A real partnership for development? sustainable development as treaty objective in european economic partnership agreements and beyond

Journal of International Economic Law

Volumn 13, Issue 1, 2010, Pages 139-180

  Grosse Ruse Khan, Henning ^a  

^a MAX PLANCK INSTITUTE FOR INTELLECTUAL PROPERTY COMPETITION AND TAX LAW   (Germany)

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[No Author keywords available]

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EID: 77950360154     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgp044     Document Type: Article

References (207)

1. EC Commission/DG Trade, CARIFORUM - EU Agreement: An Overview (Brussels, 2008) 3.
2. The group of CARIFORUM countries includes Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, the Dominican Republic, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, Suriname, and Trinidad and Tobago-acting as individual states. While both Haiti and Guyana initially did not sign CEPA, Guyana signed on 20 October. The Agreement is provisionally applied as of 29 December 2008.
3. Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part, (CEPA) signed in Bridgetown (Barbados) on 15 October 2008, Official Journal of the European Union (OJ) 2008 L 289/I/3 (accessed 17 September 2009).
4. Partnership Agreement between Members of the African, Caribbean and Pacific Group of States and the European Community and its Member States (Cotonou Agreement) OJ 2000 L 317/3 (accessed 17 September 2009), amended OJ 2005 L 287/1.
5. See Panel Report, EEC - Member States' Import Regime for Bananas, DS32/R, 3 June 1993 unadopted
6. and Panel Report, EEC - Member States' Import Regime for Bananas, DS/38/R, 11 February 1994, unadopted.
7. For a detailed analysis of the EC's trade relationship with ACP countries, see Lorand Bartels, 'The Trade and Development Policy of the European Union' (2007) 18 EJIL 715-756
8. The agreement covers not only traditional trade-related matters like investment, competition, intellectual property and public procurement, but also has a chapter on environment, social aspects (labour standards) and the protection of personal data; see CEPA (n 3), Part II, Titles I-III and especially IV, as well as Parts III and V.
9. See the heading of Part I of the EC - CARFORUM EPA which contains the objectives and principles of the agreement (emphasis added).
10. See Article 1(a) and 3 CEPA.
11. EC Commission/DG Trade, (n 1) 3.
12. See generally Norman Girvan, Implications of the Cariforum-EC EPA (Extended version of an article in the Trinidad and Tobago Review of 7 January 2008) ;
13. Oxfam International, Partnership or Power Play? How Europe should bring development into its trade deals with African, Caribbean, and Pacific countries, Oxfam Briefing Paper (April 2008) (accessed 17 September 2009).
14. Vaughan Lowe, 'Sustainable Development and Unsustainable Arguments' in Alan Boyle and David Freestone (eds), Sustainable Development and International Law: Past Achievements and Future Challenges (OUP, Oxford 1999) 30-31
15. 'Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development...' (emphasis added). See WTO, Legal Texts - The Uruguay Round Agreements, Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) (accessed 17 September 2009). This language differs significantly from the original GATT preamble that encouraged GATT contracting parties to engage in a 'full use of the resources of the world'.
16. See WTO, Ministerial Declaration, Ministerial Conference - Fourth Session, Doha, Qatar (14 November 2001), WTO Doc. WT/MIN(01)/DEC/W/1, para 6 (accessed 17 September 2009).
17. North American Free Trade Agreement (NAFTA) (accessed 17 September 2009).
18. Partnership Agreement between Members of the African, Caribbean and Pacific Group of States (ACP countries) and the European Community and its Member States (Cotonou Agreement) (accessed 17 September 2009).
19. The NAFTA preamble states that 'the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, resolved to: (. . .) PROMOTE sustainable development (. . .) HAVE AGREED as follows: (. . .)' (emphasis in the original).
20. The second paragraph of Article 1 of the Cotonou Agreement explains that 'the partnership shall be centred on the objective of reducing and eventually eradicating poverty consistent with the objectives of sustainable development and the gradual integration of the ACP countries into the world economy'.
21. On the role of sustainable development in EC law, see Mario Prost, 'Is European Law Becoming More Sustainable?' in Marie-Claire Cordonier Segger and Markus Gehring (eds), Sustainable Development in World Trade Law (Kluwer Law International, The Hague 2005), 329, 411-59;
22. Nico J Schrijver, 'The Evolution of Sustainable Development in International Law: Inception, Meaning and Status' (2007) Recueil des Cours, Vol.329, 217-412 at 314-316
23. See Consolidated Version of the Treaty on the European Union, OJ 2006 C 321 E, 5-36 (accessed 17 September 2009).
24. See Article 2(3), (5) of the EU Treaty, as amended by the Lisbon Treaty-see OJ 2007 C 306/12, 10-42 (at 13) (accessed 17 September 2009).
25. See Consolidated Version of the Treaty Establishing the European Community, OJ 2006 C 321 E, 37-331 -however, based on the amendments effected by Article 2(1) of the Lisbon Treaty, the EC Treaty is re-named as 'Treaty on the Functioning of the European Union'; see n 21 above, 42.
26. See Article 2 of the EC Treaty, (n 22). However, under Article 2(11) of the Lisbon Treaty, Articles 1 and 2 of the EC Treaty are repealed; see n 21 above, 45.
27. See in particular (the insofar not amended new version of) Article 6 on integrating environmental protection into EC policies: 'Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities, in particular with a view to promoting sustainable development'. However, the former Article 177 on development cooperation with third countries (which states that 'Community policy in the sphere of development cooperation, which shall be complementary to the policies pursued by the Member States, shall foster: the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them (. . .)') has been replaced by the new Article 188 D providing that 'Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action'. These principles and objectives in turn are now set out in Article 10(A) and (B) of a new Chapter 1 of the EU Treaty containing 'General Provisions on the Union's External Action. Under the new Article 10(A), they include very similar language as the former Article 177-by aiming to: '(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty'; and to '(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development'.
28. See Prost (n 19, 456-7) who argues that history has shown that most often balancing has resulted in a 'primacy of the market' and that progress towards sustainability in the EC remains slow.
29. See United Nations, Our Common Future - Report of the World Commission on Environment and Development, UN Doc. A/42/427-Annex (4 August 1987), chapter 2, I.
30. See the Separate Opinion of Judge Weeramantry in decision of the International Court of Justice (ICJ) in the case Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, ICJ Rep 1997, 88-119, at 97-110 (accessed 17 September 2009), who refers to agricultural practices of tribes in ancient in Africa, the Americas, China, Europe and Sri Lanka as well as Islamic legal traditions.
31. Alhaji BM Marong, 'From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development' (2003-2004) 16 Georgetown International Environmental Law Review 21-76 at 22.
32. The term was first used in 1713 by Hans Carl von Carlowitz in Saxony (Freiberg). See Lexikon der Nachhaltigkeit .
33. For an instructive timeline of the term sustainable development, see (accessed 17 September 2009).
34. See United Nations, Our Common Future, (n 26). The Commission was headed by Gro Harlem Brundtland, the former Norwegian Prime Minister. It could build its work on the 1971 'Founex Report' on the relationship between environment and development which was then recognised in the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, calling for the integration of environmental concerns in development decision-making (see, in particular, the principles 13 and 14 as well as principles 2-5, 8, 9, 11, 12).
35. See United Nations, Our Common Future, (n 26), para 1 (emphasis added).
36. Our Common Future, (n 26) Ibid.
37. Marie-Claire Cordonier Segger and Markus Gehring, 'Introduction' in Marie-Claire Cordonier Segger & Markus Gehring (eds), Sustainable Development in World Trade Law (Kluwer Law International, The Hague 2005) 1-24, at 5 (emphasis added).
38. In the Brundtland Report, this key principle of 'merging environment and economics in decision making' appears inter alia as one of seven 'critical objectives' that follow from the principle of sustainable development: (see United Nations, Our Common Future, (n 26), para 72: The common theme throughout this strategy for sustainable development is the need to integrate economic and ecological considerations in decision making').
39. United Nations Conference on Environment and Development (UNCED), Rio de Janeiro, 3-14 June 1992. The Summit was intended to reach agreement on a Draft Convention on Environmental Protection and Sustainable Development-but negotiations at Rio made it impossible to adopt a binding convention. For a comprehensive discussion on the results of the Rio Summit, see Philippe Sands, 'International Law in the Field of Sustainable Development' (1994) 65 British Yearbook of International Law 303-381, at 336.
40. Agenda 21 comprises a wide-ranging plan of action for the achievement of sustainable development worldwide (accessed 17 September 2009).
41. United Nations, Report of the United Nations Conference on Environment and Development - Annex I: Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 Vol. I (12 August 1992) (accessed 17 September 2009).
42. See United Nations, Rio Declaration, (n 36) principle 4: 'In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it' and principle 25: 'Peace, development and environmental protection are interdependent and indivisible'.
43. United Nations Framework Convention on Climate Change, ILM 1992, Vol.XXXI, 849 - UN Doc. FCCC/INFORMAL/84 GE.05-62220 (E) 200705 (1992) (accessed 17 September 2009). Sustainable development again appears as a key concept which is addressed in the Preamble (recognising the aim to 'achieve sustainable social and economic development') and in the Conventions' objectives in Article 3, including the goal 'to enable economic development to proceed in a sustainable manner' and further recognising that 'the Parties have a right to, and should, promote sustainable development'.
44. United Nations Convention on Biological Diversity, ILM 1992, Vol.XXXI, 818 http:// www.cbd.int/doc/legal/cbd-un-en.pdf>. The CBD describes its objectives in Article 1 as 'the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources'. The Convention further defines 'Sustainable use' in Article 2 as 'the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations'. Finally, Article 10 on 'Sustainable Use of Components of Biological Diversity' contains the principle of integration in form of a binding legal obligation for each Contracting Party 'as far as possible and as appropriate' to 'integrate consideration of the conservation and sustainable use of biological resources into national decision-making'.
45. The Conference website including all documentation is available at (accessed 17 September 2009).
46. Johannesburg Declaration on Sustainable Development, adopted at the 17th plenary meeting of the World Summit on Sustainable Development, on 4 September 2002 (accessed 17 September 2009).
47. The Johannesburg Plan of Implementation (accessed 17 September 2009) builds on the achievements made since the Rio Summit and aims to expedite the realization of the remaining goals. To this end, states committed themselves to undertaking concrete measures promoting the integration of the three components of sustainable development-economic development, social development and environmental protection-as interdependent and mutually reinforcing pillars.
48. Johannesburg Declaration, (n 41) 5.
49. The work of the Committee, in particular its two reports (accessed 17 September 2009).
50. International Law Association, Declaration of Principles of International Law Related to Sustainable Development, Resolution 3/2002 adopted at the 70th Conference of the International Law Association, held in New Delhi, India, 2-6 April 2002 (UN Doc. A/ CONF.199/8, 9 August 2002).
51. For an analysis of the principles in the ILA Declaration, see Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices & Prospects (OUP, Oxford 2004) 96-171.
52. International Law Association, (n 45) at 7.2.
53. Compare also International Law Association, Searching for the Contours of International Law in the Field of Sustainable Development, Final Report - Committee on Legal Aspects of Sustainable Development (New Delhi, 2002) 7-11. The report discusses the principle of integration as one of the relevant general principles and those related to the other six mentioned in the Declaration as specific principles.
54. GabCikovo-Nagymaros Project (Hungary v Slovakia), Judgment of 25 September 1997, ICJ Rep 1997, 7-84 .
55. Arbitration Regarding the Iron Rhine ("Ijzeren Rijn") Railway (Belgium v the Netherlands), Permanent Court of Arbitration - Award of the Arbitral Tribunal (24 May 2005) (accessed 17 September 2009).
56. See WTO Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (adopted 6 November 1998) and WTO Panel Report, United States - Shrimp - Recourse to Article 21.5 by Malaysia, WT/DS58/RW (adopted 15 June 2000).
57. GabCikovo-Nagymaros Project, (n 48) 78 (para 140).
58. See also the discussion in Marie-Claire Cordonier Segger, 'Integrating Social and Economic Development and Environmental Protection in World Trade Law' in Marie-Claire Cordonier Segger and Markus Gehring (eds), Sustainable Development in World Trade Law (Kluwer Law International, The Hague 2005) 129-86, 135.
59. Ijzeren Rijn, (n 49) para 59 (emphasis added).
60. WTO Appellate Body Report, US - Shrimp, (n 50) para 153.
61. US - Shrimp Ibid para 129 (fn.107).
62. WTO Panel Report, US - Shrimp - Recourse to Article 21.5 by Malaysia, (n 50) para 5.54 (fn.202).
63. International Law Association, (n 47) 7.
64. See Philippe Sands, (n 34) 336; Schrijver (n 19) 362.
65. See Marong (n 28) 31, 34, 56.
66. On the references to an integrative approach in these documents see section 1. above. Compare also Alan Boyle and David Freestone, 'Introduction' in Alan Boyle and David Freestone (eds), International Law and Sustainable Development (OUP, Oxford 1999) 3), who emphasise the 'package deal' between environmental and developmental concerns, as well as Philippe Sands (n 34) 317-318
67. Separate Opinion of Judge Weeramantry in the case Gabcikovo-Nagymaros Project, (n 27) 89.
68. Gabcikovo-Nagymaros Project, Ibid 91-92
69. Declaration on the Right to Development, adopted by General Assembly Resolution 41/128 (adopted 4 December 1986) Article 1.
70. Compare the comprehensive understanding of development explicit in the Preamble to the Declaration on the Right to Development which states that 'development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom'.
71. Separate Opinion of Judge Weeramantry in the case Gabcikovo-Nagymaros Project, (n 27) 90.
72. See Agenda 21, (n 35), Chapter 8 - Integrating Environment and Development in Decision-Making, at 8.19.
73. Scholars have equally defined sustainable development law as the 'corpus of international legal principles and treaties which address the areas of intersection between international economic law, international environmental law and international social law aiming toward development that can last', see Marie-Claire Cordonier Segger and Ashfaq Khalfan, (n 45) 46-47
74. Compare Sébastien Jodoin, 'The Principle of Integration and Interrelationship in Relation to Human Rights and Social, Economic and Environmental Objectives' CISDL Legal Working Papers (Montreal, 2005), at 5 (accessed 20 January 2009) who points to the UN system and its integrative aims of solving international problems of economic, social, cultural and humanitarian character by cooperation between states (see Article 1(3), (4) of the UN Charter) as a prominent manifestation of this phenomenon.
75. In Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion of 21 June 1971, ICJ Rep 1971, 16-66, at 31 the ICJ affirmed that: 'an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of its interpretation.'
76. Philippe Sands ('Sustainable Development: Treaty, Custom, and the Cross-fertilization of International Law' in Alan Boyle and David Freestone (eds), International Law and Sustainable Development (OUP, Oxford 1999) at 49) notes further Article 31(3)(c) of the Vienna Convention on the Law of Treaties as an expression of the principle of integration. In the context of WTO rules as a separate body of international (economic) law. See also Joost Pauwelyn, 'The Role of Public International Law in the WTO: How Far Can We Go?' (2001) 95 AJIL 535-578, who stresses the need to integrate WTO rules and 'other' international law. Indeed, the WTO Appellate Body confirmed in its first decision that WTO law as a specific rule-system cannot be understood in 'clinical isolation from public international law' (WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline (US - Gasoline), WT/DS2/AB/R (adopted 20 May 1996) 16).
77. Compare Philippe Sands (n 34, 381) who concludes that 'the emergence of the international law in the field of sustainable development should herald the disappearance of the self-contained and contempartmentalised worlds of environmental and economic law'. See also Marie-Claire Cordonier Segger, (n 52, 150) who suggests relying on the sustainable development objective to guide decisions at the interstices of distinct regimes.
78. In light of the uncertainties described below, Nico J Schrijver observes that 'the question of integration is indeed possibly the greatest challenge in the entire project of sustainable development policies'; see Schrijver (n 19) 285. Thomas Wälde notes that the beauty of the concept of sustainable development lies 'in the fact that it is a "principle for all seasons": it neither imposes insufferable deprivation of consumption on the present nor disregards the needs of the future. It encompasses humanity, but also nature. It appears to solve irresolvable contradictions. Everybody - from the liberal advocates of the global economy to fundamental environmentalists - can fill the concept with his/her meaning';
79. see Thomas Wälde, 'Natural Resources and Sustainable Development: From "Good Intentions" to "Good Consequences'" in Nico J Schrijver and F Weiss (eds) International Law and Sustainable Development (Martinus Nijhoff Publisher, Leiden Boston 2004) 119.
80. See, eg Jodoin (n 66, 5) who defines the principle in general terms as implying 'the need for States to take into account the interdependence of economic, environmental, social and human rights issues and entails the necessity of reconciling, accommodating and harmonising the priorities, concerns and norms emanating from these four main subject-matter areas'. Schrijver describes it as the interrelationship between the pursuit of poverty eradication and development, environmental protection and the respect for human rights and the integrated manner in which the objectives in these areas are to be tackled (n 19, 362-3).
81. See Centre for International Sustainable Development Law (CISDL), The Principles of International Law Related to Sustainable Development (Montreal, 2005), at 19 (accessed 17 September 2009) and Marie-Claire Cordonier Segger and Ashfaq Khalfan (n 45) 103.
82. See Marie-Claire Cordonier Segger and Ashfaq Khalfan (n 45, 106) who note that the principle of integration 'is applied in ways that are extremely specific to the context and purpose of the international instrument or commitment in question'.
83. Article 6 CBD makes national measures for conservation and sustainable use of biological diversity dependent on the individual circumstances: 'Each Contracting Party shall, in accordance with its particular conditions and capabilities: (a) Develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans or programmes which shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party concerned; and (b) Integrate, as far as possible and as appropriate, the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies' (emphasis added).
84. As one of the convention's principles, Article 3(4) UNFCCC states: 'The Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change' (emphasis added).
85. International Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (UNCCD), UN Doc.A/AC.241/27 (12 September 1994) .
86. Under Article 10 UNCCD, national action programmes to identify the factors contributing to desertification and practical measures necessary to combat desertification and mitigate the effects of drought shall specify the respective roles of government, local communities and land users and the resources available and needed. According to Article 10(2)(b), they shall, inter alia 'allow for modifications to be made in response to changing circumstances and be sufficiently flexible at the local level to cope with different socio-economic, biological and geo-physical conditions' (emphasis added). Further relevant provisions supporting a case specific approach to integration are Article 2(a) and Article 17(1)(b) UNCCD.
87. Compare also Sébastien Jodoin (n 66) 9.
88. Such international obligations for example lie in the concept of 'necessity' in the general exceptions from trade obligations contained in Article XX GATT, Article XIV GATS which the WTO Appellate Body has interpreted to require the application of the least trade restrictive, equally effective and reasonably available measure to implement a public policy objective recognised in those provisions.
89. Boyle and Freestone (n 59) 16.
90. See the further discussion in Section II.B.2.
91. Jodoin (n 66) 9. See also Vaughan Lowe (n 12, 36) who focuses on judicial decision-making processes; and Boyle and Freestone (n 59, 17) who refer to ample state practice as well as the ICJ decision in Gabcikovo - Nagymaros Project (n 48) as evidence that the principle of integration should be understood as procedural integration requiring development decisions to be the outcome of a process which integrates economic, social and environmental concerns and so promotes sustainable development.
92. See Agenda 21 (n 35) Chapter 8.
93. The chapters focuses on means to improve decision-making processes towards integration and emphasises the development of domestic priorities and domestically formulated policies in accordance with national needs and policies (see 8.3, 8.4, 8.13-8.16).
94. See ILA Declaration (n 45, 7.2 and 7.3) which implicitly focuses on the process of resolving conflicts to achieve integration.
95. ILA Declaration (n 45) 7.3.
96. Chapter 8 (especially 8.2-8.26) contains non-binding but detailed suggestions on the domestic implementation of integrated decision-making. Chapter 39 addresses the development of international law on sustainable development, in particular by treaty-making 'to promote the integration of environment and development policies through effective international agreements or instruments' (see especially 39.1-39.2).
97. Agenda 21, (n 35) 8.7.
98. Ibid at 8.1.
99. Compare Boyle and Freestone (n 59, 7) who note that the principle is primarily interpreted, applied and achieved at the national level. Important exceptions are of course regional integration projects such as the European Union where states have diverted significant powers and competences to independent regional institutions that can take direct action.
100. Ibid 16.
101. For an overview on the debate, see Marong (n 28) 44-64.
102. See Section III for details.
103. Johannesburg Declaration (n 41) 5.
104. Segger and Khalfan (n 45) 104.
105. Ibid..
106. Ijzeren Rijn, (n 49) para 59.
107. Lowe (n 12) 23-24
108. Boyle and Freestone (n 59) 16.
109. Lowe (n 12) 31.
110. Ibid 34.
111. Marong (n 28) 52.
112. The guidance function is further confirmed in the overall conclusion of their book 'Sustainable Development in World Trade Law' where Marie-Claire Cordonier Segger and Markus Gehring state: 'In conclusion, there is clearly considerable potential for the objective of sustainable development to guide the gradual emergence of a global economy.' See Marie-Claire Cordonier Segger and Markus Gehring, Conclusions, in Marie-Claire Cordonier Segger and Markus Gehring (eds), Sustainable Development in World Trade Law (Kluwer Law International, The Hague 2005) 631-642 at 642.
113. WTO Appellate Body Report, US - Shrimp, (n 50) para 153.
114. The Appellate Body confirms the primary function of the concept of sustainable development as 'integrating economic and social development and environmental protection'; see US - Shrimp, (n 50), para 129 (fn.107).
115. For a detailed discussion of the Appellate Body's reliance on the concept of sustainable development in US - Shrimp and other cases on trade and environment, see Gabrielle Marceau, 'A Call for Coherence in International Law' (1999) 33 JWT 87-152.
116. WTO Appellate Body Report, US - Shrimp, (n 50) para 131 where the Appellate Body concludes that 'recalling the explicit recognition by WTO Members of the objective of sustainable development in the preamble of the WTO Agreement, we believe it is too late in the day to suppose that Article XX(g) of the GATT 1994 may be read as referring only to the conservation of exhaustible mineral or other non-living natural resources'. It so allowed an understanding of the relevant general exception clause to cover the protection of living (as well as non-living) natural resources and hence opened the door for a vast range of environmental protection measures to fall under Article XX (g) GATT.
117. I owe thanks to one of the anonymous reviewers who emphasised this point.
118. See art 26 of the VCLT, done at Vienna on 23 May 1969, United Nations, Treaty Series, Vol.1155, 331, which states that 'every treaty in force is binding upon the parties to it and must be performed by them in good faith' (accessed 17 September 2009).
119. Boyle and Freestone (n 59) 16.
120. International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law (UN Doc A/CN.4/L.702) (18 July 2006) para 12 (accessed 17 September 2009).
121. See, eg the ICJ decision in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion of 9 July 2004, ICJ Rep (2004) 136-203, at 81 (accessed 17 September 2009) where the court explicitly refers to the rules expressed in Article 31 and 32 VCLT as 'customary international law' as well as Ijzeren Rijn, (n 49) para 45 where the court of arbitration points to the continuous use of the VCLT rules on interpretation by the ICJ and other international tribunals.
122. On the status and applicability of the Articles 31-33 VCLT generally see Richard Gardiner, Treaty Interpretation (OUP, Oxford 2008) 12-18
123. See, eg WTO Appellate Body Report, United States - Gasoline, above n 67, at 16
124. and WTO Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (adopted 19 December 1997) para 46.
125. On the use of the VCLT in the WTO see Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body (OUP, Oxford 2009);
126. Asif H Qureshi, Interpreting WTO Agreements (CUP, Cambridge 2006)
127. Michael Lennard, 'Navigating by the Stars: Interpreting WTO Agreements' (2002) 5 JIEL 17-89.
128. This follows from the holistic view that interpretation should be a single combined operation where all elements of a given case and their interaction should be considered together; see Yearbook of the International Law Commission, The International Law Commission's Commentary on Article 27 to 29 of its Final Draft Articles on the Law of Treaties, Vol.II (1966) 220.
129. Ian McTaggart Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, Manchester University Press, Manchester 1984) 153.
130. The notion of good faith here is primarily an expression of the principle of pacta sunt servanda which in turn embodies the principle of effectiveness, see Yearbook of the International Law Commission, (n 109) 219 and Sinclair (n 110) 119-120
131. See Yearbook of the International Law Commission, (n 109) 220, Van Damme (n 108) 50.
132. This objective method can be contrasted to the subjective approach which focuses on determining the actual intentions of parties (at the time of conclusion of the treaty-thus relying heavily on its preparatory material) as well as the teleological approach which ab initio determines the treaties objective to interpret provisions in a way which best suits this objective. Van Damme (n 108, 36) rightly notes the limited practical value of such a distinction: also the textual approach examines the parties intentions and the treaties objective-as far as they are expressed in its text.
133. As expressed in the ILC Commentary on the respective VCLT provisions where the Commission stresses that 'starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties'.-see Yearbook of the International Law Commission, (n 109), at 220, 221.
134. WTO Appellate Body Report Japan - Taxes on Alcoholic Beverages, WT/DS8/AB/R (adopted 4 October 1996) 10 (footnotes omitted-the Appellate Body is in part citing the ICJ).
135. Yearbook of the International Law Commission, (n 109) 221.
136. Compare Robert Howse, Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence, in J Weiler (ed), The WTO, the EC and the NAFTA - Towards a Common Law of International Trade (OUP, Oxford 2000) 35-70.
137. Some argue that the ordinary meaning cannot be truly established in abstract and thus is always the meaning which takes 'into account all the consequences which normally and reasonably flow from the treaty text' (Sinclair (n 110) 121). In this view, the first two layers of modelling almost merge.
138. In this metaphor, good faith considerations of course function as an equally important device shaping the final meaning-acting to ensure that treaty obligations are given effect (pacta sunt servanda).
139. See Gardiner (n 107) 29-49 who describes distinct approaches of international courts and tribunals. The rules of the Vienna Convention further do not attempt to be complete or exhaustive: From the vast amount of principles of logic and analysis available one must choose those which suit the individual circumstances; see Yearbook of the International Law Commission, above n 109, at 219;
140. Sinclair (n 110) 153.
141. See Yearbook of the International Law Commission, (n 109) 220, 219-20;
142. further Sinclair (n 110) 117-9;
143. Gardiner (n 107) 36.
144. See Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (OUP, Oxford 2008) 344-5;
145. compare also the commentary of the ILC (Yearbook of the International Law Commission, (n 109) 221) citing the ICJ Advisory Opinion of 3 March 1950 on the Competence of the General Assembly for the Admission of a State to the United Nations: 'If the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter.' Arguing a contrario, one must resort inter alia to object and purpose if the meaning is ambiguous and open to multiple interpretations.
146. See Yearbook of the International Law Commission, (n 109) 221;
147. Sinclair (n 110) 131: 'The text is the expression of the intention of the parties; and it is to that expression of intent that one must first look.'
148. For a comprehensive discussion on the practice of international jurisprudence on a treaty's object and purpose, see Orakhelashvili (n 122) 345-52;
149. and Gardiner (n 107) 194-201.
150. Va n Damme ((n 108) at 257-64) reviews the reliance on object and purpose by the WTO Appellate Body. Qureshi (n 108, at 145-51) shows that also in the law and practice of international monetary-, investment- and fiscal law objectives play an important role for treaty interpretation.
151. WTO Appellate Body Report, US - Shrimp, (n 50) para 153.
152. WTO Appellate Body Report, US - Shrimp, (n 50) Ibid para 114.
153. WTO Appellate Body Report, US - Shrimp, (n 50) Ibid para 131.
154. Oil Platforms (Islamic Republic of Iran v United States of America), Preliminary Objection - Judgement of 12 December 1996, ICJ Rep (1996) 803-821, at para 27 (accessed 17 September 2009).
155. South-West Africa (Ethiopia and Liberia v South Africa), Preliminary Objections - Judgement of 21 December 1962, ICJ Rep (1962) 319-348, at 336 (accessed 17 September 2009).
156. LaGrand (Germany v United States of America), Judgement of 27 June 2001, ICJ Rep (2001) 466-517, at paras 98-102 .
157. See Arbitral Award of 31 July 1989 (Guinea-Bissau v Senegal), Judgement of 12 November 1991, ICJ Rep (1991), 53-76, at paras 49-56 (accessed 17 September 2009).
158. USA, Federal Reserve Bank v Iran, Bank Markazi Case A28 (2000-2002) 36 Iran - US Claims Tribunal Reports 5 at para 58 (footnotes omitted).
159. See Sections I and II for details.
160. The second paragraph of Article 1 of the Cotonou Agreement explains that 'the partnership shall be centred on the objective of reducing and eventually eradicating poverty consistent with the objectives of sustainable development and the gradual integration of the ACP countries into the world economy'.
161. EC Commission/DG Trade, (n 1).
162. See the CEPA Preamble.
163. See Article 1 CEPA.
164. See ILA Declaration, above n 45, principle No.3 and accompanying explanations.
165. Article 2(1) states that CEPA is 'based on the Fundamental Principles as well as the Essential and Fundamental Elements of the Cotonou Agreement' set out in Article 2&9 of that Agreement. Those provisions in turn concern inter alia (1) the equality of the partners and ownership of the development strategies; (2) differentiation and regionalisation and (3) so called 'fundamental elements' such as respect for human rights, the universal character of democratic principles to legitimise state authority, adherence to the rule of law and good governance.
166. The incorporation of the Articles 2 and 9 of the Cotonou Agreement into the CEPA by reference makes the latter relevant context for the interpretation of the CEPA provisions under Article 31(2) VCLT.
167. See Articles 2 and 9 (as addressed in n 139) and Article 1 Cotonou (as addressed in n 142).
168. See Article 3(1) (emphasis added). Under Article 1 of the Cotonou Agreement, the partnership between the EC and ACP countries 'shall be centred on the objective of reducing and eventually eradicating poverty consistent with the objectives of sustainable development and the gradual integration of the ACP countries into the world economy'.
169. The heading 'A Trade Partnership For Sustainable Development' indicates that trade and the other economic measures regulated in CEPA are a means for achieving the goal of sustainable development.
170. The ILA Declaration emphasises that 'all levels of governance - global, regional, national, sub-national and local - and all sectors of society should implement the integration principle' (ILA Declaration (n 45) 7.3). This also follows from two chapters in Agenda 21 (n 35 8.2-8.26 and 39.1-39.2) which address the international and national level respectively.
171. Article 3(1) CEPA (emphasis added).
172. The wording ('is to be applied' instead of 'has been applied') directs a call for action to those applying and implementing the agreement.
173. Article 3(3) states: 'As a result the Parties agree to work cooperatively towards the realization of a sustainable development centred on the human person, who is the main beneficiary of development.'
174. Compare Section III above.
175. See Section III.B.2 above.
176. Jodoin (n 66) 9. See also Lowe (n 12, 36) who focuses on judicial decision-making processes; and Boyle and Freestone (n 59, 17) who refer to ample state practice as well as the ICJ decision in Gabcikovo - Nagymaros Project (above n 48) as evidence that the principle of integration should be understood as procedural integration requiring development decisions to be the outcome of a process which integrates economic, social and environmental concerns and so promotes sustainable development.
177. Compare Section III.B.2 above.
178. See in particular the ILA principle of public participation and access to information and justice (No.5) as well as the principle of good governance which together embody the main aspects of ownership, participation and dialogue.
179. See Part II Title IV CEPA; the chapter on 'Social Aspects' covers commitments regarding core labour standards.
180. See eg Article 29 on customs and trade facilitation, Article 37 on agriculture and fisheries, Articles 115 and 116 on tourism services sustainable development and environmental standards, Article 131 on intellectual property (IP) protection appropriate to the level of development, Article 139 and 147B on IP and public health, Article 183 on environmental principles, Article 188 on environmental protection and foreign direct investment, Article 191 on labour standards and economic efficiency and productivity, Article 199 on principles of data protection and Articles 207 and 221 on experts on environmental and social matters serving on dispute settlement panels.
181. See Article 158 CEPA (in comparison to Article 44 TRIPS).
182. Article 158 states that '(. . .) judicial authorities may issue against the infringer an injunction (. . .)' (emphasis added).
183. Apparently Article 224 copies Article XX GATT and Article XIV GATS. The approach taken by the WTO Appellate Body in US - Shrimp (see Section II.A) hence should be the minimum of integration that can be achieved under Article 224: distinct to the WTO Agreement, the CEPA focus on sustainable development is much more embodied in its text and much less countered by possibly conflicting objectives.
184. I am thankful to one of the anonymous reviewers for making this point. One nevertheless would have to assess whether a domestic measure apparently integrating relevant social or environmental concerns serves as a hidden protectionism for domestic industries. The current debate about discriminatory effects of carbon border taxes against goods from countries who are perceived as not doing enough to lower greenhouse gas emissions shows that various legitimate views can exist on the real motivation for a domestic measure which-at first sight-addresses concerns like climate change.
185. The Appellate Body recognised the multiple and possibly conflicting objectives relevant for the WTO Agreements-but still relied on the sustainable development objective in that very decision; see WTO Appellate Body Report, US - Shrimp above n 50, at para 17.
186. The Appellate Body recognised the multiple and possibly conflicting objectives relevant for the WTO Agreements-but still relied on the sustainable development objective in that very decision; see WTO Appellate Body Report, US - Shrimp above n 50, Ibid para153.
187. Next to Article XX GATT see also Article XIV GATS. Outside WTO law, this notion of general exceptions has been utilised by various FTAs (see eg Article 224 CEPA, discussed above) and in some bilateral investment treaties (BITs, see further below).
188. This was suggested by one of the anonymous reviewers to whom I remain thankful for this idea. (S)he further pointed to the option for an interpretation of the phrase 'treatment no less favourable' (eg under Article III(4) GATT) which takes into account qualitative (instead of quantitative) differences. Indeed, the general question of what constitutes a relevant discrimination under MFN and national treatment obligations in GATT and GATS may receive significant input from considering not only economic, but also social and environmental concerns. As indicated above (see n 159), one nevertheless should be careful not to allow protectionism disguised in form of such concerns.
189. While there have been of course significant Panel and Appellate Body reports addressing questions of likeness under GATT and GATS, the Appellate Body has acknowledged that the common criteria used (properties, nature and quality of the products; its end uses; consumer's perceptions and behaviour; and tariff classifications) 'are neither treaty-mandated nor a closed list of criteria that will determine the legal characterisation of products'; see WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Products Containing Asbestos (EC - Asbestos), WT/DS135/AB/R (adopted 12 March 2001) at para 102.
190. While there have been of course significant Panel and Appellate Body reports addressing questions of likeness under GATT and GATS, the Appellate Body has acknowledged that the common criteria used (properties, nature and quality of the products; its end uses; consumer's perceptions and behaviour; and tariff classifications) 'are neither treaty-mandated nor a closed list of criteria that will determine the legal characterisation of products'; see WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Products Containing Asbestos (EC - Asbestos), WT/DS135/AB/R (adopted 12 March 2001) Ibid paras 122-141
191. While there have been of course significant Panel and Appellate Body reports addressing questions of likeness under GATT and GATS, the Appellate Body has acknowledged that the common criteria used (properties, nature and quality of the products; its end uses; consumer's perceptions and behaviour; and tariff classifications) 'are neither treaty-mandated nor a closed list of criteria that will determine the legal characterisation of products'; see WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Products Containing Asbestos (EC - Asbestos), WT/DS135/AB/R (adopted 12 March 2001)Ibid para 154.
192. The Appellate Body explicitly referred to the 'interpretation of the Agreements annexed to the WTO Agreement'-not only to GATT; see WTO Appellate Body Report, US - Shrimp, (n 50) para 153.
193. See Henning Grosse Ruse-Khan, A Comparative Analysis of Policy Space in WTO Law (26 November 2008), Max Planck Papers on Intellectual Property, Competition & Tax Law Research Paper No. 08-102, available at SSRN: (accessed 17 September 2009)
194. also in Marianne Levin and Annette Kur (eds) Intellectual Property in Transition, (Edward Elgar, Cheltenham, UK 2010).
195. Arguably, the sustainable development objective from the WTO preamble guides the interpretation of the objectives embodied in Article 7 TRIPS (as an agreement annexed to the WTO Agreement) and so can both support the balancing advocated by Article 7 TRIPS as well as enlarge it to incorporate environmental and social concerns in a wider sense. This finds additional support in the public interest principles in Article 8(1) TRIPS.
196. Several countries currently launch initiatives which enable inventions with an environmental benefit to be given priority within the patent system as part of their efforts to tackle climate change (see for example: UK 'Green' inventions to get fast-tracked through patent system (Press release) (accessed 17 September 2009). While it is not clear whether 'green' technology would indeed fall as a 'field of technology' under Article 27(1) TRIPS, such a narrow reading would generally enable countries to differentiate on environmental (or social) grounds-as long as this does not amount to disguised protectionism.
197. See Henning Grosse Ruse-Khan, Policy Space for Domestic Public Interests Measures under TRIPS, South Centre Research Paper Series, No.21 (July 2009) (accessed 17 September 2009).
198. See Campbell Mclachlan, 'The Principle of Systemic Integration and Article 31(1)(c) of the Vienna Convention' (2005) 54 ICLQ 279-320.
199. WTO - UNEP Report, Trade and Climate Change, (Geneva: 2009) (accessed 17 September 2009).
200. Pascal Lamy, The Place of the WTO and its Law in the International Legal Order, 17 (5) European Journal of International Law (2006), 969-84, at 981. He further boldly stated: 'The revolution brought about by WTO jurisprudence was to offer a new teleological interpretation of the WTO that recognises the place of trade in the overall scheme of States' actions and the necessary balance that ought to be maintained between such policies.' (978).
201. See eg Chapter 11 of NAFTA, in particular Article 1105.
202. See eg the World Bank's International Centre for the Settlement of Investment Disputes (ICSID) (accessed 17 September 2009).
203. The 2004 Model BIT is available at (accessed 17 September 2009).
204. A USTR press release of July 2009 however states that this Model BIT is under review-especially to determine whether it is 'consistent with the public interest' (accessed 17 September 2009).
205. See Damon Vis-Dunbar, Norway Shelves its Draft Model Bilateral Investment Treaty, Investment Treaty News (8 June 2009) (accessed 17 September 2009). The Draft Model BIT of 17 December 2007 contained inter alia the objective of sustainable development in its preamble.
206. For a review of investment treaties against the background of general international law, see Campbell Mclachlan, 'Investment Treaties and General International Law' (2008) 57 ICLQ 361-401.
207. On the role of public interests in investment law, see Gus Van Harten, Investment Treaty Arbitration and Public Law (OUP, Oxford 2008).