1. 1 Sustainable Developments in International Courts and Tribunals – Judicial Activism in the WTO? Prof Markus Gehring, Dr. jur (Ham) LL.M. (Yale) MA (Cantab) Associate Professor, Vice-Dean Research, University of Ottawa (Droit Civil) Lead Counsel, Trade, Centre for International Sustainable Development Law & Law Fellow, University of Cambridge (Robinson College)

2. 2 Sustainable Developments in International Courts and Tribunals – Judicial Activism in the WTO? Lecture Outline: 1. 1. Introduction 2. 2. Sustainable Development in WTO Disputes 3. 3. WTO Cases on Sustainable Development 4. 4. ‘Judicial Activism’ in International Law 5. 5. Conclusion

3. 3 1. Introduction WTO Dispute Settlement Mechanism: Consultations, Panel & Appellate Body, State-to-State settlement of trade disputes, ‘negative consensus rule’, authority to take retaliatory measures. No stare decisis, but a quasi-precedent character can be identified in dispute settlement decisions. ‘Judicial Activism’ on Sustainable Development: Doha ‘Development Agenda’ negotiations, which include a mandate to take environment and development into account in trade, are stalled. However, important procedural and substantive progress is being made through DSM interpretation of WTO Rules, spurred by ‘judicial activism’…

4. 4 2. Sustainable Development in WTO Disputes Key sustainable development challenges Climate change, Biosafety (GMOs), toxic products, natural resources, pollution due to increased trade, etc. Sustainability concerns in the WTO Challenges to MEAs, limits or regulatory chill on national environmental laws, increased exploitation of natural resources for trade, environmental impacts of trade & transport, etc. The WTO sustainability agenda Can WTO Members use MEAs to justify their actions? Can they effectively invoke Art. XX GATT to justify health, environment and sustainable development measures? Can they use eco-labelling, prohibit imports from non-MEA countries, adjust extra costs at the border?

5. 5 2. Sustainable Development in WTO Disputes A Recent Chain of Relevant ‘Trade & SD’ Cases: 1991 US – Tuna Dolphin 1996 US – Reformulated Gasoline 1998 EU – Beef Hormones 1998 US – Shrimp Turtle 2000 EU – Asbestos Case 2001 Chile – Swordfish 2003 US – Shrimp Turtle Compliance 2006 EU – Biotech 2007 Brazil – Retreaded Tires 2008 EU – Hormones 2008 US – Tuna Dolphin

6. 6 a) Example: US-Shrimp dispute The Appellate Body (AB) referred to the Convention on Biological Diversity (CBD) and the Convention on the Conservation of Migratory Species of Wild Animals when defining the term “natural resources” in Art. XX GATT, even though the U. S. have not ratified the Convention. Nonetheless, the AB found that because the U.S. had only negotiated treaties on the protection of turtles with some countries and not with others, the unilateral U. S. measure was discriminatory and did not comply with the chapeau of Art. XX GATT. The AB in the Art. 21.5 DSU decision later clarified that the U.S. only had to engage in good faith negotiations but not necessarily conclude an agreement with the shrimp exporting countries, otherwise “[…] any country party to the negotiations with the United States, whether a WTO Member or not, would have, in effect, a veto over whether the United States could fulfill its WTO obligations.” Case allows for justification of natural resource protection, unilateral environmental laws as long as good faith negotiations were attempted, it also shows how MEAs can be used to interpret WTO law. 3. WTO Cases on Sustainable Development

7. 7 b) Example: EC-Asbestos dispute The panel and the Appellate Body (AB) for the first time found that a measure (EC/French ban on asbestos) was justified under Art. XX GATT as a measure necessary to protect human health (the AB reversed the panel’s finding that the ban violated Art. III GATT, finding that Canada could not prove sufficient ‘likeness’ between white asbestos and its substitutes). Interesting balancing of health, economic and environmental priorities, i.e. sustainable development balancing. Extensive evidence from specialists and international organisations (eg WHO) was evaluated by the panel. No recourse was made at the time to international MEAs, however Chrysotile (white) Asbestos is currently being discussed as candidate for the Rotterdam Convention’s prior informant consent procedure. This case shows that WTO members can adopt a whole range of measures on toxic products including outright product bans. MEAs did not figure prominently in this dispute but it preempted many questions about the trade measures in the Rotterdam Convention. 3. WTO Cases on Sustainable Development

8. 8 c) Example: EC-Biotech dispute The WTO Panel considered the argument by the EC as to whether WTO obligations (TBT and SPS Agreements) should be interpreted in accordance with the Convention on Biological Diversity and the Cartagena Protocol on Biosafety (Art. 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT)). Balancing between health / environmental and economic concerns was required. Rejected the EC’s argument because it did “[...] not consider that in interpreting the relevant WTO agreements we are required to take into account other rules of international law which are not applicable to one of the Parties to this dispute”. It later distinguished the AB’s reference to the CBD in the US-Shrimp case: “We think that, in addition to dictionaries, other relevant rules of international law may in some cases aid a treaty interpreter in establishing, or confirming, the ordinary meaning of treaty terms in the specific context in which they are used” (Art. 31 (1) VCLT). Largely established how national biosafety laws could be structured, although it struck down product bans and moratoriums. It also shows that MEAs do not provide a trump card in all disputes. 3. WTO Cases on Sustainable Development

9. 9 The WTO is far from being a ‘self contained regime’. Important to ensure WTO law does not develop in isolation from other international law but rather interlinks/ integrates. WTO Members have considerable liberty in designing & implementing MEAs with trade measures. While maintaining a ‘WTO ethos’ of interpretation (limited DSU mandate), trading system is learning to “situate those rights and obligations within the overall context of general international law (including the relevant environmental and human rights treaties).” (ILC Study Group on Fragmentation Report). The sustainable development law ‘integration principle’ could foster more coherence between trade, environment & social law. 3. WTO Cases on Sustainable Development

10. 10 In the WTO, judicial activism on sustainable development is clarifying the role that MEAs play in the WTO. Judicial activism is addressing controversial issues related to inter alia natural resources, biosafety, toxic substances, & national (unilateral) environmental laws. The AB gives governments an increased level of certainty on how to design new sustainable development laws. This can advance environmental law and sustainable development in unlikely places and mitigate some of the lack of progress in the multilateral trade negotiations. International courts and tribunals can play a very important role, signalling important legal developments taken up by national courts and helping to establish balancing criteria. 4. Judicial Activism in International Law

11. 11 WTO ‘judicial activism’ can advance issues even when negotiations on new laws are in a deadlock. While the multilateral trading system is an unlikely place for sustainable development decisions to be made, the strong dispute settlement mechanism has influenced debates and helped establish balancing indicators. Sustainable development addresses difficult problems, and judges at all levels will be called to strike the right balances. New national and international sustainable development institutions & laws could assist tribunals in this difficult task. 5. Conclusion

12. 12 Thank you. Markus W. Gehring mwg24@cam.ac.uk

13. 13 Important GATT rules

14. 14 Important WTO rules