal or plant life or health.” This exception should not, however, restrict trade.
In addition, it is possible to use special “qualification and exclusion criteria in order to”
evaluate decide suppliers` capability of accomplishing the contract according to Art. VIII of the GPA.251 It means for example, that it is possible to evaluate with the help of references, if the company is able to deliver products and services an environment-friendly manner.
Also, environmental management systems can be used. A tender can be excluded if it has infringed environmental law. In Art. XIII of the GPA the criteria for awarding of a contract is defined as follows: the most advantageous offer criteria leaves room, for example, for environmental criteria.252 The Art. XXIII of the GPA included general exception that there is a possibility to do different measures “if they are necessary to protect…human, animal or plant life or health”. This exception should not, however, restrict trade.253 To conclude it is possible to include environmental and climate-friendly criteria via technical specifications.
The definition of climate concern determines to what extent the Art. XXIII of the GPA will be used in the future litigations. Since the GDP does not cover all WTO countries the scope of climate actions is limited.