Trump-NATO Mismatch on Paris Agreement

Trump’s decision to pull America out of the Paris Agreement on Climate Change comes just two months after the publication of NATO Report on Food and Water Security in the MENA region. Taking into consideration the amount of control US enjoys over collective decision making of NATO, Trump’s decision has made a mockery out of the Science and Technology Committee of NATO.

The report which was published in March 2017 heavily emphasises upon the interconnection between scarcity of natural resources and the rising civil conflict in the Middle East and North Africa Region (MENA). According to the report, this interconnection manifests itself in the form of humanitarian crisis, migratory pressures, and intra-state and inter-state conflicts.

It is not just NATO but even US Department of Defense considers climate change to be a threat multiplier. Former US Secretary of State Chuck Hagel said that climate change will lead to disputes over refugees and resources. In addition to this, a research paper submitted to the US National Academy of Sciences claimed climate change as one of the major reasons behind the civil war in Africa. Assenting to the choir, former UN Secretary General Ban Ki-moon called the war in Darfur as the first climate conflict. Many scholars in US universities have conducted comprehensive studies to demonstrate the impact of global climate change on armed conflict.

As the scientific and academic community, both in US and UN, is constantly focusing on understanding the impact of climate change on rising conflicts, the current decision of President Trump doesn’t shy away from disregarding the entire body of literature on the matter. As the clamour for greater environment protection grows louder, and leaders such as Modi, Macron and Merkel explicitly declaring their stance on the Paris Agreement, this move further isolates America from Europe and provides a gateway to China to muscle up its diplomatic relations with the region.

Resignation in Japanese Poetry

Murasaki Shikibu, if not dissected psychoanalytically, represents a landmark of women literacy in the history of the world. As court lady in the ancient Japanese empire of the Fujiwara period, Murasaki pens down what is seldom referred to as the first novel in the world. 
Murasaki is able to write a sort of historical account of her period due to the proliferation of Chinese language in the elite circle of Japan. Daughter of an imperial aristocrat, she was exposed to the learning of Chinese which was seen as a status symbol for the high ranking families in the region. Even though Japanese relations and actual cultural importations from China were put to halt by her time, she does create a cultural bridge between the prosperous Chinese civilisation and her own northern city of Heian Kyo (modern day Kyoto). 
 
In her massively popular The Tale of Genji, we see quite an insightful account of Japanese socio-cultural life of the early eleventh century. Out of many themes, what marks the depth of the entire novel is the spiritual element that Murasaki is able to grasp and reflect upon the circumstances of her real life. After the death of her husband we see the reflection of Buddhist ideas of impermanence and universal transience in the poetry of Murasaki who herself was a devout Buddhist.   
 
Buddhism (Tendai) came to Japan from the Chinese hills and became the dominant religious faith during Murasaki’s time. The Mahayana Buddhism and its principle of resignation from the sorrows of the world reflected heavily in the Japanese poetry of the ancient period; even though the same wasn’t followed to the letter in practice. 
 
Japanese Buddhism was fascinated with the concept of fleeting nature of the world and the same can be seen in this poem from the Nirvana Sutra:
 

Brightly coloured though the blossoms be,
All are doomed to scatter.
So in this world of ours,
Who will last forever?

So in Japanese Buddhism, the memento mori should not be a grinning skull but the images such as scattering of blossoms or the yellowing of autumn leaves, which served to remind them that all beautiful things must soon pass away.
 
Inline image 2
Izumi Shikibu 
 
The host full of women Japanese writers of the period include one of the most emotionally intellectual poetess Izumi Shikibu. In her poetry, we can find an outspoken lamentation about death and illness. This is an excerpt from a splendid and one of the heart warming poems she composed, and this one, she wrote on her death bed:
 
Yo no naka wo                                            
Nani ni tatoemu
Asaborake
Kogiyuke fune no
Ato no shiranami. 
 
Yo no naka wo
Nani nagekamashi
Yamazakura
Hana miru hodo no
Kokoro nariseba
 
Kuraki Yori
Kuraki michi ni zo
Irinubeki.
Haruka ni terase
Yama no ha no tsuki. 
 
This was translated by Arthur Waley:
 
This world of ours – 
To what shall I compare it?
To the white waves behind the boat
As it rows away at dawn
 
This world of ours – 
Why should we lament it?
Let us view it as we do the cherries
That blossom on the hills
 
Out of the dark
Into the dark path 
I must now enter:
Shine on me from afar,
Moon of the mountain fringe 
 
The same lamentation about the fleeting nature of life can be seen the sombre dispositions of Murasaki Shikibu. The Tale of Genji is heavily preoccupied with evanescence and death. She writes (in her diary) – ‘If only I had been more adoptable and respond to the pleasure of this fleeting existence with a little more youthful enthusiasm! In her verse she writes:
 
Like the waterfowl that play there on the lake
I too am floating along the surface
Of a transient world 
Apart from lamentation about the sorrows of life, we see a sense of understanding of the transience nature of the world. Another Japanese writer Sei Shonagon writes about the death of her mother – 
 
The moaning period had come to an end and as usual time was hanging heavily on hands. I took out my psaltery and, as I dusted it, plucked occasionally at the strings. Now there was no longer a taboo on playing music, and I reflected sadly on the transience of this world.
 
And finally Murasaki writes – 
 
As I walk across the bridge
That spans the Ford of Yume
I see that this world of ours too
Is like a floating bridge of dreams 
 
Japanese poetry of the ancient period cumulatively reflects the theme of resignation, an ideal so central in the teaching of Buddhism. Even though the subject matter focused on resignation, the very act of writing and creating a body of literature that is homegrown, shows a complete opposite of it. As the eleventh century marks the blossoming of Japanese indigenous culture, after centuries of Chinese and Korean imitation, the idea of democratisation of art and the aesthetics itself have something to cry and take pride at the same time. 

Spain’s Infamous “Sun Tax” – Would it stand the Test of Legality ?

Spain has imposed a support levy on the producers of solar energy in order to deflate the looming deficit in the energy sector of the country. The tax is supposed to help the government in cashing upon the growing demand for solar energy in order to run the government operated grid.

Spain’s energy sector has hit by two pronged attack

  1. The decline in the investments in renewable energy sector
  2. The rising rate of import of energy

In 2014, the government of Spain had withdrawn the subsidies from the renewable energy sector, a move which was a shift from the “Feed-In Scheme” followed by most of the European countries. Under this scheme, the producers of renewable energy are given subsidies in the form of technology cost cuts and minimum support revenue. The withdrawal was later backed by the Supreme Court which upheld the constitutionality of the same and left the renewable energy producers knocking the doors of EU and other arbitrations.

The second problem arose for the fact that Spain imports 80% of its energy supply, expending 40.5 billion Euros annually which is 4.5% of its GDP. This trend became even more unfortunate by the growing rate of renewable energy consumption in the country. People who installed solar panels not only consumed energy by themselves but also saw it as a commercial opportunity to sell the surplus electricity produced from such panels. This further concentrated the fiscal burden on the government and the tariff deficit soared to 34 billion Euros; even when 95% people still receive electricity at Tariff of Last Resort (TLR) rate which is governed by the government.

It is in this backdrop, that the Spanish government came up with a tax on Photovoltaic System (PV) owners. The key features of this policy are:

  1. PV systems up to 100 kW are prohibited from selling electricity. Instead, their owners are required to donate the extra electricity to the grid for free
  2. For PV systems up to 100 kW, the owner of the installation must be the owner of the contract with the electricity company. Moreover, before installation, permission must be sought from the electricity supplier and the Spanish government
  3. Community ownership is prohibited altogether for all sizes of self-consumption systems

 

After establishing the law, what comes next is the test of legality where the piece of legislation is made to stand the principles of rule of law, non-arbitrariness and fairness. Likewise, the sun tax needs to pass the legality test vis-à-vis Spanish Constitution and EU Directive on Renewable Energy.

The constitutionality test of sun tax attracts two provisions of the Spanish Constitution – Article 9.3 that establishes principle of legal certainty and non retroactivity of punitive provisions and Article 106.2 that puts an obligation on government to compensate individuals for losses suffered by them due to administrative action. Even though the retroactive application of PV Systems tax does violate Article 9.3 by setting a punitive provision even for those persons who had already established the PV systems, the Supreme Court’s multiple rulings denying the unconstitutionality of cut in feed-in tariff (subsidy to renewable energy sector) makes it near impossible for the Constitutional Court to have a different interpretation of Article 9.3 vis-à-vis retroactive taxation. Moreover, proving legal uncertainty in this matter would be difficult as the Electricity Sector Law 54/1997 authorizes the government to modify its energy policies as long as the modifications are objective and non-discriminatory. So the only way to move ahead with Article 9.3 is to show how the aforementioned tax does not pass the test of objectivity and non-discrimination as laid down in the Electricity Sector Law for it does not give any reasonable explanation for differentiating between the class of PV Systems Operators and other electricity suppliers.

The major bottleneck in moving Constitutional Court to strike down PV Systems tax as unconstitutional is Article 162 of the Constitution. Since the sun tax is a Royal Decree-Law (as it was ratified by the Parliament), as per Article 162, the appeal for unconstitutionality of such law can only be moved by the Prime Minister, President, Ombudsman, 50 members of Parliament or 50 members of senate. It disenfranchises the Union of PV Systems owners, people who are most severely hit by this law, to move the Constitutional court for the ultimate remedy. The only way through which they can approach the court is when the actual application of the law, for instance deciding the rate of tariff, causes some discrimination for which an appeal can be filed only to an ordinary court asking it move an appeal of unconstitutionality in the Constitutionality. This indirect procedure is highly uncertain and depends on the mercy of the ordinary court to endorse an appeal to the Constitutional court.

Since it is very difficult to strike down the PV Systems tax as unconstitutional, an effective remedy can be to approach court under a liability suit asking for compensation for the loss caused by an administrative function. However, even in that case the loss has to be real, concrete and of economic value.

Other legality test for the policy is the one posed by EU Directive 2009/28/EC. Clause 8 envisages a mandatory target of 20% contribution from renewable energy in the total energy production by member states by the year 2020. In addition to this, Clause 19 asks the member states to constantly evaluate energy policies and ensure that they are aligned to meet the aforementioned target. The sun tax policy is anything but the compliance of both of these clauses. Therefore, as of present, there are 6 petitions pending in the EU court challenging the cut in feed-in tariff and 9 petitions challenging the sun tax.

Another challenge under International Law comes from the Energy Charter Treaty to which both Spain and the EU are signatories. Article 10 of the Treaty obliges the signatories to provide fair and equitable treatment to the investors of the other contracting states, to respect the obligations entered into vis-à-vis contractors, and not have a differential treatment between foreign and domestic investors. Moreover, International Arbitration Tribunals have upheld the protection of legitimate expectation of investors to have a stable and predictable legal and administrative framework. This Article is largely in line with general protection guaranteed under Article 9.3 of Spanish Constitution. Since, this policy is already shown to be violative of Article 9.3 of Constitution; it would be safe to call it violative of Article 10 of the Treaty also. Now that the discrimination has been established, the investors can move either domestic courts or international arbitrations to challenge the discriminatory policy under Article 26 of the Treaty. Pending arbitrations such as EDF v Hungary and Vattenfall AB, and Vattenfall Europe Generation AG & Co KG v Germany, show that Article 26 can be applied in EU member states also.

 

It is quite obvious that the tax on PV Systems will have an adverse effect on the cause of environment protection. At the post COP 21 era, where commitments have been made to move towards greener and alternative sources of energy, this move comes across as a move backwards.

Instead of taxing renewable energy to support conventional energy market, the government of Spain should have accepted the voluntary or obligatory quota scheme as followed in Sweden. Under this system, producers of renewable energy are given certificates for every unit of electricity they produce. Moreover, in some areas the electricity supply chains are obligated to take a quota of electricity from renewable energy producers. Therefore, the producers of solar energy are able to sell electricity in energy market at equal price and have full access to the demand. This system ensures balancing of electricity consumption and production on the basis of market forces of demand and supply and either way the energy sector market is benefitted with revenue. This scheme will also reduce tariff deficit for the system ensures reduction of support cost as it is operated through competition.

Since there is abundance of sunlight in Spain and people are also choosing renewable sources of energy, the abovementioned scheme is a much better choice than the sun tax for the former will encourage growing foreign as well as domestic investments in the energy sector, hence reducing the deficit. On the contrary, the sun tax will repel the investors; increase the burden on government to provide support cost for conventional grid energy.

With abovementioned arguments in context, the people of Spain shouldn’t be charged for sunlight, a public resource so central to their cultural and folk practices. I hope the sun would set on the tax and the jubilation would again sing – Sale el sol.