Hitotsubashi Journal of Law and Politics 48 (2020), pp.9-21. Ⓒ Hitotsubashi University

CLIMATE CHANGE AND ENVIRONMENTAL ISSUES IN THE
ECONOMIC PARTNERSHIP AGREEMENT AND THE
STRATEGIC PARTNERSHIP AGREEMENT BETWEEN THE
EUROPEAN UNION AND JAPANYUMIKO NAKANISHI＊

Content
I.
Introduction
II. Climate Change and Environmental Issues in the EPA
III. Climate Change and Environmental Issues in the SPA
IV. Analysis
V. Concluding Remarks and Recent Eﬀorts toward the Paris Agreement in JapanI.

Introduction

The European Union and Japan negotiated a free trade agreement (FTA) and in parallel acomprehensive strategic partnership agreement for ﬁve years from 2013 to 2018. They signed
the Economic Partnership Agreement (EPA)1 and the Strategic Partnership Agreement (SPA)2
on 17 July 2018. The former is a so-called “EU only agreement” which the EU can conclude
alone without participation of the EU Member States. Therefore, after the ratiﬁcation by the EU
and Japan, it entered into force on 1 February 2019. On the other hand, the latter is a mixed
agreement and needs to be ratiﬁed by the EU and all the EU Member States. As a result, its
provisional application commenced on that day.
In the beginning Japan wanted to conclude only the EPA because Japanese companies
were concerned about adverse eﬀects in the export-manufacturing ﬁelds by the conclusion of
the FTA between the EU and South Korea. On the other hand, from the outset, the EU
requested a binding agreement, covering political, global and other sectoral cooperation in acomprehensive manner.3 Since the enactment of the Treaty of Lisbon in 2009, the EU has had
its own values and those values should be applied in EU external action. According to Article
21 Treaty on the European Union (TEU), the EU shall seek to develop relations and build
partnerships with third countries that share principles such as democracy, the rule of law, andrespect of human rights.4＊
Professor of European Union Law, Graduate School of Law, Hitotsubashi University, Tokyo, Japan.
E-mail: yumiko.nakanishi@r.hit-u.ac.jp
1
For text and information about the EPA, see,https://www.mofa.go.jp/policy/economy/page6e_000013.html (last accessed on 6 December 2019).
2
For text and information about the SPA, see,https://www.mofa.go.jp/erp/ep/page22e_000707.html (last accessed on 6 December 2019).
3
20th EU-Japan Summit, Brussels, 28 May 2011, Joint Press Statement,
https://www.mofa.go.jp/region/europe/eu/joint1105.html.
4
Cf. Michael Reiterer, “EU Security Interests in East Asia: Prospects for Comprehensive EU-Japan Cooperation

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HITOTSUBASHI JOURNAL OF LAW AND POLITICS[February

The EPA comprises 23 Chapters and has about 560 pages. It is a trade agreement, but acomprehensive one. It contains not only chapters on trade in goods and customs matters, butalso chapters on intellectual property, sustainable development, regulatory practices and otheremerging issues. Therefore, it is a “new generations” agreement. The SPA is comprised of onlya preamble and 51 articles. It covers compressive issues including security such as theproliferation of weapons of mass destruction and terrorism, environment and energy, cyberspaceand outer space, information society, culture and education. The signiﬁcance of the SPA is not
small.5
To date, I have discussed the EPA or/and SPA in several papers.6 This paper focuses onenvironmental issues, in particular climate change. Climate change is one of the most important
issues in the EU. The sixth environmental action programme, entitled “Environment 2010”, wasadopted on 22 July 2002. It stipulates four priorities: climate change, nature and biodiversity,
environment and health, and natural resources and waste. After the Treaty of Lisbon of 2009,
Article 191 (1) TFEU was amended. This amendment is the insertion of the phrase “inparticular combating climate change” . Climate change is now speciﬁed explicitly as an
objective of the EUʼs environmental policy. In addition, Ursula von der Leyen, who became thepresident of the European Commission on 1 December 2019, had presented her plan “A Union
that strives for more: My agenda for Europe” on 16 July 2019 before the European Parliament.7
She proposed a European Green Deal. She also reiterated this point in her speech on theoccasion of the UN Climate Change Conference (COP 25)8 in Madrid on 2 December 2019.
The European Green Deal includes a proposal for the ﬁrst European Climate Law to enshrine
the 2050 climate-neutrality target into law. She stated that they were on track to meet theirambitious Paris Agreement goals and the 2030 target, but they needed to go further and faster
if they were truly serious about climate neutrality in 2050. She entrusted Frans Timmermans
with the role of Executive Vice-President for the European Green Deal in order to accomplish
her plan. The von der Leyen Commission presented a strong determination to deal with climatechange. On the other hand, the non-governmental organization, Climate Action Network, gave a“fossil prize” to Japan as well as Australia and Brazil at the venue of COP 25 because theJapanese Minister of Economy, Trade and Industry referred to the continuous use of coal-ﬁred
plants. Although there is seemingly an enthusiasm gap between the EU and Japan, it might beinteresting to know how climate change is stipulated in the EPA and SPA and how Japan has
handled the Paris agreement.
beyond Trade and Economics”, NFG Policy Paper No. 6/2015, p.15.
5
Cf. Julie Gilson, “The Strategic Partnership Agreement between the EU and Japan: the pitfalls of pathdependency?”, Journal of European Integration, 2016, Vol.38, No.7, pp.791-806.
6
Yumiko Nakanishi, “Economic Partnership Agreement Between Japan and the European Union and Legal Issues“,
Hitotsubashi Journal of Law and Politics, Vol.44, 2016, pp.19-30; “Characteristics of EU Free Trade Agreements in a
Legal Context: A Japanese Perspective”, European Yearbook of International Economic Law, Springer, 2017, pp.457474; “The Economic Partnership Agreement and the Strategic Partnership Agreement between the European Union andJapan from a Legal Perspective”, Hitotsubashi Journal of Law and Politics, Vol.47, 2019. pp.1-15.
7
Ursula von der Leyen, “A Union that strives for more: My Agenda for Europe”,
https: //ec.europa.eu/commission/sites/beta-political/ﬁles/political-guidelines-next-http: //copjapan.env.go.jp/cop/cop25/en/
index.htmlcommission_en.pdf, last accessed on 4 December 2019.
8
There is a special site for Japan Pavilion, COP 25 under the Ministry of the Environment, see,
http: //copjapan.env.go.jp/cop/cop25/en/index.html (last accessed on 6 December 2019); The oﬃcial twitter account of
the Ministry of the Environment, MOEJapan Climate Action.

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11The EPA and the SPA stipulate climate change and environmental issues. However, they
are diﬀerent. Why do the EPA and SPA stipulate them? Is it not enough just for the EPA to
stipulate them? I would like to provide some answers to these questions. First, I present how
climate change and environmental issues are stipulated in each agreement. Based on this, I thenclarify the reasons why these issues are stipulated by both the EPA and SPA.

II.
1.

Climate Change and Environmental Issues in the EPA

Trade and Environment

Although the EPA is an economic agreement, it does contain a chapter on sustainable
development. Chapter 16 Trade and Sustainable Development is composed of 19 articles(Article 16.1-16.19). The concept of sustainable development is understood through threecomponents: economic development, social development and environmental protection. The
EPA is concluded by the EU only on the side of Europe because the EU has exclusivecompetence for its all subject matters. The EU does not have exclusive competence in theenvironmental ﬁeld. The CJEU held that environmental protection requirements must be
integrated in all EU policies including common commercial policy, relying on Article 13 Treaty
on Functioning of the EU (TFEU) that regulates the principle of environmental integration.9
According to Article 16.1 Context and objectives of the EPA, the EU and Japan recognise “theimportance of promoting the development of international trade in a way that contributes tosustainable development” and recognise the contribution of this Agreement to the promotion ofsustainable development. Further, according to Article 16.4 (1), the EU and Japan “stress theimportance of archiving mutual supportiveness between trade and environment” and “shallexchange views and information on trade-related environmental matters of mutual interest in themeetings of the Committee on Trade and Sustainable Development” that is established under
the EPA. Moreover, the EU and Japan recognise the importance of enhancing the contributionof trade and investment to achieve the goal of sustainable development. Both are obligated to“strive to facilitate and promote trade and investment in environmental goods and services”(Article 16.5).
Trade can and should be a means to boost or support the environment, an idea that the EU
and Japan share in the EPA.
Furthermore, Article 16.12, entitled “Cooperation”, suggests some possible areas forcooperation: evaluation of the impact between trade and environment, labelling schemes, thepromotion of corporate social responsibility, trade-related aspects of multilateral environmental
agreements and the promotion of various environmental protection related issues.
2.

Right to Regulate

The right to regulate enables countries and the EU to maintain labour and environmental
standards.10 The provision addressing the right to regulate was inserted at the request of NGOs
9
10

Opinion 2/15, opinion of 16 May 2017, ECLI:EU:C:2017:376, paras. 146-147.
Cf. Lorand Bartels, “Human Rights, Labour Standards, and Environmental Standards in CETA”, in Stefan Griller,

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HITOTSUBASHI JOURNAL OF LAW AND POLITICS[Februaryand civil society in Europe.11 They were concerned about the deterioration of EU standards.
Considering such a request, the EUʼs FTAs contain the provision regarding the right to regulate.
This is covered by Article 16.2 Right to regulate and levels of protection in the EPA. The EU
and Japan have the right to determine their sustainable development policies and priorities, andcan maintain or improve the protection standards, whereas they cannot encourage trade orinvestment by relaxing or lowering their level of environmental protection.
3.

Implementation of Multilateral Environmental Agreements

In Article 16.1 (1) several international documents are speciﬁed. Among those, thefollowing documents are related to the environment: Agenda 21 adopted by the United Nations
Conference on Environment and Development on 14 June 1992, Plan of Implementation
adopted by the World Summit on Sustainable Development on 4 September 2002, the outcome
document of the United Nations Conference on Sustainable Development on 27 July 2012 andthe outcome document of the United Nations summit for the adoption of the 2030 Agenda for
Sustainable Development on 25 September 2015. The latter is a renowned SDGs (Sustainable
Development Goals).12
It shows that the EU and Japan share basic international documents for sustainable
development including the environment.
Article 16.4 is entitled “Multilateral environmental agreements”. Article 16.4 (1) provides
that the EU and Japan recognise the importance of multilateral environmental agreements as ameans of multilateral environmental governance for the international community to address
global or regional environmental challenges. More important is the implementation of thoseagreements because the implementation of environmental agreements is notoriously diﬃcult.
Therefore, the EPA has allowed the EU and Japan to reaﬃrm their commitment to eﬀectively
implement the multilateral environmental agreements (Article 16.4 (2)) in their laws, regulations
and practices. In addition, both parties are obliged to exchange information on their respective
situations and advancements regarding multilateral environmental agreements as well as theimplementation of such agreements (Article 16.4 (3)). Furthermore, Article 16.12 (g) refers to
the implementation of CITES on which both parties may cooperate through the exchange ofviews and information. According to Article 16.11, the EU and Japan “recognise theimportance of reviewing, monitoring and assessing, jointly or individually, the impact of theimplementation of this agreement on sustainable development” . It means that Article 16.4
entitled “Multilateral environmental agreements” is also included as a subject for review.
Walter Obwexer and Erich Vranes (ed.), Mega-Regional Trade Agreements: CETA, TTIP, and TiSA, Oxford University
Press, 2017, pp.202.
11
Yumiko Nakanishi, “New trade rule-making regarding sustainable development in EU FTAs with Asian countries”,
Frank Gaenssmantel and Chien-Huei Wu (ed.), Law and Diplomacy in the Management of EU-Asia Trade andInvestment Relations, Routledge, 2019, pp.229-245.
12
Keidanren (Japan Business Federation) has promoted the SDGs. Keidanren proposed “Society 5.0 (Super Smart
Society)”, which is the vision of the next stage in the evolution of human society, following its previous stages as ahunter-gatherer society (Society 1.0), agrarian society (Society 2.0), industrial society (Society 3.0), and informationsociety (Society 4.0). The vision was incorporated in the 5th Science and Technology Basic Plan in Japan. Keidanren
launched a site for SDGs in Japanese and English. See,
https://www.keidanrensdgs-world.com/ (last accessed on 6 December 2019).

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13

Although those provisions stipulate neither strict nor concrete obligations for the EU and Japan,
they can play the role of a somewhat soft peer pressure. Additionally, Article 16.14 stipulates“contact points”, so that they facilitate communications between the EU and Japan on any
matter relating to Chapter 16.
4.

Involvement of Civil Society and Dispute Settlement

The EPA stipulates the involvement of civil society. Participatory democracy is reﬂected in
the EPA. Article 16.15 obliges the EU and Japan to convene meetings of domestic advisorygroups (DAGs) on economic, social and environmental issues and to consult with DAGs. DAGs
should be a balanced representation of independent economic, social and environmental
stakeholders. DAGs can meet on their own initiative, express their opinions on theimplementation of Chapter 16 independently of the Party and submit those opinions to that
Party. Furthermore, according to Article 16.16, the EU and Japan are obliged to convene the
Joint Dialogue with civil society organisations including DAGs.
Chapter 16 Trade and Sustainable Development regulates a special dispute settlement
mechanism. The EPA confers a general dispute settlement under Chapter 21. The EU and Japan
can only use this special dispute settlement mechanism under Articles 16.17 and 16.18 (Article
16.17 (1)). A panel of experts that is convened to examine a conﬂict matter issues a ﬁnal
report. According to Article 16.18 (6), each Party shall inform the other Party and its own
DAGs of any follow-up actions or measures no later than three months after the date ofissuance of the ﬁnal report. The DAGs and the Joint Dialogue may submit their observations inthis regard to the Committee on Trade and Sustainable Development that is responsible for the
implementation of Chapter 16. Civil society is implicated in the special dispute settlement
mechanism under Chapter 16.
5.

Climate Change

The EPA is the ﬁrst EUFTA to refer to the Paris Agreement. In the EPA climate change is
speciﬁed in several articles. Article 16.4 (4) states,“4. The Parties recognise the importance of achieving the ultimate objective of the United
Nations Framework Convention on Climate Change, done at New York on 9 May 1992
(hereinafter referred to as ʻUNFCCCʼ), in order to address the urgent threat of climate change,
and the role of trade to that end. The Parties reaﬃrm their commitments to eﬀectively
implement the UNFCCC and the Paris Agreement, done at Paris on 12 December 2015 by the
Conference of the Parties to the UNFCCC at its 21st session. The Parties shall cooperate topromote the positive contribution of trade to the transition to low greenhouse gas emissions andclimate-resilient development. The Parties commit to working together to take actions toaddress climate change towards achieving the ultimate objective of the UNFCCC and the
purpose of the Paris Agreement” (emphasis by author).
The EU and Japan not only reaﬃrm their obligation to implement the UNFCCC and theParis Agreement, but are also obliged to take common measures in order to achieve theobjective of the UNFCCC and the Paris Agreement.
Furthermore, according to Article 16.5, entitled “Trade and investment favouring
sustainable development”, the EU and Japan are obliged to strive to facilitate trade and14

HITOTSUBASHI JOURNAL OF LAW AND POLITICS[Februaryinvestment in goods and services of particular relevance to climate change mitigation, such as
those related to sustainable renewable energy and energy eﬃcient goods and services. While
Japan has not yet succeeded in increasing renewable energy, it is good at producing energy
eﬃcient goods. In addition, Article 16.12 (h), entitled “Cooperation”, provides that the EU andJapan “cooperate on trade-related aspects of the international climate change regime, including
on means to promote low carbon technologies, other climate-friendly technologies and energy
eﬃciency”. Moreover, Article 18.1 under Chapter 18 Good Regulatory Practice and Regulatory
Cooperation stipulates “Nothing...shall aﬀect the right of a Party to deﬁne or regulate its own
levels of protection in pursuit or furtherance of its public policy objectives in areas such as: ...
(e) the environment including climate change”.
6.

Other Concrete Subjects

Biological diversity (Article 16.6), sustainable management of forests and trade in timber
and timber products (Article 16.7), trade and sustainable use of ﬁsheries resources andsustainable aquaculture (Article 16.8) as well as climate change are also stipulated in Chapter
16 of the EPA.
Article 16.6 refers explicitly to two international agreements, the Convention on Biological
Diversity and its protocols and the Convention on International Trade in Endangered Species ofWild Fauna and Flora. Article 16.6 (2) stipulates four obligations: ﬁrst, encouragement of theuse of products that were obtained through the sustainable use of natural resources and which
contribute to the conservation and sustainable use of biodiversity. Second, implementation ofeﬀective measures to combat illegal trade in endangered species of wild fauna and ﬂora as
listed in CITES. Third, implementation of the decisions that were adopted under theConvention on Biological Diversity and its protocols and CITES. Fourth, exchange of
information and consultation at bilateral and multilateral levels.
Japan has amended several legislations and adopted new legislation in order to fulﬁl theobligations of CITES. Important amendments are amendment of the Act for Conservation ofEndangered Species of Wild Fauna and Flora (Shu no Hozen Ho) in 2013. However, according
to NGO Traﬃc Japan, the implementation of CITES is insuﬃcient. In addition, Japan has been
criticised by international NGOs because of whaling. Although whales are subjects of CITES,
there is no explicit reference to them in the EPA.
Article 16.7 is associated with the sustainable management of forests and trade in timber
and timber products. There is no reference to international agreements. The EU and Japan are
obliged to encourage conservation and sustainable management of forests, and trade in timber
and timber products, contribute to combating illegal logging and related trade, and to exchange
information and share experience at bilateral and multilateral levels.
The EUʼs Regulation 995/2010 stipulates the obligation of operators who place timber andtimber products on the market.13 This regulation entered into force on 2 December 2010. In
Japan there is the so-called “Clean Wood Act” (Gohobassai Mokuzaito Ryutsu oyobi Riyo
Sokushin ni kansuru horitsu) (Act on Promotion of Use and Distribution of Legally-harvested
Wood and Wood Products). This legislation was submitted publicly on 20 May 2016 andentered into force on 20 May 2017. According to Article 4 (2) of the “Clean Wood Act”, “the13

OJ of the EU 2010 L295, p.23.

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15

State shall, in order to contribute to promoting the use and distribution of Legally-harvested
Wood and Wood Products, collect and provide information on the production and distributionof the Wood and Wood Products in and outside of Japan as well as information on the laws
and regulations of Japan and foreign countries concerning the sustainable use of forests, tradeand others for ensuring appropriate distribution of the Wood and Wood Products, and takeother necessary measures”.
Article 16.8 speciﬁes ﬁsheries resources and aquaculture. The EU and Japan are obliged tocomply with the United Nations Convention on the Law of the Sea, the Agreement to Promote
Compliance with International Conservation and Management Measures by Fishing Vessels on
the High Sea, and the Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea, and additionally to achieve the objectives andprinciples of the Code of Conduct for Responsible Fisheries adopted by the Conference of theFood and Agriculture Organisation. They are also obliged to adopt and implement theirrespective eﬀective tools for combating illegal, unreported and unregulated ﬁshing. Finally, theyshall promote the development of sustainable and responsible aquaculture.

III. Climate Change and Environmental Issues in the SPA
Not only the EPA, but also the SPA stipulates climate change and environmental issues. In
the EPA there is no independent article on climate change. However, there is a special article
on climate change in the SPA, Article 24.
1.

Climate Change

In the SPA there are several relevant provisions concerning climate change. According to
its preamble, climate change is considered to be one of the major global challenges which the
EU and Japan are working closely to address. Article 24 (1) addresses climate change asfollows:“1. The Parties, recognising the need for an urgent, deep and sustained reduction in global
emissions of greenhouse gases so as to hold the increase in global average temperature towell below 2°C above pre-industrial levels and to pursue eﬀorts to limit the temperature
increase to 1.5° C above pre-industrial levels, will take the lead in combating climatechange and the adverse eﬀects thereof, including through domestic and international
actions to reduce anthropogenic greenhouse gas emissions. The Parties shall cooperate,
where appropriate, under the United Nations Framework Convention on Climate Change,
done at New York on 9 May 1992 to achieve the objective of that Convention, in
implementing the Paris Agreement, done at Paris on 12 December 2015, and to strengthen
the multilateral legal frameworks. They shall also seek to enhance cooperation in otherrelevant international fora.
2. The Parties shall, with a view to promoting sustainable development, also seek
cooperation by enhancing the exchange of information and best practices and, whereappropriate, promoting coordination of policies, on issues of mutual interest in the area ofclimate change, including issues such as: (a) mitigation of climate change through various

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measures such as research and development of low-carbon technology, market-based
mechanisms and reduction of short-lived climate pollutants; (b) adaptation to the adverse
eﬀects of climate change; and (c) assistance to third countries” (emphasis by author).
First, an objective regarding climate change is stipulated concretely in “to hold theincrease in global average temperature to well below 2°C above pre-industrial levels”. Second,
the EU and Japan show their determination to take the lead in combating climate change. Third,
the use a relatively strong words in comparison with other places in the SPA is remarkable. In
other places, soft phrases such as “shall enhance cooperation”, or “shall exchange information”
are used. Here, the phrase “the parties shall cooperate” is used and in addition concrete
objectives are also stipulated to achieve the objective of the UNFCCC and to strengthen themultilateral legal framework. Fourth, the Paris Agreement is referred to explicitly. Fifth, the EU
and Japan are obliged to seek enhancement of cooperation in international fora. Sixth, Article
24 (2) also stipulates concretely how to cooperate on issues of mutual interest in the area ofclimate change.
Furthermore, climate change is related to urban policy. Article 25Urban Policy refers to
climate change in the following manner: “the Parties shall enhance the exchange of experienceand good practices in the area of urban policies, in particular to address common challenges inthis area, including those arising from demographic dynamics and climate change...” (emphasis
by author). Additionally, there are also references to climate change in Article 16 Outer Space,
Article 17 Industrial Cooperation and Article 26 Agriculture.
2.

EnergyAfter the Treaty of Lisbon, the EU was conferred with competence in the ﬁeld of energy
in Article 194 TFEU. The EPA does not have any special article for energy. However, the SPA
does. Article 26 stipulates the following:“The Parties shall endeavour to enhance cooperation and, where appropriate, close
coordination in international organisations and fora, in the area of energy, including energy
security, global energy trade and investment, the functioning of global energy markets,energy eﬃciency and energy-related technology”.
The phrase “the Parties shall endeavour to enhance cooperation” indicates a soft
obligation. Notably the EU and Japan are obliged to endeavour to enhance cooperation, whereappropriate, and close coordination in international organisations and fora.
3.

Environmental Issues
Article 23 Environment stipulates:“1. The Parties shall enhance the exchange of views, information and best practices, on
environmental policies and regulations, and enhance cooperation in areas such as:(a) Eﬃcient use of resources;(b) Biological diversity;(c) Sustainable consumption and production;(d) Technologies, goods and services that support environmental protection;

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17(e) Conservation and sustainable management of forests, including, where appropriate,
illegal logging; and(f) Other areas decided under the relevant policy dialogue.
2. The Parties endeavour to enhance cooperation in the framework of relevant international
agreements and instruments, as applicable to the Parties, as well as in international fora”(emphasis by author).
First, it is important to understand the tone of the text. The SPA is legally binding. The
word “shall” is an obligation. However, the words after “shall” ̶ “enhance the exchange ofviews, information and best practices” and “enhance cooperation” ̶ are very soft.
Second, cooperation between the EU and Japan at the international level is referred to
explicitly. The EU and Japan endeavour to enhance cooperation in international fora. The SPA
requests them to be aligned at the international level.
Article 28 Fisheries stipulates:“1. The Parties shall promote dialogue and enhance cooperation on ﬁsheries policies inaccordance with the precautionary and ecosystem approaches, with a view to promoting
long-term conservation, eﬀective management and sustainable use of ﬁshery sources basedon the best scientiﬁc information available.
2. The Parties shall enhance the exchange of views and information and promoteinternational cooperation to prevent, deter and eliminate illegal, unreported and regulatedﬁshing.
3...” (emphasis by author).
First, the phrase “the Parties shall promote dialogue and enhance cooperation” is a soft
obligation. Second, the Parties shall promote dialogue and enhance cooperation “in accordancewith the precautionary and ecosystem approaches”. The phrase “the precautionary approach” isalso found in Article 16.9 of the EPA, entitled “Scientiﬁc information” that stipulates “whenpreparing and implementing measures with the aim of protecting the environment..., the Parties
shall take account of available scientiﬁc and technical information, and where appropriate, ...theprecautionary approach”. “The precautionary approach” are softer words than “the precautionary principle” . The latter is one of the environmental principles in the EU (Article 191 (2)TFEU). It is not clear whether the basic Japanese environmental law includes the latter.14 Third,
the EU and Japan are obliged to promote international cooperation.
According to Article 29 Maritime aﬀairs of the SPA, the EU and Japan are obliged topromote dialogue, enhance mutual understanding on maritime aﬀairs and work together topromote: “(b) long-term conservation, sustainable management and better knowledge of
ecosystems and non-living resources of the seas and oceans in accordance with applicableinternational law” . Here again, a soft obligation “shall promote dialogue, enhance mutual
understanding” can be found.

14
Tadashi Otsuka, Environmental Law (Japanese), 3 ed., 2010, Yuhikaku, p.55; Otsuka pointed out that it might bepossible to interpret that Article 4 of the Japanese basic environmental law, which provides “so that interference withenvironmental conservation can be anticipatively prevented through enhancing scientiﬁc knowledge”, recognises the
precautionary principle.

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HITOTSUBASHI JOURNAL OF LAW AND POLITICS[February

Application of Provisions of the SPA

The SPA is not a so-called EU only agreement, but a mixed agreement because the EU
does not have exclusive competence for subject matters of the SPA and some competence
remains with the Member States. Therefore, the SPA requires ratiﬁcation not only by the EU,
but also by its Member States. The SPA has not been enacted. However, its provisional
application has commenced according to Article 47 (2) of the SPA. As a result, Article 24
Climate Change and Other Environment Relevant Provisions began to apply.

IV.

Analysis

In the EPA and SPA sustainability and sustainable development are repeated andemphasised. The concept of sustainable development is one of the most important concepts inthe EU. The concept is found in the provisions of the TEU and the TFEU. The EUʼs FTAs
contain a chapter on trade and sustainable development.15 Japanese basic environmental law
was put into eﬀect on 13 November 1993. Article 4 of the law stipulates “Environmental
conservation shall be promoted so that a society can be formulated where a healthy andproductive environment is conserved and sustainable development is ensured by fostering soundeconomic development with reduced environmental load, through practices on environmental
conservation such as reducing as much as possible the environmental load generated by socioeconomic and other activities, which are voluntarily and positively pursued by all the people
sharing fair burden...” (emphasis by author)16 . Japan and Japanese industry can share theconcept of sustainable development.
The EPA and the SPA specify environmental issues including climate change. However,there are some diﬀerences.
I start with the EPA.
First, the EPA is a Free Trade Agreement and a so-called “new generation” FTA.
Therefore, environmental issues are always related to trade. In fact, environmental issues in the
EPA are stipulated in Chapter 16, entitled “Trade and Sustainable Development”. The
provisions concerning environmental issues are related to trade (and investment). For example,
you can ﬁnd the phrases “mutual supportiveness between trade and environment”, “traderelated environmental matters”, “contribution of trade and investment to the goal of sustainable
development”, “facilitate and promote trade and investment in environmental goods andservices” and similar phrases. Concerning climate change, Article 16.4 (4) stipulates “theParties shall cooperate to promote the positive contribution of trade to the transition to low
greenhouse gas emissions and climate-resilient development”, and further, Article 16.5
stipulates “the Parties shall strive to facilitate trade and investment in goods and services ofparticular relevance to climate change mitigation”.
15
Cf. Verena Madner, “A New Generation of Trade Agreements: An Opportunity not to be Missed?”, in Stefan
Griller, Walter Obwexer and Erich Vranes, Mega-Regional Trade Agreements: CETA, TTIP, and TiSA, Oxford
University Press, 2017, p.307, p.312.
16
The Basic Environmental Law (English translation), see
http: //www.env.go.jp/en/laws/policy/basic/index.html; for the Basic Environmental Law, see https: //www.env.go.jp/en/
laws/policy/basic_lp.html (last accessed on 6 December 2019).

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Second, the text of the EPA is inﬂuenced by civil society in the EU. Examples of this are
the insertion of the right to regulate in Article 16.2 and the involvement of civil society under
Chapter 16 Trade and Sustainable Development.
Third, Chapter 16 stipulates not only obligations regarding environmental issues, but also
provides how to implement them. The Committee on Trade and Sustainable Development has
been established and is responsible for Chapter 16 in Article 16.13. DAGs that are consulted bygovernments and submit their views to them are constructed (Article 16.15). The system of the
Joint Dialogue with civil society is ensured (Article 16.16). The special dispute settlement for
Chapter 16 is stipulated in Articles 16.17 and 16.18, while civil society is involved in it. In
addition, Article 16.11, entitled “Review of sustainability impacts”, stipulates that the EU andJapan recognise the importance of reviewing, monitoring and assessing, jointly or individually,
the impact of the implementation of the EPA.
For the SPA, several characteristics are recognized.
First, the SPA is legally binding. This is a very important point. The SPA is not just a
political declaration. This point had been requested by the EU from the outset. Almost all
articles use the word “shall”, which means a legal obligation. It should be pointed out at thesame time that phrases after the word “shall” are soft, for example, “seek cooperation”,“enhance cooperation”, “exchange information”, “promote dialogue”, and “enhance mutual
understanding”.
Second, the SPA emphasises cooperation between the EU and Japan at the international
level. We can often ﬁnd the phrase “enhance cooperation in international fora”, “close
coordination in international organisations and fora” and similar phrases. The EU and Japan
share political principles and objectives in Article 21 TEU. The SPA is a strategic partnershipagreement based on those principles and objectives. They are obliged to cooperate ininternational fora in order to tackle global challenges and to work together as setters of joint
standards.
Third, there are special articles for climate change and energy. The EPA refers to climatechange but does not contain a special chapter on climate change. Additionally, climate change
is stipulated only in the trade-related context. The EPA does not provide energy issues at all
except for the phrases “climate change mitigation, such as those related to sustainable
renewable energy and energy eﬃcient goods and services”, even though the EU has been
conferred with competence in the ﬁeld of energy in Article 194 TFEU. On the other hand, the
SPA contains Article 24 Climate Change and Article 26 Energy. Article 24 provides details
regarding cooperation between the EU and Japan, as described above.
Fourth, regarding implementation of the SPA, there are several matters to be addressed. A
Joint Committee which is made up of representatives of the Parties is established according to
Article 42. The Joint Committee is obliged to ensure the proper functioning and the eﬀective
implementation of the SPA. The Joint Committee is given an important and decisive role in thedispute settlement mechanism under Article 43 of the SPA, while civil society is not involved
in it in any way. It is standard that the EUʼs FTAs with third countries and strategic partnershipagreements or similar political cooperation agreements have correlation. It means a violation of
the SPA will lead to the termination of the FTAs. For example, there is a correlation between
the EU-Canada Comprehensive Economic and Trade Agreement (CETA) and the SPA between
the EU and Canada. Article 28 (7) of the SPA stipulates that the Parties recognise that a
particularly serious and substantial violation of human rights or non-proliferation could also

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HITOTSUBASHI JOURNAL OF LAW AND POLITICS[Februaryserve as grounds for the termination of the CETA. However, there is no correlation between the
SPA and the EPA between the EU and Japan. Only the SPA, not the EPA, might be suspended
according to Article 43 (6) SPA.

V.

Concluding Remarks and Recent Eﬀorts toward the Paris Agreementin Japan

The EPA and the SPA specify environmental issues including climate change. The
methods on how to specify them, objectives and context of the relevant provisions diﬀer
between the EPA and the SPA. The EPA is a bilateral agreement to boost trade between parties
and contribute to sustainable development through trade, while the SPA is also a bilateralagreement and very strategic. It aims to cooperate closely in international fora to solve global
problems and to set international standards. Therefore, it is not redundant, but signiﬁcant thatboth the EPA and the SPA specify environmental issues.
Before the Japanese government concludes international agreements, it checks if and how
Japan can comply with those agreements. The government submits not only an agreement inquestion but also relevant domestic legislations for approval to the Diet. The EPA and the SPA
refer to the Paris Agreement. Both agreements oblige Japan to act in accordance with the Paris
Agreement. Japan enacted a law to promote global warming countermeasures in order tocomply with UNFCCC and the Kyoto Protocol in 1998. In 2016 the law was amended toensure the obligations under the Paris Agreement. Furthermore, an advisory panel that iscomposed of well-informed independent personalities was established under the Cabinet andissued its ﬁnal report towards the long-term strategy as a growth strategy for the Paris
Agreement on 2 April 2019. Then, the Japanese government made a cabinet decision on 11
June 2019 about Japanʼs long-term strategy under the Paris Agreement. In this document“hydrogen society” for the future is emphasised. This document, which comprises about 100
pages, is published surprisingly not only in Japanese, but also in English17 . It is also surprisingthat 800 public comments were gathered from 25 April to 16 May 2019 before the cabinet
decision and the Ministry of the Environment responded to them (this document should also be
published in English, so that international NGOs can understand the Japanese attitude toward
the Paris Agreement more precisely; If they had done so previously, Japan would not have been
the recipient of the disgraceful “fossil” prize).18
Japanʼs long-term strategy under the Paris Agreement presents measures for emissions
reduction in four sectors under its Chapter 2. The four sectors are energy, industry, transportand community and living. For example, in transport, the challenge of “Well-to-Wheel Zero
Emission” is indicated. It means that every vehicle produced by Japanese automakers will beelectriﬁed by 2050. Japan aims to realise the “Well-to-Wheel Zero Emission” policy in linewith global eﬀorts to eliminate emissions, with a focus on energy supply and vehicle
17
The Government of Japan, June 2019 (Cabinet decision, June 11, 2019), “The Long-term strategy under the Paris
Agreement”,
https://unfccc.int/sites/default/ﬁles/resource/The%20Long-term%20Strategy%20under%20the%20Paris%20Agreement.pdf(lastaccessed on 6 December 2019).
18
For public comments and response to these, see
https://www.env.go.jp/press/111783.pdf (Japanese) (last accessed on 6 December 2019).

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21

innovation.19 It is said that replacing all vehicles with electriﬁed vehicles (xEVs) can reduce gas
emissions by around 80% per vehicle, including around 90% reductions per passenger vehicle.
Currently, Japan is being criticised because of its attitude toward climate change. After the
Fukushima accident on 11 March 2011, the use of nuclear power stations is no longer an option
for Japan to reduce CO2. However, Japan has been exceptional at developing technology forenergy eﬃciency. Therefore, the Japanese government, in cooperation with the Environment
Ministry, the Ministry of Land, Infrastructure, Transport and Tourism and the Ministry ofInternational Trade and Industry, is driving forward ZEH (Net Zero Energy House) and ZEB(Net Zero Energy Building) in the context of energy eﬃciency and energy-related technology.
According to the ﬁfth Strategic Energy Plan20, which was decided by the Cabinet in July 2018,
the Japanese Government aims to achieve ZEB on average with regard to newly constructedbuildings by 2020 for non-residential buildings and by 2030 for newly constructed publicbuildings nationwide. With regard to houses, the Japanese Government aims to achieve ZEH
for more than half of the ordered stand-alone houses newly constructed by home-makers, etc by
2020 and for standard newly constructed houses by 2020 and for all newly constructed houses
on average by 2030. The government wants to support this project ﬁnancially.
The EPA has been entered into force and the relevant provisions regarding climate change
and environmental issues have begun to apply provisionally. The implementation of thoseagreements is important. I shall continue to observe how those agreements between Japan andthe EU will contribute to the resolving of climate change and environmental issues.

19
Ministry of Economy, Trade and Industry, “Japan Promotes Electriﬁed Vehicle (xEV) Strategy ahead of 2050”,
https://www.meti.go.jp/english/mobile/2018/20180911001en.html (last accessed on 6 December 2019).
20
The ﬁfth Strategic Energy Plan of Japan,
https://www.enecho.meti.go.jp/en/category/others/basic_plan/5th/pdf/strategic_energy_plan.pdf (last accessed on 6 December2019).