Table of Contents

Series Editor's Preface

Acknowledgements

List of Abbreviations and Acronyms

General Introduction

Sustainable Development, International Trade and Climate Change

Why Sustainable Development?

The Ultimate Challenge

Part I Sustainable Development in Internati onal Law

Introduction

Chapter 1 Origins and Development of the Concept of Sustainable Development in International Law

1.1 A Concept with Ancient Roots?

1.2 Sustainable Development's Rise in the International Order

1.3 International Treaty Law

1.4 Regional and National Laws

1.5 The New Millennium

1.6 Recent Legal and Political Developments

1.7 In Sum

Chapter 2 Integration as a Central Aspect of Sustainable Development

2.1 Introduction

2.2 Integration within the Limits of Ecological Thresholds

2.3 Climate Stability: An Ecological Threshold

2.4 Scientific Uncertainty

2.5 Environmentalism and Sustainable Development

2.6 Integration and Transgenerational Justice

2.7 In Sum

Chapter 3 The International Climate Regime

3.1 Introduction

3.2 Normative Framework of the Climate Regime

3.2.1 Object and Purpose of the UNFCCC

3.2.2 Principles of the UNFCCC and the Kyoto Protocol

3.2.3 Obligations

3.3 The Flexibility Mechanisms of the Climate Regime

3.4 International Emissions Trading

3.4.1 Private Participation

3.4.2 The Global Carbon Market and Linking of Domestic Trading Schemes

3.4.3 Supplementarity to Domestic Action

3.4.4 In Sum

3.5 The Clean Development Mechanism

3.5.1 Additionality

3.5.2 Prospects

3.6 Joint Implementation

3.7 Concluding Remarks

Chapter 4 Sustainable Development in the Context of International Climate Change Law

4.1 Introduction

4.2 References to Sustainable Development in the UNFCCC

4.3 References to Sustainable Development in the Kyoto Protocol and Subsequent Documents

4.4 Implicit References to Sustainable Development

4.4.1 Intragenerational Equity: Differentiation, Partnerships and Funding

4.4.2 Intergenerational Equity

4.4.3 Economic Flexibility

4.5 Concluding Remarks and Summary

Chapter 5 Sustainable Development in WTO Context

5.1 Introduction to WTO Law

5.1.1 Coverage

5.1.2 Rules and Concepts

5.2 Trade and Environment

5.3 WTO Exception Clauses

5.4 Sustainable Development and Trade Law

5.5 References to Sustainable Development in WTO Law

5.5.1 WTO Agreement

5.5.2 Institutional Developments

5.5.3 WTO 2001–2006 Doha Development Agenda

5.5.4 WTO Dispute Settlement

5.5.5 Invocation of Sustainable Development in WTO Law: Procedural and Substantive Requirements

5.6 Summary

Chapter 6 Sustainable Development as a General Principle of Law

6.1 Introduction

6.2 Limitation of Scope

6.3 General Principles in International Law

6.3.1 An Ambiguous Source of Law

6.3.2 Custom and General Principles

6.3.3 The Function of General Principles and the Objection of Indeterminacy

6.3.4 Provenance of Principles

6.3.5 Common Legal Conscience

6.3.6 In Sum

6.4 Sustainable Development as a General Principle

6.4.1 The Normative Force of Sustainable Development and the Critique of Indeterminacy

6.4.2 Substantial Function: Integration as Process or Result?

6.4.3 International Jurisprudential Practice

6.4.4 In Sum

6.5 Legitimacy of Sustainable Development

6.5.1 Foro Domestico

6.5.2 International Legal Conscience

6.6 The Role of the Judiciary in Promoting Sustainable Development

6.7 Summary and Concluding Remarks

Part II Conflict s Between Climate Measures and WTO Law

Introduction

Chapter 7 Fragmentation of International Law: the Origin of Normative Conflicts

7.1 Introduction

7.2 Conflict of Norms

7.2.1 Definitions

7.2.2 Permissive Norms in the Climate Regime

Chapter 8 Climate Measures and WTO Law: General Comments

8.1 Introduction

8.2 Limitation of Scope

8.3 General Compatibility of the Objectives

Chapter 9 International Emissions Trading and WTO Rules

9.1 Introduction

9.2 WTO Concerns of Sovereign Exchanges in Emission Units

9.3 WTO Concerns of Private Exchanges in Emission Units

9.3.1 Trading with Emission Units and GATT Rules

9.3.2 Are All Emission Units 'Like Products'?

9.4 Emissions Trading Affecting Existing Markets

9.4.1 Import and Sale of Energy Products

9.4.2 Electricity as an Energy Product

9.4.3 Energy Imports and National Treatment Rule

9.4.4 Like or Directly Competitive or Substitutable Products

9.4.5 No less-favourable Treatment or Effective Equality of Competitive Conditions

9.4.6 Conclusion

9.5 GATT Exception Clauses

9.5.1 GATT Article XX(g): Relating to the Conservation of Exhaustible Natural Resources

9.5.2 GATT Article XX(b): Necessary to Protect Human, Animal or Plant Life or Health

9.5.3 Chapeau of GATT Article XX 228 9.6 Conclusion

Chapter 10 The Clean Development Mechanism and WTO Rules

10.1 Introduction

10.2 CDM Activities as Services under GATS

10.3 Participation in CDM Activities and Discrimination

10.4 GATS Exception Clauses

10.4.1 Policy in Respect of the Measure

10.4.2 Necessity

10.4.3 Chapeau

10.5 National Development Priorities under the CDM

10.6 In Sum

Chapter 11 Concluding Remarks on Part II

Part III Sustainable Development as a Princip le of Integrati on of Climate and Trade Law

Introduction

Chapter 12 Is there a Need for the Principle of Sustainable Development in WTO Dispute Settlement?

12.1 Introduction

12.2 Interpretation in International Adjudication

12.3 Interpretation of WTO Norms: Principles and their Limitations

12.3.1 Textual Interpretation

12.3.2 Evolutionary Interpretation

12.3.3 Teleological Interpretation

12.3.4 Interpretation with Reference to Norms outside the Treaty: Art. 31.3(c) VCLT: General Comments

12.3.5 Article 31.3(c) VCLT in WTO Jurisprudence

12.4 Conclusions

Chapter 13 Principles of Conflict Resolution

13.1 Explicit Conflict Clauses

13.2 Implicit Conflict Clauses in the Kyoto Protocol and UNFCCC

13.3 Lex specialis derogat lege generali

13.4 Lex posterior derogat lege priori

13.5 Conclusions

Chapter 14 Applicability of Non-WTO Law in WTO Dispute Settlement

14.1 WTO Dispute Settlement and Public International Law

14.2 Jurisdiction and the Applicable Law in WTO Dispute Settlement

14.3 Sources of non-WTO Law in WTO Dispute Settlement

14.3.1 Customary Law

14.3.2 General Principles of Law

14.4 In Sum

Chapter 15 Applicability of the Principle of Sustainable Development in WTO Dispute Settlement

15.1 Applicability as Part of WTO Law

15.2 Applicability as a General Principle of Law

15.3. Mandatory or Permissive Application?

15.4 Dispute Settlement Authority and 'Judicial Activism'

15.5 In Sum

Chapter 16 Application of the Principle of Sustainable Development: Practical Consequences

16.1 The Aim of Creating Coherence

16.2 Nature of a Legal Test for Sustainable Development

16.3 Possible Elements of a Legal Test for Sustainable Development

16.3.1 Identification of Affected Interests

16.3.2 Primary Sustainability: Type and Strength of Interests Protected by the Measure

16.3.3 Secondary Sustainability: Assessment of the (Broader) Sustainability of the Measure

16.3.4 Proportionality of Means and Ends

16.3.5 Procedurals

16.3.6 Legal Effect

Chapter 17 'Case' Studies: CDM and Emissions Trading

17.1 Clean Development Mechanism

17.1.1 Identification of Affected Interests

17.1.2 Strength of the Protected Interest

17.1.3 Contribution to Sustainable Development in a Broader Context

17.1.4 Proportionality

17.1.5 Procedural Requirements

17.1.6 In Sum

17.2 Emissions Trading

17.2.1 Identification of Affected Interests

17.2.2 Strength of the Protected Interest

17.2.3 Sustainable Development in a Broader Context

17.2.4 In Sum

17.3 Summary

Chapter 18 Final Conclusions

18.1 Sustainable Development in Climate Change and International Trade Law

18.2 Sustainable Development as a Legal Principle of Integration

18.3 Areas of Conflict between Climate Measures and WTO Law

18.4 Application of the Principle of Sustainable Development in the Context of Climate and Trade Law Conflicts

Table of Cases

Bibliography

Index