Sustainable development and the international trade law paradigm

Author:Niccolò Pietro Castagno LL.M.
SUMMARY

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 field 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... (see full summary)

 
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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 ).

@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 prolific 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 fields 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 field 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 field 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 difficulties 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.

2. Sustainable development defined, in facts and in law
2. 1 Defining sustainable development

The link between environmental protection and economic development is first found ín the Stockholm Declaration of Principles ( U.N. Documents, 2013 )[2], although the term “sustainable development” has only been forged some 15 years later.

Among the several definitions of sustainable development, the one contained in the so-called Brundtland Commission report (hereinafter, the “Brundtland report”) has been considered the landmark one:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:

  • the concept of “needs”, in particular the essential needs of the world’s poor, to which overriding priority should be given; and
  • the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs ( U.N. Documents, 1987 ; Lélé, 1991 ; Maggio, 1997 )[3]”.
  • Why the need for sustainable development? The core issue in understanding the novelty of the principle is the concept of sustainability. As has been pointed out, policy makers in the past century began to face a new and worrying problem: driven by the force of economics, human activities were starting to alter the planet’s equilibrium, and resource consumption was not only accompanied by a discrepancy between developed and developing countries but also by the concern that such resources were being exhausted or, at least, fundamentally impaired ( Chichilinisky, 1997 ). Such assumptions were well reflected in the Brundtland report itself: it recognized that “[a]t a minimum, sustainable development must not endanger the natural systems that support life on Earth” but also that “[e]conomic growth and development obviously involve changes in the physical ecosystem. Every ecosystem everywhere cannot be preserved intact;” in particular, while there is the need to preserve renewable resources, the only thing that can be done with non-renewable ones is governing their rate of depletion[4]. In fact, the very first discussions on sustainability pertained to ecological sustainability[5], although the concept of social sustainability has also been developed ( O’Hara, 1995 )[6].

    Whereas the concept of sustainability seems to be suitable for a global application, irrespective of countries’ status, its pairing with the concept of development fostered discontent on the part of developing countries: the concern was that they were particularly “targeted” by the effects of the principle and thus that their economic development was being placed at risk ( Hunter et al., 2011 ; Osofsky, 2003 )[7]. On the other part, the developed countries strongly felt the need to keep on addressing environmental issues and giving to sustainable development a stronger normative force, a goal that could be reached only by cooperating with the “South” ( Brown, 1992 )[8]. The result of this need is the Rio Declaration on Environment and Development ( UN Documents, 1992 ), which, according to some authors, also had the merit to bring “sustainable development within the legal sphere” ( Barral, 2012 )[9]. At least, the Rio Declaration, along with Agenda 21, has been recognized as reflecting the consensus of states on sustainable development and as introducing such principle in the domain of international law ( Silveira and Ruis, 1996 )[10].

    As a matter of fact, reflecting the North–South bargaining process, the Rio Declaration reaffirms the principle of sovereignty of states over natural resources (Principle 2), the right to development as tempered by environmental needs (Principle 3), sets forth the goal to decrease disparities (Principle 5) and also remarks that “[t]he special situation and needs of developing countries, particularly the least developed and those most environmentally vulnerable, shall be given special priority” (Principle 6).

    Setting aside the compromises that the Rio Declaration embodies, it nonetheless provides for a full picture of what sustainable development was meant to be: “the meaning of ‘sustainable development’ can be reduced to the combination of two principles that can be seen as axiomatic to understanding sustainable development: intergenerational and intragenerational equity”, intergenerational equity being equated with the idea of sustainability and environmental protection, and intragenerational equity entailing a fair economic and social development, as well as a notion of environmental protection ( Barral, 2012 , p. 380). Still, notwithstanding the efforts of the international community, also through the subsequent initiatives in support and recognition of the importance of sustainable development, such as the Johannesburg Declaration...

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