Sustainable Developments in World Trade Law And Jurisprudence

by Gehring, Markus W.

• ISBN13: 9789041123664
• ISBN10: 9041123660
• Format: Hardcover
• Copyright: 2005-10-27
• Publisher: Kluwer Law Intl

Summary

In Johannesburg at the World Summit on Sustainable Development in 2002, over one hundred and eighty states assumed a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development economic development, social development, an environmental protection at the local, national, regional and global levels.This remarkable collection of papers, sponsored by the Centre for International Sustainable Development Law (CISDL), demonstrates that sustainable development serves as a unifying concept with the potential to facilitate much-needed respect for international law and timely implementation of diverse and overlapping international commitments. It builds on the substance of a rich and complex debate at the intersections among economic, social, and environmental law, bringing together a broad cross-section of viewpoints and voices. The authors review recent developments in WTO discussions and negotiations, and in the recent decisions of the WTO Appellate Body, from a sustainable development law perspective. They also survey relevant new developments in trade and economic agreements at regional, inter-regional and bi-lateral levels.The various essays focus on sustainable development aspects of key issues in recent trade negotiations such as the Singapore Issues (investment, competition, trade facilitation, and government procurement), intellectual property rights, investment arbitration and the linkage between the WTO and multilateral environmental accords, (MEAs).. Among the specific topics covered are the following: Emerging areas of law and policy in trade and sustainable development,The underlying development agendas in global trade law negotiations,Cooperation and potential negotiation on international competition law,Sustainable development aspects of intellectual property rights negotiations,Overlaps between multilateral environmental accords (MEAs) and the WTO,Recent developments in WTO dispute settlement procedures and proceedings, Human rights and environmental opportunities from trade liberalisation and increased market acces,Human rights and environment impact assessment techniques used to analyse trade agreements,Recent developments in bi-lateral and regional trade agreements. Trade, investment, and competition law practitioners and negotiators in developed and developing countries will find this book of great value, as will development and environment law professionals with responsibility for trade and WTO law related matters. With rich contributions from leading trade law practitioners, academics, and WTO panel and appellate body roster members, Sustainable Developments in World Trade Law offers a constructive, timely and accessible expert analysis of recent discussions and advances in the field, providing an integrated and essential guide to some of the most important issues in international economic law today.

Table of Contents

List of Contributors	xxi
Table of Abbreviations	xxvii
Foreword	xxxi
Prof. Georges Abi-Saab
Introduction	1	(24)
Marie-Claire Cordonier Segger
Dr. Markus W. Gehring
The Concept of Sustainable Development, and its Meaning in International Law	3	(4)
World Trade Law as an Instrument for Sustainable Development?	7	(10)
Negotiating Sustainable Development in the WTO?	7	(5)
Sustainable Development in Recent WTO Disputes?	12	(5)
Recent Developments in Trade Law for Sustainable Development	17	(5)
Sustainable Development in World Trade Law: The Book	22	(3)
PART I: FOUNDATIONS	25	(162)
Trade and Environment in the Context of Sustainable Development	27	(46)
Matthew Stilwell
Preface	27	(7)
James Cameron
The WTO, Environment and Sustainable Development	34	(2)
Material Linkages -- Economic, Social and Environmental	36	(3)
Legal and Policy Issues -- the Importance of Coherence and Balance	39	(31)
Market access	43	(1)
Process and production methods	44	(3)
Labelling	47	(2)
Scientific Uncertainty and Precaution	49	(3)
Biosafety	52	(3)
Agriculture	55	(2)
Subsidies	57	(1)
Services	58	(3)
Intellectual property	61	(3)
Multilateral Environmental Agreements (MEAs)	64	(2)
Institutional Issues	66	(1)
The Role of Integrated Assessments	66	(2)
Information Exchange and Observer Status	68	(1)
Compliance, Enforcement and Dispute Settlement	68	(2)
Conclusion	70	(3)
Trade and Development Law	73	(30)
Henning Jessen
Preface	73	(8)
Ricardo Melendez-Ortiz
International Law and Development Issues	81	(5)
The General Concept of Development and its Manifestations in International Law	82	(2)
The Concept of Sustainable Development and its Connection to ``Good Governance''	84	(2)
Linkages between Trade, Human Development and Human Rights	86	(6)
The Importance of Strengthening the Rule of Law on the Domestic Level	88	(1)
Trade, Poverty Reduction and Human Rights	89	(3)
Linkages between Trade and Development Law	92	(6)
The WTO's General Contribution to Development	93	(3)
The Development Contribution of the Doha Development Agenda	96	(2)
Conclusions -- Achieving Demarginalisation and Coherence in Global Trade	98	(5)
A Perspective on Trade and Labour Rights	103	(26)
Prof. Christopher McCrudden
Dr. Anne Davies
Preface	103	(4)
Dr. Kamal Hossain
Introduction	107	(5)
How Far is there a Conflict between Trade Liberalisation and Labour Rights?	112	(5)
Empirical Issues	112	(1)
Theoretical Issues	113	(3)
Legal Issues	116	(1)
Where there is a Conflict, How Should We Respond?	117	(5)
Unilateral Model	118	(1)
NGO Model	119	(1)
Regional Model	120	(1)
Multilateral Model	121	(1)
Alternatives to the Current Approaches	122	(4)
Involuntary Multilateralism	123	(1)
Voluntary Multilateralism	124	(2)
Conclusions	126	(3)
Integrating Social and Economic Development and Environmental Protection in World Trade Law	129	(58)
Marie-Claire Cordonier Segger
Preface	129	(5)
Prof. Nico J. Schrijver
Sustainable Development in International Law	134	(3)
EU v. Chile in the ITLOS / Chile v. the EU in the WTO	137	(3)
Distinct Communities for Trade, Environment and Social Development	140	(1)
Explaining Intersections of Rules and Regimes	141	(4)
Implications of Intersections between Regimes	145	(3)
Addressing the Intersections of Trade, Environment and Social Regimes	148	(4)
Sustainable Development in World Trade Law	152	(1)
Adjudicating Sustainable Development Conflicts in World Trade Law	153	(16)
United States -- Measure Affecting Government Procurement, Request for Consultation by the European Communities	154	(3)
The European Communities -- Measures concerning Meat and Meat Products (Hormones) Case	157	(3)
The European Communities --- Measures Affecting Asbestos and Products Containing Asbestos Case	160	(3)
United States --- Import Prohibition of Certain Shrimp and Shrimp Products	163	(4)
European Communities --- Conditions for the Granting of Tariff Preferences to Developing Countries	167	(2)
Intersections between Trade and Other Sustainable Development Law Regimes	169	(10)
Intersections between Trade Rules on SPS, and Biosafety Law	169	(3)
Intersections between Trade Rules on Public Procurement and Social, Economic and Cultural Rights	172	(4)
Intersections between Trade Rules on Subsidies and Climate Change Measures	176	(3)
Future International Trade Negotiations and Sustainable Development	179	(3)
Sustainable Developments in New Regional and Bi-lateral Trade Treaties	182	(2)
Conclusions	184	(3)
PART II: SUSTAINABLE DEVELOPMENTS IN WORLD TRADE LAW	187	(360)
Sustainable Development Through Process in World Trade Law	189	(28)
Dr. Markus W. Gehring
Marie-Claire Cordonier Segger
Preface	189	(2)
Hon. Sergio Marchi
Introduction	191	(2)
From Specific Project Environmental Assessment to Broader Sustainability Assessment of Policies	193	(12)
Environmental Impact Assessment	194	(3)
Extension of EIAs to Include Social Criteria	197	(2)
Strategic Assessment: From Projects to Policies, Plans and Programmes	199	(5)
Sustainability or Integrated Impact Assessments	204	(1)
National Assessments of Trade Agreements	205	(7)
Canada	206	(2)
USA	208	(1)
European Union	209	(3)
Multilateral Assessment	212	(1)
Conclusions	213	(4)
Human Rights Impact Assessments of Trade-Related Policies	217	(40)
Simon Walker
Preface	217	(4)
Hon. Ibrahim Salama
Introduction	221	(8)
How Can Trade Affect Human Rights (and Vice Versa)?	222	(3)
What is a Human Rights Impact Assessment?	225	(3)
What is the Added Value of a Human Rights Impact Assessment?	228	(1)
Information and Tools for Human Rights Impact Assessments	229	(9)
Mapping	229	(3)
Human Rights Indicators	232	(2)
Assessment Methodologies	234	(4)
A Process for Undertaking Human Rights Impact Assesments	238	(11)
Choosing the Assessment Team	238	(1)
Setting the Framework	238	(3)
Screening	241	(2)
Scenario-building	243	(1)
Assessment	244	(3)
Preventive, Remedial and Fulfilment Measures	247	(2)
Conclusions	249	(8)
Does the WTO Dispute Settlement Understanding Promote Sustainable Development?	257	(16)
Tenu Avafia
Preface	257	(3)
Prof. Vaughan Lowe
The Evolution of the Principle of Sustainable Development in WTO Law	260	(1)
Dispute Settlement under GATT 1947 and Sustainable Development	261	(1)
The WTO Dispute Settlement Understanding and its Impact on Sustainable Development	262	(2)
Differences between GATT and WTO Dispute Settlement	262	(2)
A History of Key WTO Panel and Appellate Body Reports: The DSU Approach to Sustainable Development	264	(5)
US -- Gasoline	264	(2)
US -- Shrimp	266	(2)
EC -- Tariff Preferences	268	(1)
The Future of Sustainable Development in the WTO's Dispute Settlement system	269	(2)
Conclusion	271	(2)
The Trips Agreement at a Crossroads: Intellectual Property and Sustainable Development in the Doha Round	273	(24)
Maria Julia Oliva
Sisule F. Musungu
Preface	273	(2)
Pia Rodriguez
Introduction	275	(3)
The State of Play in Intellectual Property Negotiations in the WTO: Recent Developments and Trends	278	(10)
Relationship between the TRIPS Agreement and the CBD	279	(2)
Implementation of Paragraph 11 of the 30 August Decision	281	(2)
Non-violation and Situation Complaints	283	(2)
Geographical Indications	285	(1)
Special and Differential Treatment	286	(1)
Transfer of Technology under Article 66.2 of the TRIPS Agreement	287	(1)
Transition Periods for LDCs under Article 66.1 of TRIPS	287	(1)
Intellectual Property and Sustainable Development Towards Hong Kong: Issues and Challenges	288	(7)
Introducing Disclosure of Origin Requirements in the TRIPS Agreement	288	(3)
Resolving the Implementation of Paragraph 11 of the 30 August Decision	291	(1)
Declaring the Inapplicability of Non-violation and Situation Complaints to the TRIPS Agreement	292	(1)
Preserving the Link between Geographical Indications and Implementation Issues	293	(1)
Maintaining the Momentum on other Intellectual Property and Development Issues and Concerns	294	(1)
Final Remarks	295	(2)
Intellectual Property Rights and Traditional Knowledge	297	(30)
W. Bradnee Chambers
Dr. Alphonse Kambu
Christine Frison
Preface	297	(2)
Shawn Atleo
Introduction	299	(2)
The Debate: Effectiveness of the International Intellectual Property Regime	301	(3)
Steps Toward Protecting Traditional Knowledge	304	(20)
The IT-PGRFA	304	(1)
Legal History	304	(5)
Why a New Agreement on Plant Genetic Resources?	309	(1)
General Provisions of the Agreements	310	(1)
Benefit Sharing Arrangements	310	(2)
Technology Transfer	312	(2)
Intellectual Property Rights	314	(1)
Material Transfer Agreements	315	(1)
Prior Informed Consent	315	(1)
The Convention on Biological Diversity	316	(1)
The World Intellectual Property Organisation	317	(2)
The WTO TRIPS Agreement	319	(1)
The Interlinkages of the IT-PGRFA with the CBD, WIPO and the TRIPS	319	(5)
Conclusion	324	(3)
Trade, Agriculture and Sustainability in Land Use	327	(28)
Prof. Dr. Stefan Oeter
Preface	327	(5)
Dr. Jacques Diouf
Sustainable Development and its Implications	332	(2)
Agriculture within the WTO and the Doha Round Negotiations	334	(7)
The WTO 'Agriculture Agenda' and its Repercussions on Sustainability of Land Use	341	(12)
Repercussions on Land Use in Developed Countries	343	(4)
Repercussions on Land Use in Developing Countries	347	(5)
Complementary Measures	352	(1)
Conclusions	353	(2)
The 'Singapore Issues', Competition and Sustainable Development	355	(20)
Dr. Markus W. Gehring
Preface	355	(6)
Prof. Frederic Jenny
The Doha 'Development Agenda' Mandate on Competition	361	(1)
Where should dialogue take place?	362	(1)
Competition Law in the WTO?	363	(1)
Competition Law Principles and Sustainable Development	364	(2)
Competition Law in the International Competition Network (ICN)	366	(3)
International Cooperation on Sustainable Competition?	369	(2)
Competition and Sustainable Development 'Cuts Both Ways'?	371	(2)
Conclusions: A Need for Inquiry, Dialogue and Capacity Building	373	(2)
The Definition of Investment in ICSID Arbitration: Development Lessons for the WTO?	375	(36)
Martin Endicott
Preface	375	(6)
Prof. Thomas W. Walde
Principles of Interpretation	381	(12)
The object, purpose and context of the ICSID Convention	382	(2)
The travaux preparatoires and the circumstances of the Convention's conclusion	384	(2)
The Convention meaning of ``investment''	386	(2)
When can a transaction be said to contribute to economic development?	388	(3)
The role of consent in defining investment	391	(2)
Tribunal Practice	393	(14)
How have ICSID tribunals approached the investment issue?	393	(2)
Fedax NV ('Fedax') v. Republic of Venezuela ('Venezuela') (1997)	395	(3)
Ceskoslovenska Obchodni Banka AS v. The Slovak Republic (1999)	398	(3)
Salini Costruttori SPA and Italstrade SPA v. Kingdom of Morocco (2001)	401	(1)
Mihaly International Corporation v. Democratic Socialist Republic of Sri Lanka (2002)	402	(3)
Joy Mining Machinery Limited v. The Arab Republic of Egypt (2004)	405	(2)
Comparing Approaches to the Investment Issue	407	(2)
Conclusions	409	(2)
Is European Law Becoming More Sustainable?	411	(50)
Mario Prost
Preface	411	(4)
Prof. Armand de Mestral
Introduction: The European Union in a Crisis of Ideal	415	(4)
The Constitutional Basis for Sustainability	419	(9)
The Early Communities	419	(1)
The Evolving Community	420	(1)
The Single European Act (1986)	420	(1)
The Treaty on the European Union (1992)	421	(2)
The Treaty of Amsterdam (1997)	423	(2)
The Treaty of Nice (2001)	425	(3)
The Widening of EC Law to Non-Commercial Matters	428	(12)
Positive Harmonisation	428	(1)
Development of European Environmental Law	428	(3)
EC Law and Human Rights	431	(2)
A European Social Policy?	433	(2)
Negative Harmonisation	435	(1)
Article 30 and Mandatory Requirements	435	(1)
Limitations and Safeguards against Misuse or Abuse	436	(4)
The Implementation of Sustainable Development Legal Principles	440	(15)
Precaution	441	(7)
Public Participation in Decision-Making	448	(7)
Concluding Remarks	455	(6)
Negotiating Sustainable Development in the Free Trade Area of the Americas	461	(34)
Marie-Claire Cordonier Segger
Preface	461	(7)
Prof. Carlos Murillo
The Policy Context of the FTAA Negotiations	468	(3)
Regional Americas Summits process	468	(2)
Sustainable development as policy direction for the FTAA negotiations	470	(1)
A More Sustainable FTAA?	471	(22)
Reconciliation through Interpretive Provisions	472	(1)
Preamble	472	(1)
Interpretive guidance when treaties overlap or conflict	473	(8)
Exceptions	481	(1)
Reconciliation through ``Integrated'' Substantive Provisions	482	(1)
Sustainability impact assessments of trade agreements	482	(3)
Developing 'mutually supportive' agendas in areas of potential overlap	485	(5)
Reconciliation through 'value-added' parallel instruments	490	(1)
Reconciliation through procedural innovations	491	(1)
Innovations in the FTAA negotiations procedures	492	(1)
Procedural Innovations in the FTAA Draft Text	493	(1)
General Conclusions	493	(2)
The Australia-Us Free Trade Agreement: A Sustainability Case Study of a Post-Cancun FTA	495	(26)
Michael Kerr
Preface	495	(6)
Nicholas Sinclair-Brown
Economic Outcomes	501	(3)
Sustainable Development (Environmental and Social) Outcomes	504	(16)
Process	504	(1)
Environmental Review	504	(2)
Negotiating Objectives on Environment and Labour Standards	506	(2)
Parliamentary Scrutiny of Trade Agreements	508	(2)
The Investment Chapter -- The Impact on Environmental Laws and Other Social Policy Measures	510	(3)
The Services Chapter -- The Impact on Environmental Laws and Other Social Policy Measures	513	(2)
Labour and Environment Chapters	515	(1)
Chapter 18 -- Labour	515	(1)
Chapter 19 -- Environment	516	(2)
Pharmaceutical Benefits Scheme and Higher Drug Prices	518	(2)
Conclusion	520	(1)
Sustainable Development, Trade & Social Exclusion in Asia	521	(26)
Dr. Kishan Khoday
Preface	521	(2)
Prof. Gary Sampson
ASEAN-plus: Towards the World's Largest Free Trade Area	523	(1)
Finding Coherence between Regional Trade and Domestic Policies	524	(7)
An enabling environment of peace, poverty reduction and good governance	525	(2)
The challenge in areas of extreme poverty	527	(1)
Inclusive governance for poverty reduction	528	(1)
Natural resources as a driving force towards greater policy coherence	529	(2)
Means of Implementation: The Case of Indonesia	531	(1)
Partnership as Governance Reform	532	(7)
The drivers of conflict in the new economy	533	(1)
The failures of market liberalisation	533	(1)
Increasing income gaps and distributive inequities	534	(1)
Collective values	534	(1)
Social exclusion and systematic disadvantage	534	(1)
Complex change and strategic policy setting	535	(1)
Negotiated rule making: social compacts for the new economy	535	(1)
The policy-making context	536	(2)
Summary	538	(1)
Policy Coherence through Local Autonomy Regimes	539	(6)
At the crossroads of globalisation and decentralisation	540	(2)
Integrated policy responses	542	(3)
Conclusion	545	(2)
PART III: FUTURE DIRECTIONS	547	(96)
International Public Health and Trade Law	549	(26)
Dr. Maya Prabhu
Kathryn Garforth
Preface	549	(4)
Prof. Margaret Somerville
Introduction	553	(2)
An Overview of the TRIPS Agreement Pre-Doha	555	(4)
Linking Intellectual Property to Trade	555	(1)
Relevant TRIPS Provisions	556	(2)
TRIPS in Practice	558	(1)
Case Study: South Africa	559	(2)
Debates in Doha	561	(2)
Post Doha	563	(1)
Recent Negotiations	564	(2)
A Sustainable Development Law Contribution to Analysis of the Tensions	566	(5)
Integration and Interrelationship	567	(1)
Equity and the Eradication of Poverty	568	(1)
The Principle of Common but Differentiated Responsibility	569	(1)
Public Participation and Access to Information	570	(1)
Looking Forward	571	(4)
Investment Tribunals and the Commercial Arbitration Model: Mixed Procedures and Creeping Institutionalisation	575	(18)
Prof. Fabien Gelinas
Preface	575	(3)
Prof. Ko-Yung Tung
Mixed Procedures and Instrument Choice	578	(2)
Ad Hoc Tribunals and Precedent	580	(5)
Creeping Institutionalisation, Public Debate and Legitimacy	585	(8)
Precaution in Multilateral Environmental Agreements and Its Impact on the World Trading System	593	(38)
Prof. Helene Trudeau
Celine Negre
Preface	593	(5)
Prof. Robert Howse
Crossed Influences between the Precautionary Principle and Trade Interests in Multilateral Environmental Agreements	598	(13)
Trade Interests as a Resistance to Precaution	598	(6)
Precaution and GMOs: the Prevalence of Fear of Risk over Trade Interests	604	(7)
The Challenge Ahead for International Tribunals: Resolving Conflicts between Competing Versions of Precaution	611	(17)
The Danube Dam Case and the Hormones Case	612	(7)
GMOs and Risks to the Environment: a Definite Need for Precaution	619	(9)
Conclusion	628	(3)
Conclusions	631	(12)
Dr. Markus W. Gehring
Marie-Claire Cordonier Segger
Martin Endicott
Table of Treaties	643	(8)
Table of Cases	651	(4)
Table of Declarations	655	(4)
Recommended Resources	659	(34)
Acknowledgements	693	(2)
About the CISDL	695	(2)
Index	697