International Obligations from the Political to the Personal: How Greece’s Suspension of Asylum Violates International Law and Basic Human Dignity

By Kristen Davis

 

In March 2016, Turkey and the EU signed an agreement (colloquially known as the “EU-Turkey Deal”) that arranged for Turkey to stop the number of refugee arrivals in the EU bloc in exchange for funds for handling the millions of refugees that Turkey hosted and would continue to host.[1] The EU-Turkey Deal predominantly aimed to stop the mass flow movement between Turkey and the Greek islands. The core tenet of the deal was that every refugee arriving irregularly (predominantly by boat, without permission of passage) to Greece would be returned to Turkey, regardless of whether or not they were seeking asylum.[2] In exchange for this return, an EU member state would resettle one Syrian refugee from Turkey for every refugee that arrived irregularly that was captured and returned to Turkey.[3]

After the signing of the deal, camps and reception centers on the Greek islands were transformed into detention centers. The Greek government changed its asylum procedures and introduced a “fast-track procedure” which allowed the rejection of an asylum application at first instance.[4] This was based on the assumption that Turkey is a safe country for asylum seekers and refugees.[5] A number of legal battles ensued after the fast track procedures were implemented. The Greek courts often found in favor of the claimant that Turkey was not safe to be returned to, due to Turkey’s repeated deportation of refugees to active conflict zones such as Syria, Iraq, and Afghanistan.

Turkey’s actions of deportation into conflict zones violates the fundamental principle of international law of non-refoulement, which mandates that “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”[6] The disagreements between the Greek courts and the EU-Turkey deal has led to three years of a standstill and the overcrowding of the Greek islands, leading to deteriorating conditions in the camps and detention centers as the asylum seekers are not allowed to leave the island. Out of the tens of thousands of arrivals, only a small percentage have been returned to Turkey[7]; the others remained trapped in appalling conditions. This illustrates the crux of the issue in the EU-Turkey deal: the return of irregularly arrived refugees to Turkey would consequently result in a complete disregard for international law.

Where the Greek islands currently host tens of thousands of refugees, Turkey has long been struggling as they are hosting millions. According to the UN refugee agency, UNHCR, Turkey hosts the largest number of refugees worldwide, with their numbers coming in at just over 4 million.[8] 3.7 million of them are Syrian refugees, and over 400,000 are refugees and asylum seekers from other States.[9]

On February 27, 2019, Turkish president Recep Tayyip Erdogan announced that it would no longer block the passage of refugees into the European Union. This decision came after over 30 Turkish soldiers were killed in a Syrian raid in Idlib.[10] Within days, thousands of refugees had amassed on the land border between Turkey and Greece, and the number of arrivals by boat across the Aegean Sea had steadily climbed. President Erdogan stated that 18,000 migrants crossed into the EU by February 29; Greek authorities stated that 10,000 refugees had been stopped from illegally entering the land border.[11] Neither official ever cited as to where these numbers were coming from. After days of clashing on the land border between Greece and Turkey, Greek Prime Minister Kyriakos Mistotakis suspended all asylum applications for one month, starting March 1, 2020.[12] Mistotakis stated that the suspension of asylum was legal under Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which states that “[i]n the event of one or more Member States being confronted by an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.”[13] Prime Minister Mistotakis did not consult with the Commission, eroding the possibility for the Commission to send a proposal to the Council and for the Council to consult with European Parliament. Furthermore, while Article 78(3) allows for provisional measures to be adopted by the Council, this article does not allow for the suspension of the internationally recognized right to seek asylum and the violation of the principle of non-refoulement.[14]

Almost immediately after Greece announced the suspension of the right to asylum, UNHCR denounced the situation at the border and Greece’s response, citing to the 1951 Convention Relating to the Status of Refugees and stating that there was nothing within that convention that provided a legal basis for the suspension of the right to asylum application.[15] In an open-letter penned by 85 non-governmental organizations (NGOs) to PM Mitsotakis, the President of the European Parliament, the President of the European Council, and the President of the European Commission, the organizations expressed their opposition that regardless of the universal agreement that Greece has the sovereign right to control its borders, the right to seek asylum is a “fundamental human right enshrined in the Universal Declaration of Human Rights and the EU Charter of Fundamental Rights.”[16]

Even amidst global denouncement from the UN, NGOs, and other States, Greece has refused to withdraw the Emergency Legislative Decree that suspended the right to asylum application. While Greece acts in violation of international law by refusing applications for asylum, the individuals most affected are subject to increasingly inhumane treatments. Thousands of refugees are fleeing war-torn areas as they fear for their lives; amass at the border between Greece and Turkey, they are met with tear gas, rubber bullets, and water cannons. As conversations have swirled between parties regarding the complete dissolution, or the reinstatement, of the EU-Turkey deal, the most urgent challenge now is the prioritization of the protection of human life. What those answers are, and how they are to be implemented cannot be assumed to be an easy task, however, the disregard for international law and human dignity should not even be considered an option.

 

 

[1] EU-Turkey Statement, 18 March 2016, EU-Turkey statement, 18 March 2016.

[2] Id.

[3] Id.

[4]Fast Track Border Procedure (Eastern Aegean Islands), https://www.asylumineurope.org/reports/country/greece/asylum-procedure/procedures/fast-track-border-procedure-eastern-aegean

[5] Id.

[6]  1951 United Nations Convention relating to the Status of Refugees, Art. 33(1)

[7] Greek Ministry for Citizen Protection Press Release of 27 January 2017 available at: http://bit.ly/2kWDwlv

[8] Global Focus: UNHCR Operations Worldwide, Turkey, http://reporting.unhcr.org/node/2544

[9] Id.

[10] 33 Turkish Soldiers Killed in Syrian Raid in Idlib, 28 February 2020, https://www.aljazeera.com/news/2020/02/turkish-soldiers-killed-air-raid-syria-idlib-200227211119672.html

[11] Syria War: Turkey Says Thousands of Migrants Have Crossed to EU, https://www.bbc.com/news/world-europe-51687160?intlink_from_url=https://www.bbc.com/news/topics/cnx753je2q4t/europe-migrant-crisis&link_location=live-reporting-story

[12] @PrimeMinisterGR, Twitter, March 1, 2020, https://twitter.com/PrimeministerGR/status/1234192922813267976; Emergency Legislative Decree, 01 March 2020

[13] TFEU, art. 78(3)

[14] UNHCR Statement on the Situation at the Turkey-EU Border, 02 March 2020, https://www.unhcr.org/news/press/2020/3/5e5d08ad4/unhcr-statement-situation-turkey-eu-border.html

[15] Id.

[16] Open Letter by 85 Organizations Regarding Rights Violations of Refugees, https://www.hrw.org/news/2020/03/06/open-letter-85-organizations-regarding-rights-violations-refugees

An Overview of the Lawsuit Against Canada Trans Mountain Pipeline

By Yiwen Hao

On the eve of Canada’s presidential election, six out of the twelve pending lawsuits against the expansion of Trans Mountain Pipeline were allowed to proceed by Canada’s Federal Court of Appeal.[1] This second challenge against the Trans Mountain Pipeline happened only a year after the first challenge which this article will focus on.

The Trans Mountain pipeline system, initiated in 1953, has been the only pipeline between Alberta and the coast of British Columbia.[2] While the pipeline has been predicted to create great value for Alberta and the country, The Trans Mountain pipeline system had previously been owned by one of the largest energy infrastructure companies in North America, Kinder Morgan.[3] On August 31, 2018, the Canada Development Investment Corporation, accountable to the Parliament of Canada, acquired the Trans Mountain pipeline system and Trans Mountain Expansion Project (collectively “Trans Mountain Pipeline”) by filing a wholly owned subsidiary named Trans Mountain Corporation. In other words, the Canadian government purchased the Trans Mountain Pipeline system and its expansion project via a crown corporation.[4] By buying the Trans Mountain Pipeline from Kinder Morgan, Prime Minister Justin Trudeau’s government faced a CA$4.5bn price tag with an additional cost of CA$6.9bn to finish the expansion.[5]

Before the government acquired the Trans Mountain Pipeline, the National Energy Board (NEB) approved a proposal by Kinder Morgan to expand the pipeline to Trans Mountain’s Pacific tidewater terminal in Burrard Inlet in 2013. The proposal immediately attracted opposition, legal challenges, and protests from environmentalists and First Nations groups because of its potential environmental impact, while Trans Mountain Pipeline moved Alberta’s heavy crude oil to British Columbia and onto Asian importers. [6] The City of Vancouver, the City of Burnaby, Tsleil-Waututh Nation, together with six other groups sued the Canadian government and its crown company. The Province of Alberta and British Columbia later joined the suit as Plaintiffs.[7]

In August 2018, the Federal Court of Appeal overturned the NEB’s approval of the pipeline expansion based on the government’s insufficient consultation with the First Nations groups. [8] Accordingly, the government re-initiated the consultation with indigenous groups impacted by the pipeline with a tight timeline.[9] On June 18, 2019 the Governor in Council directed the NEB to issue a certificate allowing for the construction and operation of the Trans Mountain Expansion Project (“the Project”).[10] The government’s reapproval of the Trans Mountain pipeline expansion was challenged by twelve lawsuits, including previous parties that won their first case in 2018.[11] As half of these lawsuits proceed in court, this article is going to overview Tsleil-Waututh Nation v. Canada, which followed the government’s first approval of the expansion project.

In Tsleil-Waututh Nation v. Canada, the City of Vancouver, the City of Burnaby, six Aboriginal groups within the meaning of the Indian Act, and one environmental group challenged the report of the National Energy Board concerning the proposed expansion of the Trans Mountain pipeline system.[12] Plaintiffs asked for judicial review of NEB’s report and Order in Council based on Plaintiff’s claims that NEB’s findings were flawed and Canada failed to fulfil the duty to consult Indigenous peoples.[13] The Federal Court of Appeal of Canada concluded that most of the claims asserted against NEB’s process and findings were without merit.[14] However, the Court found that NEB unjustifiably defined the scope of the expansion Project to exclude Project-related tanker traffic.[15] Additionally, regarding the duty to consult Indigenous people and First Nation set out by the Federal Court of Appeals, at the last stage of the consultation process prior to the decision of the Governor in Council (a stage called Phase III), Canada failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”[16] As a result, the Order in Council was quashed by the Supreme Court and the matter was remitted back to the Governor in Council.[17]

In the opinion of the Federal Court of Appeal, the Court reasoned that subsection 30(1) of the National Energy Board Act established the default rule that “[n]o company may operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity, and give leave to the company to open the pipeline[.]”[18] There is no doubt that Trans Mountain (Trans Mountain Pipeline ULC) submitted an application to the National Energy Board(NEB) for a certificate of public convenience and necessity for the Trans Mountain Expansion Project. As stated by Trans Mountain, the primary purpose of the Project is to “provide additional capacity to transport crude oil from Alberta to markets in the Pacific Rim, including Asia.”[19] However, within the Project, the number of tankers loaded at the Westridge Marine Terminal would increase from approximately five Panamax and Aframax class tankers per month to approximately 34 Aframax class tankers per month.[20] This leads to the first issue presented in the Court that the NCB was erred in not including impact resulted from this significant increase of the number of tankers.[21]

On May 19, 2016, NEB issued its report which recommended approval of the Project.[22] In its report, NEB assessed Project-related marine shipping and concluded that, notwithstanding the impacts of the Project upon the Southern resident killer whales and Indigenous cultural uses associated with them, the Project is likely to cause “significant adverse environmental effects.”[23] However, NEB defined the Project not to include Project-related marine shipping.[24] In other words, NEB excluded the effects of Project-related shipping from the definition as a designated project, and this allowed NEB to conclude that the Project was not likely to cause significant adverse effects. The Court held that NEB’s assessment of Project-related marine shipping was adequate for the purpose of informing the Governor in Council about the effects of Project-related marine shipping on the Southern resident killer whales and their use by Indigenous groups.[25] However, the Court added that NEB unjustifiably excluded Project-related marine shipping from the Project’s description.[26] It follows that the failure to apply section 79 of the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale was also unjustified.[27]

The Court’s analysis of the relevance of section 79 of the Species at Risk Act started from NEB’s exclusion of the marine shipping and ultimately concluded that section 79 of the Species at Risk Act should apply to the effects of Project-related marine shipping.[28] This is an unjustified failure to assess the effects of marine shipping under the Canadian Environmental Assessment Act, 2012.[29] Thus, the unjustified exclusion of Project-related marine shipping from the definition of the Project resulted in successive deficiencies such that NEB’s report was not the kind of “report” that would arm the Governor in Council with the information and assessments it required to make its public interest determination and its decision about environmental effects and their justification.[30] Therfore, the Governor in Council could not functionally make the kind of assessment of the Project’s environmental effects and public interest that the legislation requires.[31]

The Court accordingly granted a remedy which dealt with considering the adequacy of the Crown’s consultation process.[32] The Crown relied on NEB’s procedural power and remedial power to assess and accommodate environmental impacts in order to fulfill its duty to consult.[33] The extent or content of the duty of consultation is fact specific.[34] The Court determined that meaningful consultation is not just a process of exchanging information stating that, “[m]eaningful consultation is not intended simply to allow Indigenous peoples ‘to blow off steam’ before the Crown proceeds to do what it always intended to do.”[35] In the present case, the consultation must: balance multiple interests, including a safeguard in writing explaining the impacts of Indigenous concerns; focus on the constitutionally protected rights; and inform the Crown itself of the impact.[36] Among the dozens of deficiencies Plaintiff alleged, the Court held that Canada’s execution of Phase III of the consultation process was “unacceptably flawed and fell short of the standard[.]”[37]

As a consequence, Canada was required to engage in a “considered, meaningful two-way dialogue” with the Indigenous applicants rather than just receiving and understanding their concerns.[38] The Court analyzed that Canada’s power to dialogue under Phase III was extremely constrained because of Canada’s unwillingness to depart from NEB’s findings, and Canada’s erroneous view that it was unable to impose additional conditions on Trans Mountain.[39] On the contrary, the Court pointed out in Gitxaala that the Governor in Council necessarily has the power to impose conditions on any certificate of public convenience and necessity it directs the National Energy Board to issue.[40] After looking at the experience of each Indigenous group, the Court concluded that flaws thwarted meaningful dialogue resulting in unreasonable consultation process that failed to fulfil Canada’s duty to consult with and, if necessary accommodate the Indigenous applicants. Ultimately, the Court found that the Order from the Governor in Council should be quashed, and the issue of Project approval should be remitted to the Governor in Council for prompt redetermination.[41]

The Court then ordered NEB to reconsider on a principled basis for Project-related shipping incidental to the Project, asked the Governor in Council to redetermine the approval of the Project based on NEB’s recommendation, and requested Canada to re-do its Phase III consultation and make appropriate accommodation.[42]

However, as mentioned at the beginning of this article, it only took the Canadian government less than a year to comply with the consultation process and redirect NEB to issue a permit. It is possible that the Indigenous groups will have a long way to go to challenge this second approval.[43]

 

  1. James Munson, Court Approves Pipeline Lawsuits on Eve of Canada Election (1), BLOOMBERG LAW (Sep 4, 2019, 3:03 PM) https://news.bloombergenvironment.com/environment-and-energy/court-approves-pipeline-lawsuits-on-eve-of-canada-election.
  2. Expansion Project, TRANSMOUNTAIN.COM, https://www.transmountain.com/project-overview.
  3. History, TRANSMOUNTAIN.COM, https://www.transmountain.com/history.

 

  1. Bruce Livesey, Did Canada buy an oil pipeline in fear of being sued by China?, THE GUARDIAN (May 31st, 2018), https://www.theguardian.com/commentisfree/2018/may/31/justin-trudeau-kinder-morgan-pipeline-china-did-he-fear-being-sued.
  2. Expansion Project, TRANSMOUNTAIN.COM, https://www.transmountain.com/project-overview.
  3. Tsleil-Waututh Nation v. Canada (Attorney General), [2018] F.C.A. No. 876.
  4. Rod Nickel, Court quashes Canadian approval of Trans Mountain oil pipeline, REUTERS (August 30, 2018), https://www.reuters.com/article/us-kinder-morgan-cn-pipeline/court-quashes-canadian-approval-of-trans-mountain-oil-pipeline-idUSKCN1LF1U6.
  5. Justin Brake, Canada to restart consultations with Indigenous groups on Trans Mountain, NATIONAL NEWS (Oct. 3, 2018), https://aptnnews.ca/2018/10/03/canada-to-restart-consultations-with-indigenous-groups-on-trans-mountain/.
  6. Trudeau approves contentious Trans Mountain pipeline expansion, THE GUARDIAN (Jun. 18, 2019), https://www.theguardian.com/world/2019/jun/18/canada-trans-mountain-pipeline-expansion-approved-trudeau.
  7. James Munson, Court Approves Pipeline Lawsuits on Eve of Canada Election (1), BLOOMBERG LAW (Sep 4, 2019, 3:03 PM) https://news.bloombergenvironment.com/environment-and-energy/court-approves-pipeline-lawsuits-on-eve-of-canada-election.
  8. Tsleil-Waututh Nation v. Canada (Attorney General), [2018] F.C.A. No. 876, at paragraph 5-8.
  9. at paragraph 773
  10. Id.
  11. Id.
  12. Id.
  13. Id. at paragraph 54, 55; see also Subsection 30(1) of the National Energy Board Act, R.S.C. 1985, c. N-7.
  14. Tsleil-Waututh Nation, [2018] F.C.A. at paragraph 9.
  15. Id. at paragraph 125.
  16. Id. at paragraph 55, 56.
  17. Id. at paragraph 63.
  18. Id. at paragraph 67.
  19. Id.
  20. Id. at paragraph 125.
  21. Id. at paragraph 127.
  22. Id. at paragraph 442.
  23. Id. at paragraph 445.
  24. Id. at paragraph 451.
  25. Id. at paragraph 470.
  26. Id. at paragraph 472.
  27. Id. at paragraph 486-87.
  28. Id. at paragraph 488 (citing Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] S.C.C. 43, at paragraph 48).
  29. Id. at paragraph 494-97 (citing Haida Nation v. Briticsh Columbia, [2004] S.C.C. 73, at paragraph 61-63).
  30. Id.
  31. Id. at paragraph 557.
  32. Id. at paragraph 558-60.
  33. Id. at paragraph 562.
  34. Id. at paragraph 634.
  35. Id. at paragraph 768.
  36. Id. at paragraph 771-72.
  37. The Government of Canada has approved the Trans Mountain Expansion Project, CANADA ENERGYREGULATOR (June 18, 2019), https://www.cer-rec.gc.ca/pplctnflng/mjrpp/trnsmntnxpnsn/mdsttmnt2019-06-18-eng.html.

 

 

 

 

 

Inclusive Design 30 Years After the Passage of the ADA: The Ongoing Fight for Accessibility and the Struggles Faced in Complying with Requirements

By Kinga Fenikowska

 

July 26, 2020 will mark the 30th anniversary of the Americans with Disabilities Act (ADA).[1] When the ADA was passed and signed into law by President George H.W. Bush, millions of Americans rejoiced at the prospect of a fairer and more accessible society.[2] The Act was meant to assure wide-spread equality, by “provid[ing] clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.”[3] In fact, the Department of Justice published the 1991 ADA Standards for Accessible Design to specifically address architectural barriers.[4] These standards were later revised in 2010, and on March 15, 2012, the 2010 ADA Standards for Accessible Design went into effect.[5]

 

The 2010 standards remain enforced to date and are what today’s architects, contractors, and developers use to plan future design.[6] One would think that designing to fit pre-determined standards would not cause too much trouble for these experts, but a look at the situation shows otherwise. In an article marking the 28th anniversary of the ADA, a discussion on the application of the ADA design standards shows that there is still a struggle to meet these requirements.[7] One major criticism of the ADA is that there is no leeway in the standards.[8] A building cannot “almost” meet the requirements; it is either ADA compliant or it is not.[9] That means that if a bath fixture is even an inch outside the range permitted by the 2010 standards, the fixture, and in turn the building, fails to be ADA compliant.[10]

 

Another major complaint is that there is actually more than one compliance standard.[11] In addition to the 2010 ADA Standards for Accessible Design, architects, contractors, and developers must also comply with the Fair Housing Amendments Act of 1988 (FHA) and the ICC A117.1 Standard for Accessible and Usable Buildings and Facilities.[12]On top of that, there are different building standards that correspond to different building types, and these varying standards are promulgated by different government agencies.[13] There is also the misunderstanding that compliance with local building codes and local accessibility standards is enough to meet the 2010 ADA standards. Such widespread compliance is rarely the case, since local building requirements and ADA building requirements are distinctly separate and should be addressed individually.[14] Given that there are so many distinct standards for architects, contractors, and developers to consider, it is easy to understand why there is still a struggle to meet ADA design requirements decades after the Act was passed.

 

It is worthwhile to note that there are international rules and regulations similar to the ADA. To list a few, there isAustralia’s Disability Discrimination Act, Britain’s Equality Act, and even the UN’s Convention on the Rights of Persons with Disabilities.[15] Although international legislation concerning disability rights intends to improve the lives of people with disabilities, not all of this legislation focuses as much on addressing the physical barriers this group faces. For example, Saudi Arabia’s Disability Code of 2000 is heavily dedicated to assuring equal rights and opportunities for people with disabilities.[16] However, the only provision of Saudi law that addresses accessibility is the Saudi Building Code of 2007, and all that this code really does is give a general statement addressing accessibility without providing any specific standards.[17] Conversely, some parts of the world have adopted stronger legislation to address accessibility. One example of such legislation is the Accessibility for Ontarians with Disabilities Act of 2005, which “aims to improve the process of identification, prevention and removal of the obstacles faced by people with disabilities.”[18]

 

As demonstrated above, international legislation concerning the accessibility of people with disabilities varies in its level of focus on the issue. However, the extent to which the legislation addresses the issue is not always a fair indicator of how well a locale is working towards accessible design. In Singapore, a city-state that has not been known to apply inclusive standards, there has been a shift by the Building Construction Authority towards the implementation of Universal Design principles.[19] In fact, Singapore was praised by the UN for this implementation and for its user-friendly environment.[20]

 

According to the National Disability Authority in Ireland, Universal Design is “the design and composition of an environment so that it can be accessed, understood and used to the greatest extent possible by all people regardless of their age, size, ability or disability.”[21] Considering the success in Singapore after the application of Universal Design, these principles may hold the key to minimizing the struggles American architects, contractors, and developers have faced in complying with ADA standards. If these individuals design with the goal of making society equally accessible for both those who are able-bodied and those who are disabled, instead of designing for just one particular group of people, complying with various standards might be achieved much more naturally.

 

Aiming for Universal Design could streamline the accessible design process. Most significantly, Universal Design could potentially consolidate the factors addressed in the ADA, FHA, and ICC A117.1, acting as a bridge between the different standards, as well as between local and federal codes. Of course, architects, contractors, and developers would still need to make sure that they are complying with the ADA standards and the others listed. However, using Universal Design as a baseline and as a tool to shift thinking towards inclusive design could make the process less stressful and daunting.

 

Recent statistics show that the fight for a more accessible America is still very much worth the effort. According to the United States Census Bureau, about 1 in 5 people in the U.S. had a disability in 2010, equaling to roughly 56.7 million people.[22] That number has continued to grow; in 2016, 61 million adults alone – 1 in 4 U.S. adults – had a disability.[23] In fact, mobility was the most common disability type, with 1 in 7 adults affected.[24] But it doesn’t stop there. Statistics further show that this fight is not, and should not, be limited to just the U.S. It is estimated that by 2050, 15% of about 6.25 billion global city residents will have a disability.[25] That is a staggering 940 million people worldwide that will require and demand more accessible environments.[26]

 

So, how should the ongoing shift towards a more accessible environment look like? In an article surveying people with disabilities, one participant stated that a move towards inclusive design requires “a holistic approach and a team of individuals with disabilities to actively consult and provide feedback.”[27] This method, along with the implementation of Universal Design principles, may be the ideal approach moving forward. Once architects, contractors, and developers start thinking of accessible design as the norm, meeting standards such as those outlined in the ADA may not seems as troublesome as before. Active discussion between such individuals and people with disabilities regarding inclusive design may also make the concerns more personal. Instead of looking at the standards as requirements that simply need to be met, industry professionals may connect with the cause once they see how these considerations are affecting people in society.

 

As the statistics above show, an active effort to increase accessibility is absolutely necessary. Significant progress has been made since 1990, but as the 30th anniversary of the ADA approaches, it is clear that much more can still be done to improve the lives of those with disabilities and to streamline compliance with ADA design standards. Working towards inclusive design will only make society better than it is today, both in the U.S. and abroad, so hopefully the fight for such positive change will continue on even stronger than before.

 

[1] ADA – Findings, Purpose, and History, ADA National Network, https://www.adaanniversary.org/findings_purpose (last visited Apr. 21, 2020).

[2] Id.

[3] Americans with Disabilities Act of 1990, Pub. L. No. 101‐336, § 2, 104 Stat 327.

[4] 1991 ADA Standards for Accessible Design, United States Department of Justice Civil Rights Division, https://www.ada.gov/1991ADAstandards_index.htm (last visited Apr. 21, 2020).

[5] Id.

[6] Id.

[7] Michael J. Crosbie, Why Architects Still Struggle With Disability Requirements 28 Years After Passage of the ADA, Common Edge (Dec. 19, 2018), https://commonedge.org/why-architects-still-struggle-with-disability-requirements-28-years-after-passage-of-the-ada/.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Saba Salman, What would a truly disabled-accessible city look like?, Guardian (Feb. 14, 2018, 2:30 AM), https://www.theguardian.com/cities/2018/feb/14/what-disability-accessible-city-look-like.

[16] Mohammad A. Mulazadeh & Talal S. Al-Harbi, Design of the Built Environment and the Integration of Wheelchair Users in the Kingdom of Saudi Arabia: Commentary and Exploratory Study, 22 J. on Developmental Disabilities 121, 121 (2016), https://oadd.org/wp-content/uploads/2016/12/41023-JoDD-22-2-v10f-121-137-Mulazadeh-and-Al-Harbi.pdf.

[17] Id. at 124.

[18] Id.

[19] Salman, supra note 15.

[20] Id.

[21] What is Universal Design, National Design Authority, http://universaldesign.ie/What-is-Universal-Design/ (last visited Apr. 21, 2020).

[22] Robert Bernstein, Nearly 1 in 5 People Have a Disability in the U.S., Census Bureau Reports, United States Census Bureau (July 25, 2012), https://www.census.gov/newsroom/releases/archives/miscellaneous/cb12-134.html.

[23] CDC: 1 in 4 US adults live with a disability, CDC Newsroom (Aug. 16, 2018, 1:00 PM), https://www.cdc.gov/media/releases/2018/p0816-disability.html.

[24] Id.

[25] Salman, supra note 15.

[26] Id.

[27] Elle Hunt, ‘I feel like a second-class citizen’: readers on navigating cities with disability, Guardian (Sep. 22, 2017, 7:36 AM), https://www.theguardian.com/cities/2017/sep/22/second-class-citizen-readers-navigating-cities-disability.

China’s Belt and Road Initiative: How a Multi-Trillion Dollar Project Could Affect Global Energy Trade Agreements

By Sara Jenkins

 

The Belt and Road Initiative:

In 2013, China’s President, Xi JinPing, announced a plan to invest in various infrastructure projects along the ancient silk road route to connect Asian, African, and European countries while promoting economic stability and growth.[i] That announcement has transformed into what is known as the Belt and Road Initiative (BRI or Initiative). Overall, the BRI consists of two main initiatives: the land-based silk road economic belt and the 21stcentury maritime silk road.[ii] The silk road economic belt includes six “development corridors,” most of which connect China to other Asian, Indian, and Russian economic markets.[iii] The maritime silk road consists of the “South China Sea, Strait of Malacca, Indian Ocean, Gulf of Bengal, Arabian Sea, Persian Gulf and the Red Sea.”[iv] In 2015, the Chinese government began detailed planning of the massive projects making up this network of desired infrastructure.[v] Cost estimates for the Initiative range from $1 trillion to $8 trillion, as promised investment and exact scope of various projects are difficult to define.[vi] The timeline and size of the BRI is unclear as some projects that were started before 2013 have been added to the initiative and others are planned but lack funding.[vii]

 

Projects for the BRI include railways, pipelines, roads, ports, power plants, and urban centers for the development of energy transport, mining, communication, and tourism sectors.[viii] A total of 118 projects have been listed on the BRI website, with 99 of those projects categorized as a type of energy or transport project.[ix] These projects support BRI’s stated goal of integrating China into the world’s energy system by fostering energy cooperation with those involved in the initiative.[x] China’s National Development and Reform Commission and the National Energy Administration identified six energy cooperation principles to promote the development of resources along the BRI corridor, including openness, being market-oriented, and keeping the supply chain secure.[xi]

 

Some of the Energy Cooperation’s priorities are to facilitate unimpeded trade, encourage energy investment, improve energy production capacity, and expand the scale of energy infrastructure capacity.[xii] China plans on meeting these goals through various partnerships with other countries, cooperation with international organizations, and information sharing with specialized personnel.[xiii] China further emphasized its desire to achieve unimpeded trade by holding a thematic session on trade connectivity in 2017.[xiv] China’s Ministry of Commerce explained that it would “continue to open up its market by implementing a proactive import policy and providing more access for foreign products to enter the Chinese market.”[xv] Subsequently, China expects to implement a multilateral trading system with support from the World Trade Organization.[xvi]

 

Image Source: merics.org

Image Source: merics.org

Energy Trade Agreements:

Currently, most of the energy trade system is made up of multilateral, regional, and bilateral agreements.[xvii]Although the World Trade Organization (WTO) has one of the largest multilateral trading systems, the WTO has not had major impacts on international energy trade agreements.[xviii] Generally speaking, the World Trade Organization is involved with energy trade through the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS).[xix] Because energy trade can be defined as both goods and services, both the GATT and the GATS is used to cover different types of energy trade.[xx] The GATT also covers transportation of energy goods through pipelines or other cross-border methods under the “Freedom of Transit” article.[xxi]

 

More specifically, however, most energy trade is done through the use of regional trade agreements (RTAs).[xxii] RTAs are used to form treaties between two or more governments that cover multiple policy areas at the border and behind the border.[xxiii] RTAs have the same legal significance and recognition under international law as the GATT and the GATS, meaning that “WTO rules do not have per se any legal supremacy” over RTAs.[xxiv] The use of RTAs is increasing while the possibility of renegotiating current agreements is in debate.[xxv]

 

BRI’s Possible Effects on Energy Trade Agreements:

Some current RTAs that include specific energy provisions are: the European Union (EU), the Association of Southeast Asian Nations (ASEAN), and the Energy Charter Treaty (ECT).[xxvi] Some notable bilateral trade agreements that involve energy include the recently negotiated US-China deal, and the Partnership and Cooperation Agreement (PCA) between the EU and Russia.[xxvii] The BRI could potentially alter current agreements in place when considering the new trade areas and technological capabilities brought on by BRI investment.

 

For example, the PCA agreement between the EU and Kazakhstan may be altered or enhanced by making allowances for increased infrastructure that will give Europe more access to Kazakhstan’s oil and gas commodities. Oil and gas make up 80% of Kazakhstan’s exports, and the EU is Kazakhstan’s largest trading partner.[xxviii] Two of Kazakhstan’s main apprehensions for re-negotiating their current PCA with the EU are “technical and regulatory aspects related to trade and investment.”[xxix] The BRI’s planned railways leading from Kazakhstan to Europe would provide a technical alternative to transporting Kazakhstan’s oil without going through Russia, and a means for overcoming regulatory barriers for investment in infrastructure. Additionally, increased or re-negotiated bilateral agreements between the EU and other energy-rich nations involved in the BRI, could provide routes for the EU to lessen its dependence on Russian oil. Further, BRI impacted trade regions like ASEAN will have to take into consideration increased energy and transport infrastructure when deciding whether to re-negotiate or revisit agreements. More specifically, planned railroads from Kunming to Singapore may change the trade implications for oil or minerals from country to country in that region.

 

The United States may also be inadvertently impacted by the BRI as increased infrastructure means more competitive oil and gas markets. The recently signed U.S.-China trade deal is expected to result in an increase of energy imports by China from the United States in the amount of $52.4 billion within the next two years.[xxx]However, proposed gas pipelines included in the BRI will provide easy access for China to import Russian gas once pipeline construction is complete. Also, proposed railroads from Iran that will eventually connect to existing railways leading to China could make Iranian oil cheaper for firms in China to import. Although the U.S.-China deal promises increased energy trade, importing oil and gas from the United States is expensive for Chinese firms. U.S. oil imports to China are currently subject to a 5% tariff, while gas imports tariffs are at 25%.[xxxi] More BRI infrastructure leads to more competition in the energy market, meaning future US-China trade deals could see a decrease in Chinese imports of oil and gas.

 

As its investment in the energy sector increases, China may also consider becoming a signatory to some existing regional trade agreements, such as the ECT. Membership in the ECT may be beneficial for China as it provides a way for private investors to file arbitration actions against host countries regarding their investments.[xxxii] In fact, China has been indirectly participating in the ECT by “becoming an observer country” since 2015.[xxxiii]

 

Additionally, free trade agreements are being formed by China that would “rerout[e] supply chains and reflect growing Chinese influence.”[xxxiv] The China-Gulf Cooperation Council Free Trade Agreement is still in negotiations regarding goods and services between China and GCC member states.[xxxv] Potential or existing energy trade agreements involving or impacted by the BRI are different from the numerous investment agreements that China has already signed. Current investment agreements may also influence future trade agreements in areas of BRI projects.[xxxvi] Overall, many different possibilities exist for the alternation of existing regional trade agreements and the creation of new ones to address ongoing and planned BRI projects. Only time will tell on how successful the Initiative will be in shaping regional and bilateral trade agreements in the energy arena.

[i] President Xi Jinping Delivers Important Speech and Proposes to Build a Silk Road Economic Belt with Central Asian Countries, Ministry of Foreign Affairs of the People’s Republic of China (Sept. 7, 2013), https://www.fmprc.gov.cn/mfa_eng/topics_665678/xjpfwzysiesgjtfhshzzfh_665686/t1076334.shtml.

[ii] Belt and Road Initiative, Belt and Road Initiative (last visited April 22, 2020), https://www.beltroad-initiative.com/belt-and-road/.

[iii] Id. The six development corridors are specifically listed as: New Eurasian Land Bridge Economic Corridor (NELBEC); China/Mongolia/Russia Economic Corridor (CMREC); China/Central Asia/West Asia Economic Corridor (CCWAEC); China/Indochina Peninsula Economic Corridor (CICPEC); Bangladesh/China/ India/Myanmar Economic Corridor (BCIMEC); and China/Pakistan Economic Corridor (CPEC).

[iv] Id.

[v] Yiping Huang, Understanding China’s Belt & Road Initiative: Motivation, framework and assessment (China Economic Review, Vol. 40, 2016), https://doi.org/10.1016/j.chieco.2016.07.007.

[vi] Jonathan E. Hillman, How Big is China’s Belt and Road?, Center for Strategic and International Studies (last visited April 21, 2020), https://www.csis.org/analysis/how-big-chinas-belt-and-road.

[vii] Id.

[viii] BRI Projects, Belt and Road Initiative (last visited April 22, 2020), https://www.beltroad-initiative.com/projects/.

[ix] Id.

[x] Vision and Actions on Energy Cooperation in Jointly Building Silk Road Economic Belt and 21st-Century Maritime Silk Road, Belt and Road Portal, State Information Center (May 16, 2017), https://eng.yidaiyilu.gov.cn/zchj/qwfb/13754.htm.

[xi] Id.

[xii] Id.

[xiii] Id.

[xiv] Initiative on Promoting Unimpeded Trade Cooperation along the Belt and Road, Belt and Road Portal, State Information Center (May 22, 2017), https://eng.yidaiyilu.gov.cn/zchj/qwfb/14216.htm.

[xv] Id.

[xvi] Id.

[xvii] Rafael Leal-Arcas, Costantino Grasso & Juan Alemany Rios, Multilateral, Regional, and Bilateral Energy Trade Governance, Renewable Energy Law and Policy Review 38 (Claeys and Casteels Law Publishing Vol. 6, No. 1, 2015), https://www.jstor.org/stable/24324807.

[xviii] Richards, Timothy J., and Herman, Lawrence, Relationship Between International Trade and Energy, World Trade Organization (last visited April 20, 2020), https://www.wto.org/english/res_e/publications_e/wtr10_richards_herman_e.htm.

[xix] Rafael Leal-Arcas et al., Multilateral, Regional, and Bilateral Energy Trade Governance, at 39.

[xx] Id. at 40.

[xxi] Id. at 44.

[xxii] Id. at 49.

[xxiii] Regional Trade Agreements, The World Bank (April 5, 2018), https://www.worldbank.org/en/topic/regional-integration/brief/regional-trade-agreements.

[xxiv] Rafael Leal-Arcas et al., Multilateral, Regional, and Bilateral Energy Trade Governance, at 51.

[xxv] Regional Trade Agreements, The World Bank.

[xxvi] Rafael Leal-Arcas et al., Multilateral, Regional, and Bilateral Energy Trade Governance, at 50.

[xxvii] Id. at 62.

[xxviii] Id. at 68.

[xxix] Id.

[xxx] Andrew Fawthrop, How will the US-China trade deal affect oil and gas imports and exports? NS Energy (Jan. 16, 2020), https://www.nsenergybusiness.com/features/china-us-trade-deal-tariffs/.

[xxxi] Id.

[xxxii] Wendy Simon-Pearson, Note, One Belt, One Road, One Treaty: China’s Energy Security and the Energy Charter Treaty, 9 Geo. Wash. J. Energy & Envtl. L. 112, 113 (2018).

[xxxiii] Id.

[xxxiv] Business Reporting Desk, China’s Free Trade agreements along the Belt & Road Initiative, Belt and Road News (October 3, 2019), https://www.beltandroad.news/2019/10/03/chinas-free-trade-agreements-along-the-belt-road-initiative/.

[xxxv] Id.

[xxxvi] Id. at 112. For example, the China-Pakistan Economic Corridor pipeline is protected by a Bilateral Investment Treaty between the two countries. Id. at 112. The investment treaty may influence or strengthen relations effecting the China-Pakistan Free Trade Agreement already in place since 2009. See Business Reporting Desk, China’s Free Trade agreements along the Belt & Road Initiative.