Sustainable Development as a Principle of International Law
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1 Sustainable Development as a Principle of International Law Resolving Conflicts between Climate Measures and WTO Law By Christina Voigt M A RTI N U S NITHOFF PUBLISHERS LEIDEN BOSTON 2009
2 TABLE OF CONTENTS Series Editor's Preface xv Acknowledgements xvii List of Abbreviations and Acronyms j xix General Introduction 1 Sustainable Development, International Trade and Climate Change 1 Why Sustainable Development? 3 The Ultimate Challenge 6 PART I SUSTAINABLE DEVELOPMENT IN INTERNATIONAL LAW Introduction 9 Chapter 1 Origins and Development of the Concept of Sustainable Development in International Law A Concept with Ancient Roots? Sustainable Development's Rise in the International Order International Treaty Law Regional and National Laws The New Millennium Recent Legal and Political Developments In Sum 31 Chapter 2 Integration as a Central Aspect of Sustainable Development Introduction Integration within the Limits of Ecological Thresholds Climate Stability: An Ecological Threshold Scientific Uncertainty Environmentalism and Sustainable Development Integration and Transgenerational Justice In Sum 54
3 viii Sustainable Development as a Principle of International Law Chapter 3 The International Climate Regime Introduction Normative Framework of the Climate Regime Object and Purpose of the UNFCCC Principles of the UNFCCC and the Kyoto Protocol Obligations The Flexibility Mechanisms of the Climate Regime International Emissions Trading Private Participation The Global Carbon Market and Linking of Domestic Trading Schemes Supplementarity to Domestic Action In Sum The Clean Development Mechanism Additionality Prospects Joint Implementation Concluding Remarks 86 Chapter 4 Sustainable Development in the Context of International Climate Change Law Introduction References to Sustainable Development in the UNFCCC References to Sustainable Development in the Kyoto Protocol and Subsequent Documents Implicit References to Sustainable Development Intragenerational Equity: Differentiation, Partnerships and Funding Intergenerational Equity Economic Flexibility Concluding Remarks and Summary 113 Chapter 5 Sustainable Development in WTO Context Introduction to WTO Law Coverage Rules and Concepts Trade and Environment WTO Exception Clauses 122
4 Table of Contents ix 5.4 Sustainable Development and Trade Law References to Sustainable Development in WTO Law WTO Agreement Institutional Developments WTO Doha Development Agenda WTO Dispute Settlement Invocation of Sustainable Development in WTO Law: Procedural and Substantive Requirements Summary 143 Chapter 6 Sustainable Development as a General Principle of Law Introduction Limitation of Scope General Principles in International Law An Ambiguous Source of Law Custom and General Principles The Function of General Principles and the Objection of Indeterminacy Provenance of Principles Common Legal Conscience In Sum Sustainable Development as a General Principle The Normative Force of Sustainable Development and the Critique of Indeterminacy Substantial Function: Integration as Process or Result? International Jurisprudential Practice In Sum Legitimacy of Sustainable Development Foro Domestico International Legal Conscience The Role of the Judiciary in Promoting Sustainable Development Summary and Concluding Remarks 186 PART II CONFLICTS BETWEEN CLIMATE MEASURES AND WTO LAW Introduction 189
5 x Sustainable Development as a Principle of International Law Chapter 7 Fragmentation of International Law: the Origin of Normative Conflicts Introduction Conflict of Norms Definitions Permissive Norms in the Climate Regime 201 Chapter 8 Climate Measures and WTO Law: General Comments Introduction Limitation of Scope General Compatibility of the Objectives 205 Chapter 9 International Emissions Trading and WTO Rules Introduction WTO Concerns of Sovereign Exchanges in Emission Units WTO Concerns of Private Exchanges in Emission Units Trading with Emission Units and GATT Rules Are All Emission Units'Like Products'? Emissions Trading Affecting Existing Markets Import and Sale of Energy Products Electricity as an Energy Product Energy Imports and National Treatment Rule Like or Directly Competitive or Substitutable Products No less-favourable Treatment or Effective Equality of Competitive Conditions Conclusion GATT Exception Clauses GATT Article XX(g): Relating to the Conservation of Exhaustible Natural Resources GATT Article XX(b): Necessary to Protect Human, Animal or Plant Life or Health Chapeau of GATT Article XX Conclusion 231 Chapter 10 The Clean Development Mechanism and WTO Rules Introduction CDM Activities as Services under GATS 235
6 Table of Contents xi 10.3 Participation in CDM Activities and Discrimination GATS Exception Clauses Policy in Respect of the Measure Necessity Chapeau National Development Priorities under the CDM In Sum 257 Chapter 11 Concluding Remarks on Part II 259 PART III SUSTAINABLE DEVELOPMENT AS A PRINCIPLE OF INTEGRATION OF CLIMATE AND TRADE LAW Introduction 263 Chapter 12 Is there a Need for the Principle of Sustainable Development in WTO Dispute Settlement? Introduction Interpretation in International Adjudication Interpretation of WTO Norms: Principles and their Limitations Textual Interpretation Evolutionary Interpretation Teleological Interpretation Interpretation with Reference to Norms outside the Treaty: Art. 31.3(c) VCLT: General Comments Article 31.3(c) VCLT in WTO Jurisprudence Conclusions 289 Chapter 13 Principles of Conflict Resolution Explicit Conflict Clauses Implicit Conflict Clauses in the Kyoto Protocol and UNFCCC Lex specialis derogat lege generali Lex posterior derogat lege priori Conclusions 303
7 xii Sustainable Development as a Principle of International Law Chapter 14 Applicability of Non-WTO Law in WTO Dispute Settlement WTO Dispute Settlement and Public International Law Jurisdiction and the Applicable Law in WTO Dispute Settlement Sources of non-wto Law in WTO Dispute Settlement Customary Law General Principles of Law In Sum 315 Chapter 15 Applicability of the Principle of Sustainable Development in WTO Dispute Settlement Applicability as Part of WTO Law 317,15.2 Applicability as a General Principle of Law Mandatory or Permissive Application? Dispute Settlement Authority and 'Judicial Activism' In Sum 322 Chapter 16 Application of the Principle of Sustainable Development: Practical Consequences The Aim of Creating Coherence Nature of a Legal Test for Sustainable Development Possible Elements of a Legal Test for Sustainable Development Identification of Affected Interests Primary Sustainability: Type and Strength of Interests Protected by the Measure Secondary Sustainability: Assessment of the (Broader) Sustainability of the Measure Proportionality of Means and Ends Procedurals Legal Effect 339 Chapter 17 'Case' Studies: CDM and Emissions Trading Clean Development Mechanism Identification of Affected Interests Strength of the Protected Interest Contribution to Sustainable Development in a Broader Context Proportionality 352
8 Table of Contents xiii Procedural Requirements In Sum Emissions Trading Identification of Affected Interests Strength of the Protected Interest Sustainable Development in a Broader Context In Sum ; Summary x -" 371 Chapter 18 Final Conclusions Sustainable Development in Climate Change and International Trade Law Sustainable Development as a Legal Principle of Integration Areas of Conflict between Climate Measures and WTO Law Application of the Principle of Sustainable Development in the Context of Climate and Trade Law Conflicts 377 Table of Cases 381 Bibliography 389 Index 423
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