Box Example of effectiveness assessment the Renewable Energy and International Law Project

The Renewable Energy and International Law Project (REILP) is supported by the UK Foreign Office's Renewable Energy and Energy Efficiency Partnership, the law firm Baker & McKenzie and several universities (Yale, the Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee, and others). Other project partners include the World Conservation Union (IUCN - through its Environmental Law Programme), the United Nations Environment Programme (UNEP), the Australian and US governments, and the secretariat of the North American Free Trade Agreement (NAFTA). The project is looking at ways in which international law can be used as a tool to support the development of renewable energy, and, conversely, ways in which it may currently be impeding that development.

It has not been possible to identify, in a clear and convincing way, which initiatives work, which do not, and why. While success and failure are always relative, and conditioned upon the particular context, a successful case has a potential to serve as a model, and a failure has the potential to provide some pointers towards the need for a different approach. An assessment by an independent, respected and expertise-based institution or institutionalized processes appears imperative to find out how to make promotion of renewable energy work in practice, and not just in organizational public relations.

No international agency identifies wholeheartedly with the issue of global sustainable energy (in particular, energy conservation, energy efficiency, renewable and climate-friendly energy) and focuses on it — in terms of agenda setting, initiatives for international negotiation of principles, rules and standards, setting up a global stakeholder consultation process and relationship-building with all relevant actors, including the private sector. Sustainable energy does not have an 'international home'. This fact may contribute to uncertainty about many initiatives' lasting effect, and to the fact that many primarily look like experimental showcase activities.

The survey also provides little evidence that RE issues have permeated non-RE energy (or related) activities, for example the negotiation, amendment and application of international treaties related to trade, investment, environment and energy, or technical and financial assistance in other areas of energy. It may well be that many environmental treaties and initiatives are being promoted which in effect do not favour, and may hinder, the emergence of a viable RE activity. It is only now that the specific impact of WTO rules (favourable and unfavourable) on RE industries is being analysed in more depth. For example, renewable energy would benefit from an open cross-border energy market, but also needs protection from competition of energy produced under lax safety conditions or without internalization of external costs — the 'energy dumping' issue.

The compartmentalized nature of the response of international actors to the RE challenge may be due to their internal organization: most of these agencies are classic intergovernmental organizations with only a very limited participatory role for non-state actors (in RE, primarily energy companies, but also NGOs, banks, professional firms and associations, and academic institutions). This suggests that it would be inappropriate to call for a 'World Energy Agency' in the classic model, but rather for an international institutional platform that is 'owned' by all significant stakeholders. It should be the institutionalized form, secretariat and focus of a network that combines all relevant interest, influence, expertise, financing and regulatory power.

There is a need for instruments (both institutional and of the nature of rule- and standard-setting) that can:

• assess national/regional/global impacts of RE policies;

• exercise expertise-based 'agenda power' by launching new initiatives encompassing stakeholder consultation;

• act as forum, vehicle and secretariat for the negotiation and continuous adaptation of principles, rules and standards for designing RE policies, assessing RE initiatives and integrating RE objectives into other relevant organizational activities.

In particular, trade is an issue that cannot be dealt with successfully by a national or sectoral approach. In consultation between the custodians of trade rules (mainly the WTO, the NAFTA secretariat, Asian and Latin American trade organizations, and the European Union), it is necessary to develop, based on already available precedent, a set of guidelines and principles that helps to apply available trade rules (non-discrimination — justification for non-protectionist, guideline-covered renewable energy; subsidies; dumping and state aids — against energy produced below international standards) in a way that facilitates cross-

border RE trade, combats RE-based protectionism (by purely national schemes) and creates a truly level playing field in the competition between RE and conventional energy and energy products.

The functional deficits of existing actors can be summarized as follows:

• Area of activity. There do not seem to be real gaps in substance (e.g. market reform, capacity-building, specific RE sources) covered by existing actors, but current coordinated research is insufficient to fill the information gaps that prevent coordinated policy-making. It is important to keep all options open, including through support of research into future sources that may at present be in a very early stage of development.

• Assessing RE potential. Here a clear gap can be identified. The numerous existing initiatives and projects indicate what is being done to promote RE, but this activity hides the fact that many countries do not have any RE activities, or may not even be aware of the specific RE potential present within their territory. Whereas many institutions try to influence decision-makers, none is specifically mandated to consult governments on realizing the RE potential of their country.

• Multi-stakeholder participation. No single institution has been found where all stakeholders are represented and are able to contribute effectively in terms of their expertise and agenda-setting capacity.

• Structures and finance. Many activities are designed around specific studies, projects, reforms or experiments. There does not seem to be an institution that is able to act on RE on a global scale, independent of projects, and with stable, possibly governmental, funding.

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