Balancing Human Rights, Environmental Protection and International Trade: Lessons from the EU Experience

Balancing Human Rights, Environmental Protection and International Trade: Lessons from the EU Experience

by Emily Reid


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This book explores the means by which economic liberalisation can be reconciled with human rights and environmental protection in the regulation of international trade. It is primarily concerned with identifying the lessons the international community can learn, specifically in the context of the WTO, from decades of European Community and Union experience in facing this question. The book demonstrates first that it is possible to reconcile the pursuit of economic and non-economic interests, that the EU has found a mechanism by which to do so, and that the application of the principle of proportionality is fundamental to the realisation of this. It is argued that the EU approach can be characterised as a practical application of the principle of sustainable development. Secondly, from the analysis of the EU experience, this book identifies fundamental conditions crucial to achieving this 'reconciliation'. Thirdly, the book explores the implications of lessons from the EU experience for the international community. In so doing it assesses both the potential and limits of the existing international regulatory framework for such reconciliation. The book develops a deeper understanding of the inter-relationship between the legal regulation of economic and non-economic development, adding clarity to the debate in a controversial area. It argues that a more holistic approach to the consideration of 'development', encompassing economic and non-economic concerns - 'sustainable' development - is not only desirable in principle but realisable in practice.

Product Details

ISBN-13: 9781509913800
Publisher: Hart Publishing
Publication date: 01/26/2017
Series: Studies in International Trade and Investment Law Series , #16
Pages: 364
Product dimensions: 6.14(w) x 9.21(h) x 0.70(d)

About the Author

Emily Reid is Associate Professor in EU Law at the University of Southampton.

Table of Contents

Table of Cases xvii

Tables of Legislation xxxi

1 Introduction: The Purpose and Frame of this Inquiry 1

I Introduction 1

A The Objectives of this Book 2

B Why Human Rights and the Environment? 3

C The Significance of the EU Experience 4

i The Relevance of the EU Experience for the WTO 5

D The Starting Point for this Inquiry: Pragmatism Rather than Ideology 7

E Framing the Inquiry: Sustainable Development and Proportionality 7

i Sustainable Development 8

ii The Principle of Proportionality 12

II Structure of the Book 15

Part I The Eu Experience

2 The Emergence of Human Rights and Environmental Protection in the EU 21

Introduction 21

I The Protection of Human Rights in the EU 23

A The Emergence of EU Human Rights Protection: A Chronological Account 23

i The Treaty of Rome (1957) 23

ii The Single European Act (1986) 27

iii The Treaty on European Union (1992) 29

iv The Treaty of Amsterdam (1997) 30

v The Treaty of Nice (2001) and the Charter of Fundamental Rights for the European Union 31

vi The Treaty of Lisbon (2007) 33

B The Coming of Age of EU Human Rights: 2000- 33

i Issues Raised by the Charter of Fundamental Rights 33

ii The Significance of the Role of the Court of Justice 40

C EU Human Rights Protection and the International Legal Order 42

i EU Law in the International Legal Order: The Kadi Case 42

ii The View of the ECHR Regarding EU Fundamental Rights 43

iii The Impact of Kadi and Kadi II 44

D Human Rights in the EU: Conclusions 46

II The Protection of the Environment in the EU 47

A The Emergence of EU Environmental Protection: A Chronological Account 47

i The Treaty of Rome (1957) 47

ii The Single European Act (1986): The Foundations of a More Proactive Environmental Policy 50

iii The Treaty on European Union (1992) 51

iv The Treaty of Amsterdam (1997) 52

v The Treaty of Nice (2001) 53

vi The Treaty of Lisbon (2007) 54

B Fundamental Principles in EU Environmental Law and Policy 55

i Subsidiarity 55

ii Sustainability: The Sustainable Development Strategy 56

iii Duty of Integration 58

iv Proportionality 61

v The Precautionary Principle 62

C Looking Forward: The Emerging Significance of Sectoral Environmental Objectives (post-2007) 63

i The Seventh Environmental Action Programme (2013) 64

ii Climate Change and Energy 66

iii The Emergence of New Approaches to Governance 67

iv The Benefits of Participatory, Deliberative Approaches: The Kosterhavet National Park 68

D EU Environmental Policy: Conclusions 69

i The Development of Secondary EC Environmental Legislation 69

ii Legal Basis for Measures Including an Environmental Element 70

III Human Rights and Environmental Protection in the EU: Conclusions 71

3 The Standing of Human Rights and Environmental Protection in the EU Legal Order 74

Introduction 74

I Regulating the Interface between Economic and Non-economic Interests: The Rules of the Internal Market 75

A Human Rights and the Fundamental Freedoms 78

i Schmidberger: Introducing a Sustainable Development-Based Approach 79

B Environmental Protection and the Fundamental Freedoms 85

i Environmental Protection as a justification for Restriction of Movement 86

II Human Rights and Environmental Protection as Free-Standing Objectives? 88

A Remedies and Case Law 89

i The System of Remedies 89

ii Environmental Protection: A Ground of Review? 90

iii Non-economic Interests and the Test for Standing 90

iv Greenpeace 91

v The Lisbon Treaty Amendment to the Test for Standing of Natural and Legal Persons 94

B Access to Justice: The Aarhus Convention 96

III Conclusions: The Significance of Sustainable Development and Proportionality in Balancing the EU's Economic and Non-economic Interests 99

A Balancing Interests: The Need for Proportionality 99

B The Emergence of the Two-Way Application of the Proportionality Test 99

C The Two-Way Application of Proportionality as an Operationalisation of Sustainable Development 102

D Enforcement of Non-economic Interests Outside the Context of the Internal Market Rules 102

4 The EU's Relations with Third States 103

Introduction 103

I The Basis of External Competence of the EU 104

A Conferral: The Source of EU Powers 104

B The Position under the TEU 105

i The EG The First Pillar of the EU 105

ii The CFSP: The Second Pillar of the EU 106

iii The Distinction between EC and EU Competences 107

C The Post-Lisbon Position (2009-) 107

II The Exercise of EU Competence 109

A Legal Base: Competency to Undertake External Action 109

i Express Powers 110

ii Implied Powers 110

iii The Scope of Conferred Competence: Common Commercial Policy-Opinion 1/94 112

iv Article 2(2) TFEU: Member State Competence Subordinate to EU Competence? 114

v Complementary Competence 115

III EU Competence in Relation to its Newer Objectives 117

A The Significance of Concurrent Powers 117

B The EU's External Competence: Environmental Protection 119

C External EU Competence: Human Rights 119

i The Limits of the Implied External Human Rights Competence 120

ii Internal Human Rights; Objective or Transverse Obligation? 120

iii The Distinction between an Obligation to Respect and a Power to Promote 122

iv The Basis of the Human Rights Clause in EU Agreements with Third States 123

v Case C-268/94 Portugal v Council and Commission of the European Community 124

vi The Lisbon Treaty Position: Essential Clarification 126

IV The Effect of International Agreements in EU Law 127

A Direct Effect: A Necessary Condition for Reviewability of the Compatibility of EU Law with an International Agreement 129

i Direct Effect? A Two-Prong Test 130

B Unpacking the Jurisdiction of the Court of Justice to Review the Compatibility of EU Law with the EU's International Obligations 131

i Questions Concerning the Scope of the Court of Justice's Jurisdiction 131

V Concluding Comments 134

A The Nature of EU External Competence 135

B The Nature of EU External Competence in Respect of Human Rights and Environmental Protection 136

C The Emergence of External Competence as a Mirror of the Development of Internal Competence 137

D The Effect of the EU's External Commitments 138

5 Human Rights and Environmental Protection in the EU's Relations with Third States 139

Introduction 139

Structure of the Chapter 140

I Forms and Types of Agreement between the EU and Third States 141

A Trade Agreements 141

B Partnership and Cooperation Agreements 141

C Association Agreements 142

i Development Cooperation Agreements 143

ii The Europe Agreements 145

iii Other Association Agreements 145

D European Neighbourhood Policy 146

E Sectoral Agreements 147

F Interim Agreements 147

II The Emergence of the Human Rights and Democracy Clause: Lomé IV (1990) 148

A Article 366a: Introducing Human Rights Conditionality to Lomé (1995) 150

B The Cotonou Agreement (2000) 150

C The Human Rights and Democracy Clause in Agreements with Central and Eastern European States 152

i Ex Ante Human Rights Consideration 152

ii Human Rights Conditionality within Agreements with European States 153

iii The Substance of the Clause in Agreements with European States 153

D Universal Inclusion of the Human Rights Clause 154

i A Universal Policy with Varying Reference Points and Content 155

E Human Rights Conditionality and the EU GSP 156

i Positive Conditionality under the GSP 156

ii Negative Conditionality 157

iii Reform of the GSP 158

iv Temporary Withdrawal of GSP Benefits 159

F Sectoral Agreements 161

G External Opposition to Inclusion of the Human Rights Clause: Mexico and Australia 162

i Mexico 162

ii Australia 163

H Questions Regarding the Definition and Perception of Human Rights at Issue: A Truly Universal Policy? 164

I Continuing Resistance to Human Rights Conditionality 165

J Factors Influencing the Form and Strength of the Human Rights Clause 166

III EU Enforcement of the Human Rights Clause 167

A Meaningful Conditionality? The Partnership and Cooperation Agreement with Russia 168

B Discretion and Consistency in Relation to the Human Rights Clause 169

C The Subsequent Challenge: Standing to Enforce the Clause? 170

i Mugraby v Council and Commission 171

D Reliance on the Exercise of Political Discretion in the Enforcement of the Human Rights Clause 172

IV The Protection of the Environment in the EU's Relations with Third States 174

A Development Cooperation Agreements 174

i The Cotonou Agreement 176

ii Environmental Protection in the Europe Agreements 177

B Partnership and Cooperation Agreements 179

C Cooperation Agreements 180

D Trade Agreements 181

E The Agreement with Mexico 181

F Australia 182

G The Emergence of an Integrative Approach: Sustainable Development in the EU's Agreements with Third States 183

i The Integration of the Environmental Dimension in Development 185

V Conclusions 186

A On Human Rights Conditionally 186

B On Environmental Protection 187

C The Significance of Relativity in the Pursuit of Non-economic Interests in the EU's External Relations 188

i Mitigating the Charge of Imperialism 188

ii The Creation of Regulatory Space for the Protection of Non-economic Values 188

D EU External Policy as a Reflection of its Internal Policy 189

E Lessons Which May Be Drawn from the EU's Experience in Reconciling the Pursuit of Economic and Non-economic Interests 190

Part II Balancing Economic and Non-Economic Interests in the International Legal Order

6 The International Context: The WTO Legal Order 195

Introduction 195

I The Framework for International Trade: The WTO 196

A Background to the WTO 197

B Liberal Trade: A Means to an End? 198

C Fundamental Principles and Rules of the GATT 200

D Provision for the Protection of Non-economic Interests within the WTO Legal Order 201

E The Dispute Settlement System 202

II The Relationship between WTO Law and International Law 203

A WTO Law: No Clinical Isolation from International Law 203

B Relevant Rules of International Law 205

i Customary International Law 205

ii The Impact of Provisions of International Treaties 206

7 Trade and Environment in the WTO Legal Order 210

Introduction 210

I Background to the trade-environment nexus under the GATT/WTO 210

A The Committee on Trade and Environment 212

B The GATT Status of Trade-Related Measures in MEAs 213

II Environmental Regulatory Measures and Dispute Settlement 215

A Trade/Environment Disputes before the GATT Panel 216

i Tuna and Tuna Products 216

ii The Herring and Salmon Dispute 218

iii Thai Cigarettes 219

iv Superfund 222

v US Restrictions on Imports of Tuna (1991) (Tuna-Dolphin) 224

vi US-Restrictions on Imports of Tuna (1994) (Tuna-Dolphin II) 226

vii Trade and Environment under the GATT: Comment 228

B Trade/Environment Disputes under the WTO Dispute Settlement System 229

i US-Gasoline 229

ii United States-Import Prohibition of Certain Shrimp and Shrimp Products (US-Shrimp) 230

iii EC-Asbestos 233

iv Testing the Legitimacy of Members' Regulatory Measures: 'Weighing and Balancing'? 234

C The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) 235

i The Nature of Review: EC-Hormones 236

D The Agreement on Technical Barriers to Trade 238

i US-Clove Cigarettes 239

ii US-Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (US-Tuna II) (Mexico) 240

III Emerging Environmental Measures Posing Particular Challenges for the WTO 242

A Energy 242

B Trade in Environmental Goods 244

IV Application of the Different Tests in the Determination as to Whether a Measure May Justify a Trade Restriction 245

A The Necessity Test 246

B The Relationship between GATT/TBT 'Necessity' and EU Proportionality 247

C The Appellate Body: 'Weighing and Balancing' Competing Interests? 248

D The Application of the Court of Justice and Appellate Body Tests Compared 249

i Ditlev Bluhme 249

ii PreussenElektra 251

V Conclusions 252

8 Human Rights Protection and WTO Law 254

Introduction 254

I Background: International Human Rights Law and the WTO 255

A No Coherent Relationship 255

II Unpacking the Interaction between Human Rights and WTO Rules 258

A Locating Human Rights in the WTO Legal Order 259

i International Law and the WTO 260

ii The Relevance of Human Rights Considerations in the Determination of 'Likeness' under Article III GATT 262

iii Invocation of an Exception under Article XX GATT 263

B Case Study: Labour Rights 264

i The Singapore Ministerial Declaration 265

ii Defining Labour Rights 267

iii Unpacking the Core Standards 267

iv 'Labour Standards' to 'Labour Rights': Merely a Rhetorical Shift? 267

v Labour Rights as Human Rights? 268

vi Testing the Interaction between Human Rights and the WTO Rules with Reference to Labour Rights 271

III Contrasting Approaches: The EU and WTO Approaches Compared 278

IV Conclusions 281

A The Significance of Consensus 281

9 Effecting the Reconciliation of Competing Interests: Reconceptualising the Legal Framework 286

I The EU Experience 286

II Reconceptualising the Objectives of the WTO through the Lens of Sustainable Development 288

A Unpacking the Objectives of the WTO Rules 288

B The Impact of the Narrow (Neoliberal) Interpretation of the WTO Objectives 290

C The Need for a Holistic Approach 291

D Embedded Liberalism 293

E The Integration of Non-economic Interests into the WTO Legal Order? 293

i The Dangers of integrating Non-economic Interests into the WTO Legal Order: Reinforcing Existing Hierarchies 295

F Integrating the WTO Legal Order into the Context of Sustainable Development 297

G The Theoretical Framework 297

i Would a Liberal Theoretical Framework Be Helpful? 298

ii The Need to Unpack the Pursuit of Trade Liberalisation: Non-discrimination or a Right to Market Access? 299

iii The Consequence of Reconceptualising the Objectives of the WTO in the Light of Sustainable Development 302

III Operationalisation of the Sustainable Development-Based Approach 303

A Sustainable Development as the Basis of an Adjudicative Mechanism 305

B Applying the Sustainable Development-Based Approach: The Role of 'Proportionality' 306

C The Benefits of this Approach 306

IV Reconciling the Pursuit of Economic and Non-economic Interests: Lessons frm the EU 307

A EU Lessons: The Internal Perspective 308

B EU Lessons: The External Perspective 309

V Concluding Comments 311

Index 314

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