Sustainable development and the international trade law paradigm. A relationship to be denounced?
| DOI | https://doi.org/10.1108/JITLP-11-2013-0032 |
| Published date | 10 June 2014 |
| Date | 10 June 2014 |
| Pages | 136-166 |
| Author | Niccolò Pietro Castagno LL.M. |
| Subject Matter | Strategy,International business,International business law |
Sustainable development and
the international trade law
paradigm
A relationship to be denounced?
Niccolò Pietro Castagno, LL.M.
Abstract
Purpose – The purpose of this paper is to analyse the cross-fertilization between environmental
concerns and trade law, through an analysis of their primary texts and case law, and seek to what extent
the concept of sustainable development is, or can be, embodied in such eld of law. The question posed
is whether the international trade law paradigm is well suited to implement the goals embodied in the
concept of sustainable development.
Design/methodology/approach – In giving a tentative answer to the said question, also through
the analysis of some trade law reform proposals, the author advocates that international trade law
and sustainable development not only can have compatible goals but that they are (if not, they shall
be) inseparably related to one another, from both an economic policy perspective and a legal
standpoint.
Findings – The author concludes that the paradigms can be complementary to the extent that
international trade law, while preserving a formal legal identity deriving from the current shape of
its body of rules, has seen its application supporting and, eventually, giving sustainable
development a normative force that it could not have achieved otherwise – and this, on a global and
uniform scale. Although it may be contended that, after a preliminary survey of relevant
international trade case law, this interaction is still a seed in its infancy and some changes must
necessarily occur to make the trade paradigm keener and more effective in supporting
environmental protection goals, the author argues that, given the difculties in obtaining such
changes, the existing trade paradigm structure has served (and will serve) sustainable
development better than other paradigms, as a vehicle through which such concept can drive
nations’ economic development more forcefully.
Research limitations/implications – The paper contains a reasoned survey of the most important
case law, outlining the main legal hurdles that the implementation of sustainable development
encounters in the World Trade Organization (WTO) dispute settlement mechanism.
Originality/value – The value of this paper stands in the reasoned approach to the legal issues
underlying the matters involved, specically with respect to the analysis of Article XX GATT.
Moreover, it remarks the effects that a developed system like the WTO can have in promoting
sustainable development, addressing some of the most recent reform proposals.
Keywords Sustainable development, Environment, GATT exceptions
Paper type Research paper
Trade is really not the issue, nor is economic growth. The issue is how to reinvent
environmental polices in an ever more integrated world economy so as to ensure that we live
within ecological limits (Nordström and Vaughan, 1999).
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1477-0024.htm
JITLP
13,2
136
Received 5 November 2013
Revised 4 April 2014
Accepted 13 April 2014
Journal of International Trade Law
and Policy
Vol. 13 No. 2, 2014
pp. 136-166
© Emerald Group Publishing Limited
1477-0024
DOI 10.1108/JITLP-11-2013-0032
1. Introduction
The importance of preserving natural resources, animal species and a healthy human
environment fostered over time the creation of a new body of laws, collectively called
“international environmental law”, which is one of the most prolic in terms of
production of international treatises, soft law declarations and political and scholarly
essays. This latter remark is the symptom of the attention that international
organizations, sovereign entities and, eventually, individuals devote to the protection of
environment, a “resource” that is becoming more and more valuable. Nonetheless, such
instances have to be weighed against the need of some countries to continue fostering
their own economies and to economically improve the well-being of their citizens and of
some others to continue their path of economic and social development. The result of this
equation, whose assessment has been ongoing for some 30 years and whose terms still
inspire much debate, is the concept of “sustainable development”; this principle is
required to encompass the growing need of a more thorough and effective
environmental protection at several levels without impinging countries’ developmental
goals, especially rising and young economies[1].
The magnitude and the potential endemic application of this concept across several
elds often make it clash with other paradigms that also retain a primary importance in
each country’s policy-shaping process, such as international trade. A closer look at this
eld of law, with regard to both the analysis of its primary legal texts and their
implementation (particularly, as evidenced by litigation), indicates that international
trade law directly plays an important and essential role in shaping, informing and,
sometimes, constraining sovereignties’ ability to frame more sound environmental
developmental patterns.
The purpose of this paper is to analyse the cross-fertilization between
environmental concerns and trade law, through an analysis of their primary texts
and case law, and seek to what extent the concept of sustainable development is, or
can be, embodied in such eld of law. The question I posed myself is whether the
international trade law paradigm is well suited to implement the goals purported by
sustainable development. In giving a tentative answer to the said question, also
through the analysis of some trade law reform proposals, I advocate that
international trade law and sustainable development not only can have compatible
goals, but that they are (if not, they shall be) inseparably related to one another, both
from an economic policy perspective and from a legal standpoint. In fact, I conclude
that their paradigms can be complementary to the extent that international trade
law, while preserving a formal legal identity deriving from the current shape of its
body of rules, has seen its application supporting and, eventually, giving
sustainable development a normative force that it could not have achieved
otherwise – and this, on a global scale. Although some may think, after a
preliminary survey of relevant international trade case law, that this interaction is
still a seed in its infancy and some changes must necessarily occur to make the trade
paradigm keener and more effective in supporting environmental protection goals,
I argue that, given the difculties in obtaining such changes, the existing trade
paradigm structure has served (and will serve) sustainable development better than
other paradigms, as a vehicle through which such concept can drive nations’
economic development more forcefully.
137
Sustainable
development
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