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Crafting Trade and Investment Accords for Sustainable Development

Crafting Trade and Investment Accords for Sustainable Development

Athena’s Treaties

MARIE- CLAIRE CORDONIER SEGGER

3

Great Clarendon Street, Oxford, OX2 6DP, United Kingdom

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Marie-Claire Cordonier Segger 2021

The moral rights of the author have been asserted

First Edition published in 2021

Impression: 1

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above

You must not circulate this work in any other form and you must impose this same condition on any acquirer

Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland

Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America

British Library Cataloguing in Publication Data Data available

Library of Congress Control Number: 2020953018

ISBN 978–0–19–883134–1

DOI: 10.1093/oso/9780198831341.001.0001

Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY

Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Foreword

Professor Thomas Cottier

For all too long, the fields of international trade and investment, environmental and human rights law evolved in isolation, dealt with by separate epistemic communities. It is only recently that these fields are finding a common roof in international law for sustainable development, and are exposed to mutual interaction and debate. This volume makes a substantial contribution to this process. It is motivated by the concern that poorly regulated economic activities and normative contradictions are contributing substantially to global challenges such as climate change and the collapse of ecological systems, as well as to rising poverty and disrespect for human rights. It is motivated by the need for in-depth analysis with a view to bring about greater coherence, interaction, and integration among these fields of international law in future international agreements.

Professor Marie-Claire Cordonier Segger, senior director of the Centre for International Sustainable Development Law and Leverhulme Trust visiting professor at the University of Cambridge, also a full professor of international law in Canada, is a pioneer and one of the world’s leading legal scholars in interfacing trade, investment, and sustainable development. In the initial pages of this volume, she notes that if the ancient Greek goddess Athena, patroness of justice, wisdom, and the crafts, were to consider the current state of globalization, she would be deeply concerned, perhaps even horrified. She likely would induce oracles changing our minds and perceptions. This book is an invitation to do so and to choose a different path, extended to the thousands of decision-makers, advisors, and academics whose efforts shape our potential for success in international, regional, and bilateral trade, investment, and sustainable development endeavours. It is a call for sound scientific assessment, legal scholarship and analysis; for reasoned legal dialogue and drafting; for careful and creative legal drafting; for coherent and consistent implementation and compliance; and for peaceful, rational settlement of disputes.

The author’s extensive law and policy research is international in scope and grounded in a profoundly humanist, interactional understanding of the law which views legal principles and rules as both shaping and being shaped by political, economic, and social compromise. She proposes a series of tailored legal solutions to the challenges wrought by globalization which, rather than closing borders and building walls, require the careful crafting and negotiation of more effective, sophisticated international accords that integrate social and environmental considerations into economic development endeavours. In her view, by carefully identifying environmental and social concerns, then crafting and weaving appropriate provisions into trade and investment treaties, the accords themselves become more likely to succeed over the long term, in essence—more sustainable.

Through carefully researched legal scholarship, the author defends the need for deeper international collaboration, tracing interactional regimes that extend across nationalist views and borders and seeking to achieve common goals of integrated economic and social progress and environmental protection. Her objective is to explore innovative ways to

extend relationships among communities and States through a well-crafted, just, and more sustainable globalization. Her work is both analytical and aspirational. It makes a profound contribution to the dialogue and process of bringing about normative coherence with a view to produce the public goods required to meet the challenges of our times. I truly recommend the volume to you.

Preface

Professor Stephen J Toope

Over the last fifty years or so, we have seen extensive international environmental treatymaking. Many multilateral environmental accords (MEAs) contain provisions to secure sustainable development in different ways across diverse fields. Parallel to these MEAs, new international economic treaties are also being negotiated. In principle, as this volume argues, environmental and social priorities should be considered fully in economic development decision-making, and in international trade law and policy as part of that economic decision-making. While not well-documented before now, more and more trade and investment accords address the global Sustainable Development Goals of the United Nations. Yet, comparatively little robust scholarly legal analysis exists on how trade and investment rules affect a State’s potential for sustainable development, and how economic treaties might foster rather than frustrate sustainable development.

Building on years of careful comparative legal research and several edited scholarly collections, this volume addresses these gaps. The author argues that in many countries, treaty decision-makers, negotiators, and their advisors are finding innovative ways to integrate environmental and social considerations into a new generation of trade and investment agreements, particularly in regional economic accords. Through this integration, international trade and investment law could be better positioned to contribute to sustainable development. In particular, Professor Cordonier Segger examines three key tensions, which States can address by adopting measures to integrate environmental and social development priorities into the economic rules of trade and investment treaties themselves. These tensions, the author suggests, are interlinked, as each has the potential to build economic law while, at the same time, explicitly or implicitly promoting the many facets of sustainable development. Further, the author proposes, procedural innovations such as impact assessments can assist in identifying, ex-ante, potential social, and environmental effects of a new economic treaty. Through a transparent, inclusive engagement process and reasoned debate, carefully crafted compromises can lead to policy coherence, rather than exacerbating social and economic marginalization, degradation, and conflict. By acknowledging and effectively addressing these tensions, international society and domestic citizenry can shape economic law to further sustainable development. In today’s anxious world, these findings also have profound significance for areas well beyond the realm of economic law and policy.

The volume explores the interactions between specialities in international law and, more fundamentally, the essential interactions that inform and lead to the creation of international law. Elsewhere, Professor Jutta Brunnée and I have developed an interactional account of legitimacy and legality in international law. We offer a framework for analysis by bringing together the concepts of shared understandings of actors and criteria of legality that build legitimacy in law. Law is then further supported by continuing practices of legality or is undermined if those practices degrade. Applying this framework, this volume builds on an understanding of international law as inherently interactional. It demonstrates

that without these forms of social interaction, particularly shared understandings of the actors involved, bringing together the lex specialis of international economic, human rights and environmental law is most difficult. However, shared understandings, when connected with the instantiation of criteria of legality, allow for dialogues across specialties and disciplines. Within this framework, as the volume demonstrates, legitimacy exists because of the will and understanding of the Parties even while addressing global challenges from different fields and experiences.

It is a pleasure to commend this volume to readers from many audiences. The book offers valuable insights in many dimensions. The study of innovations in treaty negotiation can provide useful advice for the future crafting of trade agreements that take sustainable development seriously, for the interpretation of trade treaties and also for the continuing WTO negotiations. It can also provide those participating in treaty negotiations with essential lessons as to how inclusive treaty agreements can be created and implemented when there are multiple—and often competing—identities, constituencies and interests involved. The lessons of this volume will appeal to those working as officials and analysts in international, environmental and development-related institutions, where the issues it addresses arise on a near-daily basis. For academics, professors and students alike, this volume poses and answers deeply challenging questions that lie at various intersections amongst environmental law, sustainable development, international economics and international political economy. Practicing lawyers and attorneys, those working in positions as environmental advisors and those consulting with governments, will find that the volume offers fresh analytical perspectives on difficult law and policy issues, as well as an assessment of the ways in which they can be addressed now and in the future. Finally, civil society organizations and foundations, notably those prodding us to meet the world’s sustainable development goals, will find that this volume offers unique insight into process and law. It also points to where their efforts may best be deployed during treaty negotiations and to fill in the gaps of existing treaty regimes.

This volume brings the voice of justice and wisdom from antiquity to modernity through the lens of international law both as an appropriate continuation and in a distinctly novel manner. It offers a fitting tribute to Athena, and to all the voices for future generations that continue to strive— across all disciplines and professions— to build a better world to leave our children and grandchildren.

Acknowledgements

This volume is the result of nearly twenty years of legal research and comparative inquiry, with sincere thanks and acknowledgement due to key mentors, including my former Dean and current Vice-Chancellor Professor Stephen Toope, Professor Sir Christopher Greenwood and Professor Markus Gehring at the University of Cambridge; Professor Armand de Mestral, Professor Richard Janda, Professor Francois Crepeau and Professor Andrea Bjorklund at McGill University; Professor Daniel C Esty at Yale University; and especially Professor Vaughan Lowe, Professor Dan Sarooshi, Professor Christopher McCrudden and Professor Catherine Redgwell who supervised and guided the original international law doctoral research at the University of Oxford which laid the foundations for this volume, as well as Professor Thomas Cottier and Professor Rodrigo Polanco at the World Trade Institute in the University of Bern; and also Dr Ashfaq Khalfan, valued friend and Chair of the Centre for International Sustainable Development Law (CISDL) Board of Governors, along with all my CISDL colleagues. In addition, I am deeply grateful to David Runnalls, Aaron Cosbey and the late Konrad von Moltke at the International Institute for Sustainable Development (IISD) whose insights and knowledge shaped this work; to Ricardo Melendez-Ortiz whose mentorship and guidance at the International Centre for Trade and Sustainable Development (ICTSD) also significantly strengthened this research; and to Bill Loris, Irene Khan, Paul Crowley, Dr Tom McInerney, Dr Dave Sadoff, Robert Buergenthal, Dr Ilaria Bottigliero, Erwin van der Borght, Dr Fabiano Andrade de Correa, Yolando Saito and other colleagues with whom I was privileged to collaborate at the International Development Law Organization (IDLO). I must especially deeply thank and recognize the invaluable research and drafting assistance of Emily Morison, Blessing Ajayi, Sebastien Jodoin, Patrick Reynaud, Oliver Taherzadeh and Rodrigo Mella, among others, without whose brilliance, long hours of revision and research assistance this volume could not exist. Finally, I must recognize the invaluable support and guidance provided by the late Hon Judge Charles D Gonthier, first Chair of the CISDL Board of Governors, and the late HE Judge CG Weeramantry, Patron of the CISDL, both of whom are deeply missed.

Sincere thanks are also due to Jack McNichol, Vijay Chandrasekaran, also originally John Louth, from Oxford University Press and their partners, for all their assistance and support in the publication process.

Finally, this volume is dedicated to Nico Cordonier Gehring and Jona Cordonier Gehring, two very prominent voices of the future generations that depend on all our efforts towards sustainable development for their survival.

17. Provisions to Integrate Environmental and Social Considerations into a Bilateral and Regional Trade and Investment Agreements

22. Integrating Social and Environmental Considerations into Trade and Investment Agreements, for

23. A Future Agenda for Crafting ‘Athena’s Treaties’ on Trade and Investment for Sustainable Development

Table of Treaties & Statutes

1. INTERNATIONAL TREATIES

Table of Bilateral and Regional Economic Agreements

EU-UK Trade and Cooperation Agreement (signed 30 December 2020, provisionally applied 1 January 2021) 377

UK-Japan Comprehensive Economic Partnership Agreement (signed 23 October 2020, entered into force 31 December 2020) 396

EU-Vietnam Trade and Investment Agreement (signed 30 June 2019, yet to be brought into force)

EU-Mercosur Trade Agreement (Political agreement reached on 28 June 2019)�

375

53, 64, 257, 374

United States-Mexico-Canada Agreement (USMCA) (signed 20 November 2018) 177, 185, 205, 210, 228, 319, 390

EU-Singapore Trade and Investment Protection Agreements (signed 19 October 2018, entered into force 13 February 2019) 376

EU-Japan Economic Partnership Agreement (signed 17 July 2018, entered into force 1 February 2019)

376

EU-Mexico New Trade Agreement—The Agreement in Principle (announced Brussels, 23 April 2018, negotiation concluded April 28, 2020)

179, 214

EU-Canada Comprehensive Economic and Trade Agreement (CETA) (signed 30 October 2016, entered into force 21 Sept 2017)

9, 19, 269, 270, 277, 280, 281, 283–286, 289, 294–297, 299, 300, 304, 365

Canada-Ukraine Free Trade Agreement (signed 11 July 2016, entered into force 1 August 2017)�

344

Georgia-European Free Trade Association (EFTA) Free Trade Agreement (signed 27 June 2016, entered into force 1 September 2017) 362

EU-South African Development Community (SADC) Interim Economic Partnership Agreement (signed 10 June 2016, entered into force 10 October 2016) 369

Canada-Honduras Free Trade Agreement (signed 5 November 2015, entered into force 1 October 2014) 346

China-Republic of Korea Free Trade Agreement (signed 1 June 2015, entered into force 20 December 2015) 355

Eurasian Economic Union (EAEU)-Vietnam (signed 29 May 2015, entered into force 5 October 2015) 377

Japan-Mongolia Economic Partnership Agreement (signed 10 February 2015, entered into force 7 June 2016)

EU-Ukraine Deep and Comprehensive Free Trade Agreement (signed 27 June 2014, entered into force 1 January 2016) �

EU-Republic of Moldova Free Trade Agreement (signed 27 June 2014, entered into force 1 July 2016)

379

374

373

EU-Georgia Free Trade Agreement (signed 27 June 2014, entered into force 1 July 2016) 372

Turkey-Malaysia Free Trade Agreement (signed 17 April 2014, entered into force 1 August 2015) 390

Republic of Korea-Australia Free Trade Agreement (signed 8 April 2014, entered into force 2 December 2014) 380

Canada-Republic of Korea Free Trade Agreement (signed 11 March 2014, entered into force 23 April 2014) � � � 45, 71, 346

Switzerland-China Free Trade Agreement (signed 6 July 2013, entered into force 1 July 2014)

Bosnia and Herzegovina-European Free Trade Association (EFTA) Free Trade Agreement (signed 24 June 2013, entered into force 1 January 2015)

389

361

EFTA-Central America Free Trade Agreement (signed 24 June 2013, entered into force 19 August 2014) 289, 294, 304, 362

Costa Rica-Colombia Free Trade Agreement (signed 22 May 2013, entered into force 1 August 2016) 185, 209

Iceland-China Free Trade Agreement (signed 15 April 2013, entered into force 1 July 2014)

Hong Kong, China-Chile Free Trade Agreement (signed 7 September 2012, entered into force 9 October 2014)

378

378

Republic of Korea-Turkey Free Trade Agreement (signed 1 August 2012, entered into force 1 May 2013)

381

EU-Central America Association Agreement (signed 29 June 2012, entered into force 1 August 2013 with Honduras, Nicaragua and Panama, since 1 October 2013 with Costa Rica and El Salvador, and since 1 December 2013 with Guatemala) 170, 180, 183, 206, 234, 241, 245, 247, 318, 324

China-Costa Rica Free Trade Agreement (signed 8 April 2011, entered into force 1 August 2011)�

Peru-Republic of Korea Free Trade Agreement (signed 21 March 2011, entered into force 1 August 2011)

358

�270, 274, 287, 288, 295, 297, 298, 306, 387

India-Japan Comprehensive Partnership Agreement (signed February 2011, entered into force 1 August 2011) 378

EFTA-Montenegro Free Trade Agreement (signed 3 November 2010, entered into force 1 September 2012) 360

EU-South Korea Free Trade Agreement (signed 6 October 2010, provisionally entered into force 1 July 2011 and formally ratified in December 2015) 239, 240, 244, 245, 252, 271, 281, 307, 309, 370

Ukraine-European Free Trade Association (EFTA) Free Trade Agreement (signed 24 June 2010, entered into force 1 June 2012)

EFTA-Peru Free Trade Agreement (signed 24 June 2010, entered into force 1 July 2011)

361

360

Bolivia-Mexico Free Trade Agreement (signed 17 May 2010, entered into force 7 June 2010) 177, 341

Canada-Panama Free Trade Agreement (signed 14 May 2010, entered into force 1 April 2013) 43, 347

Costa Rica-Singapore Free Trade Agreement (signed 6 April 2010, entered into force 1 July 2013) 359

EU-Colombia-Peru Free Trade Agreement (signed June 2012, entered into force for Peru 1 March 2013, Colombia 1 August 2013 and Ecuador 1 January 2017)

�170, 179, 181, 188, 193, 198, 200, 219, 225, 230, 236, 245, 252, 281, 282, 286, 289, 290, 295, 297–300, 302, 305, 366

Hong Kong, China-New Zealand Free Trade Agreement (signed 29 March 2010, entered into force 1 January 2011) 385

EFTA-Serbia Free Trade Agreement (signed 17 December 2009, entered into force 1 October 2010)

361

EFTA-Albania Free Trade Agreement (signed 7 December 2009, entered into force 1 November 2010) 360

New Zealand-Malaysia Free Trade Agreement (signed 26 October 2009, entered into force 1 August 2010) 386

Turkey-Chile Free Trade Agreement (signed 14 July 2009, entered into force 1 March 2011) 354

Canada-Jordan Free Trade Agreement (signed 28 June 2009, entered into force 1 October 2012)�

Peru-China Free Trade Agreement (signed 28 April 2009, entered into force 1 March 2010) �

345

268, 271, 272, 274, 276, 287, 288, 292, 302, 305, 356

Japan-Switzerland Economic Partnership Agreement (signed 19 February 2009, entered into force 1 September 2009) 278, 280, 285, 294, 295, 379

Canada-Colombia Free Trade Agreement (signed 21 November 2008, entered into force 15 August 2011) 169, 209, 212, 269, 288, 306, 345

EU-CARIFORUM States Economic Partnership Agreement (signed 30 October 2008, entered into force 29 December 2008)

25, 71, 170, 181, 183, 193, 195, 198, 218, 224, 225, 230, 236, 239, 241, 243, 244, 318, 348

Chile-Australia Free Trade Agreement (signed 30 July 2008, entered into force 6 March 2009)

350

Canada-Peru Free Trade Agreement (signed 29 May 2008, entered into forced 1 August 2009) 25, 71, 169, 209, 212, 239, 274, 343

Peru-Singapore Free Trade Agreement (signed 29 May 2008, entered into force 1 August 2009) 387

EU-Serbia Stabilization and Association Agreement (signed 29 April 2008, entered into force 1 September 2013) 364

China-New Zealand Free Trade Agreement (signed 7 April 2008 entered into force 1 March 2008)

Canada-EFTA Free Trade Agreement (signed 26 January 2008, entered into force 1 July 2009)

385

342

EU-Bosnia and Herzegovina Stabilization and Association Agreement (signed 1 January 2008, entered into force 1 July 2008) 363

EU-Montenegro Stabilisation and Association Agreement (signed 15 October 2007, entered into force 1 May 2010)

364

Chile-Japan Agreement for a Strategic Economic Partnership (signed 27 March 2007, entered into force 3 September 2007) 351

Japan-Indonesia Economic Partnership Agreement (signed 20 August 2007, entered into force 1 July 2008) 380

Republic of Korea-United States Free Trade Agreement (signed 30 June 2007, entered into force 15 March 2012)

United States-Panama Trade Promotion Agreement (signed 28 June 2007, entered into force 31 October 2012)

Brunei Darussalam-Japan Free Trade Agreement (signed 18 June 2007, entered into force 31 July 2008)

43, 393

394

379

Free Trade Agreement between the Republic of China (Taiwan), the Republic of El Salvador and the Republic of Honduras (signed 7 May 2007, entered into force 3 September 2007, entered into force for Honduras: 15 July 2008, for El Salvador: 1 March 2008, for Taiwan: 1 January 2008) 362

Chile-Colombia Free Trade Agreement (signed 27 November 2006, entered into force 8 May 2009)

169, 209, 350

United States-Colombia Trade Promotion Agreement (signed 22 November 2006, entered into force 15 May 2012)

Chile-Peru Free Trade Agreement (signed 22 August 2006, entered into force 1 March 2009)

221, 392

353

Chile-Panama Free Trade Agreement (signed 27 June 2006, entered into force 7 March 2008) 354

Southern African Customs Union (SACU)-European Free Trade Association (EFTA) Free Trade Agreement (signed 26 June 2006, entered into force 1 May 2008) 389

EU-Albania Stabilization and Association Agreement (signed 12 June 2006, entered into force 1 April 2009)

United States-Peru Trade Promotion Agreement (signed 12 April 2006, entered into force 1 February 2009)

US-Oman Free Trade Agreement (signed 19 January 2006, entered into force 1 January 2009)

363

10, 25, 71, 169, 177, 206, 207, 212, 221, 237, 239, 242, 245, 246, 324, 388

Panama-Singapore Free Trade Agreement (signed 1 March 2006, entered into force 24 July 2006) 386

200

MERCOSUR-Peru Free Trade Agreement, ACE No 58 (signed 30 November 2005, entered into force December 2005) 381

Chile-China Free Trade Agreement (signed 18 November 2005, entered into force 1 August 2010) 350

Guatemala-Taiwan Free Trade Agreement (signed 22 September 2005, entered into force 1 July 2006) 378

Trans-Pacific Strategic Economic Partnership Agreement (signed 3 June 2005, entered into force 28 May 2006)

177, 178, 184, 202, 209, 213, 234, 353

Andean-MERCOSUR Economic Complementarity Agreement No 59 (signed 18 October 2004, entered into force for Paraguay-Colombia, Ecuador and Venezuela: 19 April 2005, for Ecuador-Argentina, Brazil and Uruguay: 1 April 2005, for BrazilColombia: 1 February 2005, for Brazil-Venezuela: 1 February 2005, for Colombia-Argentina: 1 February 2005, for Colombia-Uruguay: 1 February 2005, for Venezuela-Argentina: 5 January 2005, for Venezuela-Uruguay: 5 January 2005)

177, 341

Mexico-Japan Free Trade Agreement (signed 17 September 2004, entered into force 1 April 2005)

US-Bahrain Free Trade Agreement (signed 14 September 2004, entered into force 1 January 2006)

383

392

Nicaragua-Chinese Taipei Free Trade Agreement (signed 20 August 2004, entered into force 1 January 2008) 275, 278, 279, 283, 286, 294–296, 302, 304, 356

US-Australia Free Trade Agreement (signed 18 May 2004, entered into force 1 January 2005) 209

CARICOM-Costa Rica Free Trade Agreement (signed 9 March 2004, entered into force for Costa Rica-Barbados: 1 August 2006, for Costa Rica-Guyana: 30 April 2006, for Costa Rica-Trinidad and Tobago: 15 November 2005)

347

Mexico-Uruguay Free Trade Agreement (signed 15 November 2003, entered into force 15 July 2004)

169, 385

Panama-Taiwan Free trade Agreement (signed 21 August 2003, entered into force 1 January 2004) 386

Chile-European Free Trade Association (EFTA) Free Trade Agreement (signed 26 June 2003, entered into force 1 December 2004) 351

Chile-US Free Trade Agreement (signed 6 June 2003, entered into force 1 January 2004) 25, 26, 33, 42–44, 54, 55, 57, 58, 60, 66, 67, 70, 169–172, 176, 178, 184–195, 197–203, 206, 207, 209–212, 214, 215, 217, 219, 221, 222, 233, 227, 228, 230, 231, 233, 238, 241, 242, 250, 254, 256, 257, 259–262, 319, 354

US-Singapore Free Trade Agreement (signed 6 May 2003, entered into force 1 January 2004)

Korea-Chile Free Trade Agreement (signed 15 February 2003, entered into force 1 April 2004)

396

352

Central America-Panama Free Trade Agreement (signed 6 March 2002, entered into force for Costa RicaPanama: 23 November, for 2008 El Salvador-Panama: 11 April 2003, for Guatemala-Panama: 22 June 2009, for Honduras-Panama: 9 January 2009, for Nicaragua-Panama: 21 November 2009) 349

Canada-Costa Rica Free Trade Agreement (adopted 23 April 2001, entered into force 1 November 2002)�

169, 177, 185, 196, 203, 206, 213, 216, 217, 221, 222, 230, 342

Mexico-European Free Trade Association (EFTA) Free Trade Agreement (signed 27 November 2000, entered into force 1 July 2001)

381

US-Jordan Free Trade Agreement (signed 24 October 2000, entered into force 17 December 2001) 209

Mexico-Northern Triangle Free Trade Agreement (signed 29 June 2000 by Honduras, El Salvador and Guatemala, entered into force for El SalvadorGuatemala-Mexico: 15 March 2001, for Honduras-Mexico: 1 June 2001) 169

Mexico-Israel Free Trade Agreement (adopted 10 April 2000, entered into force 1 July 2000)

EU-South Africa Trade & Development Cooperation Agreement (signed 11 October 1999, entered into force 1 May 2004)

2005, for Guyana: 6 October 2004, for Dominican Republic: 5 February 2002, for Barbados: 1 December 2001, for Jamaica: 1 December 2001, for Trinidad and Tobago: 1 December 2001) 347

Chile-Mexico Free Trade Agreement

ACE No 41 (signed 17 April 1998, entered into force 1 August 1999) 352

Central America-Dominican Free Trade Agreement (signed 16 April 1998, entered into force for Costa Rica: 7 March 2002, for El Salvador: 4 October 2001, for Guatemala: 3 October 2001, for Honduras: 19 December 2001, for Nicaragua: 3 September 2002)

East African Community (EAC) (signed 30 November 1999, entered into force 7 July 2000)

185

359

Mexico-Nicaragua Free Trade Agreement (signed 18 December 1997, entered into force 1 July 1998) 169, 384

Mexico-EU Free Trade Agreement (signed 8 December 1997, entered into force 1 July 2000) 382

Bolivia-MERCOSUR Acuerdo de Complementación Económica

ACE No 36 (signed 17 December 1996, entered into force 28 February 1997)�

177, 341

Canada-Chile Free Trade Agreement (adopted 5 December 1996, entered into force 5 July 1997) 36 ILM 1079� (The modernized Canada-Chile Free Trade Agreement (CCFTA) entered into force on 5 February 2019)

42, 169, 177, 185, 192, 196, 203, 206, 213, 216, 217, 221, 228, 259, 342

Chile-MERCOSUR Free Trade Agreement (signed 25 June 1996, entered into force 1 October 1996) 352

Colombia-Mexico Free Trade Agreement

ACE No 33 (signed 13 June 1994, entered into force 1 January 1995) 357

Costa Rica-Mexico Free Trade Agreement (signed 5 April 1994, entered into force 1 January 1995)

358

383

181, 188, 367

CARICOM-Dominican Republic Free Trade Agreement (signed 22 August 1998, entered into force for Suriname: August

North American Free Trade Agreement (adopted 17 December 1992, entered into force 1 January 1994) (1993) 32 ILM 289 and 605

�10, 13, 18, 20, 23, 33, 42, 43, 45, 48, 61, 63, 81, 169, 176, 177, 179, 185, 190, 192, 201, 203–206, 210, 213, 214, 216, 217, 228, 229, 248, 259, 263, 319, 343

Table of Multilateral Treaties

Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 5, 8, 53, 322, 325, 374, 382

ILO Declaration on Social Justice for a Fair Globalization (adopted by International Labour Conference at its Ninety-Seventh Session 10 June 2008) �

� 285

United Nations Convention Against Corruption (adopted 31 October 2003, entered into force 14 December 2005) UN Doc A/58/422

308

International Treaty on Plant Genetic Resources for Food and Agriculture (adopted 3 November 2001, entered into force 29 June 2004) 15, 50, 81, 111, 182

Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) (2001) 40 ILM 532 55, 70, 107

Cartagena Protocol on Biosafety to the United Nations Convention on Biological Diversity (adopted 29 January 2000, entered into force 11 September 2003) 39 ILM 1027

56, 57, 81, 152

ILA Convention No� 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor (adopted 17 June 1999, entered into force 10 November 2000) 38 ILM 1207 208, 217, 223

ILO Declaration on Fundamental Principles and Rights at Work (adopted in 1998) 207, 208, 217, 223, 237, 285

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (adopted 10 September 1998, entered into force 24 February 2004) 2244 UNTS 337�

Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) (1998) 37 ILM 22

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted

Table of Treaties & Statutes

4 August 1995, entered into force 11 December 2001) UN Doc A/CONF�164/38

United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (opened for signature 14 October 1994, entered into force 16 December 1996)

51

107

1954 UNTS 3 (UNCCD) 103

Marrakesh Agreement Establishing the World Trade Organization (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 4

12, 145, 146, 152

Agreement on the Application of Sanitary and Phytosanitary Measures (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 493 � � � 57, 64, 148

Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995)

1868 UNTS 120 148

Agreement on Trade-Related Investment Measures (adopted 15 April 1994, entered into force 1 January 1995)

1868 UNTS 186�

159

64, 118

Agreement on Government Procurement (adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 194 193

Agreement on Trade-Related Aspects of Intellectual Property Rights (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 299�

�128, 132, 326

General Agreement on Trade in Services (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 183�

128, 132, 184, 190 Understanding on Rules and Procedures Governing the Settlement of Disputes (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 401 149

United Nations Convention on Biological Diversity (opened for signature 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79, 143 (UNCBD)

54, 56, 81, 243

United Nations Framework Convention on Climate Change (opened for signature 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107 (UNFCCC) 69, 152

Convention on the Rights of the Child, 20 November 1989, UNTS 1577

70

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992)

1673 UNTS 57 54, 204

Montreal Protocol on Substances that Deplete the Ozone Layer (adopted 16 September 1987, entered into force 1 January 1989) 1522 UNTS 3 67, 204

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, 21 I�L�M� 1245 (UNCLOS)

Convention on International Trade in Endangered Species of Wild Fauna and Flora (adopted 3 March 1973, entered into force 1 July 1975) 993 UNTS 243 (CITES)

51

and Justice in Environmental Matters in Latin America and Caribbean (Escazu Agreement) (adopted 4 March 2018, opened for signature 27 September 2018) 255, 260 Treaty of Lisbon (2007/C 306/01) dated 17 December 2007 89, 90, 94, 95

Canada-Costa Rica Environmental Cooperation Agreement (adopted 23 April 2001, entered into force 1 November 2002) 221, 230 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) (adopted 25 June 1998, entered into force on 30 October 2001) 2161 UNTS 447

49, 101, 204, 303

Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980)

1155 UNTS 331 22, 32, 52, 77, 87, 98, 109, 114, 130, 152, 178, 321

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966), entered into force 3 January 1976) GA Res 2200A (XXI), UN Doc A/6316 (1966), 993 UNTS 3 � � � 49, 65

Havana Charter for an International Trade Organisation (adopted 24 March 1948) UN Doc E/ Conf 2/78

� 121, 122

General Agreement on Tariffs and Trade (adopted 30 October 1947, provisionally entered into force 1 January 1948) 55 UNTS 194, CTS No 31 (1948) (GATT) 122, 129, 149, 163, 168, 185, 317, 325

Table of Further International Treaties

Regional Agreement on Access to Information, Public Participation

255, 260 Treaty of Amsterdam amending the Treaty on European Union (signed 2 October 1997, entered into force 1 May 1999) [1997] OJ C 340/1 89 Canada-Chile Environmental Cooperation Agreement (adopted 6 February 1997, entered into force 5 July 1997)

36 ILM 1196 221

Agreement Amending the Fourth ACP-EC Convention of Lomé (signed 4 November 1995) ACP-CE 2163/95 93, 95 Convention to Ban the Importation in Forum Islands Countries of Hazardous Wastes and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (Waigani Convention) (adopted 16 September 1995, entered into force 21 October 2001) 2161 UNTS 70 North American Agreement on Environmental Cooperation (adopted 13 September 1993, entered into force 1 January 1994) (1993)

32 ILM 1480 213, 228

Table of Cases

1. INTERNATIONAL COURT OF JUSTICE

Case Concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v Spain) (Second Phase, Separate Opinion of Judge Jessup) General List No 50 [1970] ICJ 3

Case Concerning East Timor (Portugal v Australia) (Judgment, Dissenting Opinion of Judge Weeramantry) General List No 84 [1995] ICJ 90 86

Case Concerning the Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v Iceland) (Merits, Dissenting Opinion of Judge Petrel) General List No 55 [1974] ICJ 3 86

Case Concerning the Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Separate Opinion of Vice President Weeramantry) [1997] ICJ 7 15, 79

Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Memorial of the Slovak Republic) 294 83, 84, 87, 113, 315

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Judgement) General List No 70 [1986] ICJ 14

Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Request for the Indication of Provisional Measures: Order of 13 July 2006) 16, 85, 86, 137, 315

Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) (Verbatim Record of the Public Sitting of 8 June 2006)

82

16, 85, 86, 137, 315

Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (Judgment) General List No 102 [2002] ICJ 625�

Fisheries Case (United Kingdom v Norway) (Judgement) General List No 5 [1951] ICJ 116

110

82

Kasikili/Sedudu Island (Botswana v Namibia) (Judgement) General List No 99 [1999] ICJ 1045 110, 115

North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (Judgement) [1969] ICJ 3 82

2. WORLD TRADE ORGANIZATION APPELLATE BODY AND PANEL

Brazil—Export Financing Programme for Aircraft—Recourse to Article 21.5 by Canada—Report of the Panel (9 May 2000) WT/DS46/RW 139

Brazil—Measures affecting Imports of Retreaded Tyres—Report of the Appellate Body (3 December 2007) WT/DS332/AB/R 188

Brazil—Measures affecting Imports of Retreaded Tyres—Report of the Panel (12 June 2007)

WT/DS332/R

EC—Measures Concerning Meat and Meat Products (Hormones) (13 February 1998)

WT/DS26/AB/R, WT/DS48/AB/R

European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries (7 April 2004) WT/DS246/AB/R

European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries—Report of the Panel (1 December 2003) WT/DS246/R

188

57, 112, 233

131

139

European Communities—Measures Affecting the Approval and Marketing of Biotech Products— Reports of the Panel—Annex F—Addendum (29 September 2006) WT/DS291/R/Add 4, WT/DS292/R/Add 4, WT/DS293/R/Add 4 112, 149, 233

European Community —Measures Affecting Asbestos and Asbestos-Containing Products (12 March 2001) WT/DS135/AB/R 152, 191

India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products—Report of the Panel (6 April 1999) WT/DS90/R 140

Korea—Various Measures Affecting Imports of Fresh, Chilled and Frozen Beef—Report of the Appellate Body (10 January 2001) WT/DS161/AB/R �

187

United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 by Malaysia—Report of the Appellate Body (22 October 2001) WT/DS58/AB/RW 5, 110, 112, 131

United States—Import Prohibition of Certain Shrimp and Shrimp Products—Recourse to Article 21.5 by Malaysia—Report of the Panel (15 June 2001) WT/DS58/RW 5, 110, 112, 131, 138

United States—Import Prohibition of Certain Shrimp and Shrimp Products—Report of the Panel (15 May 1998) WT/DS58/R 5, 112, 131

United States—Standards for Reformulated and Conventional Gasoline—Report of the Appellate Body (29 April 1996) WT/DS2/AB/R 131, 187

3. INTERNATIONAL TRIBUNAL ON THE LAW OF THE SEA

Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v European Community) (Order of 20 December 2000) Case No 7

4. EUROPEAN COURT OF JUSTICE

Case C-513/99 Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab, v Helsingin kaupunki, HKL-Bussiliikenne [2002] ECR I-07213

Case C-340/97 Nazli [2000] ECR I-957

Cases C-105/09 and C-110/09 Terre Wallonne ASBL and Inter-Environnement Wallonie ASBL v Région wallonne [2010]

5. REGIONAL COURTS

African Commission on Human and Peoples’ Rights Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria (2002) 96 AJIL 937

Inter-American Court of Human Rights Saramaka Peoples v Suriname (28 November 2007) Series C No 172

Inter-American Court of Human Rights Sawhoyamaxa Community v Paraguay (29 March 2006) Series C No 146

6. INTERNATIONAL ARBITRATIONS

Corporation v Canada (NAFTA)

Case (Italy v Venezuela) (1903) 10 RIAA 551

Glamis Gold v United States of America UNCITRAL (NAFTA)

In the Arbitration Regarding the Iron Rhine (Ijzeren Rijn) Railway (Belgium v Netherlands) Arbitral Award of 24 May 2005

Maffezini v Spain ICSID Case No ARB/97/7

Methanex v United States UNCITRAL (NAFTA)

MTD Equity Sdn Bhd & MTD Chile SA v Chile ICSID Case No ARB/01/7

Occidental Exploration and Production Company v Ecuador ICSID Case No ARB/06/11

Pope & Talbot v Canada (2002) 41 ILM 1347

59–60

List of Abbreviations

AA association agreement

AB Appellate Body

ABS access and benefit sharing

ACCTS Agreement on Climate Change, Trade and Sustainability

ACP African, Caribbean and Pacific

ASIL American Society of International Law

BITs bilateral investment treaties

BSTC Bilateral Scientific and Technical Commission

CAMPOCOOP National Confederation of Farming Cooperatives Representing Small Farmers

CARIFORUM Caribbean Forum

CCAEC Canada-Chile Agreement on Environmental Cooperation

CEC Commission for Environmental Co-operation

CES European Confederation of Trade Unions

CETA Comprehensive Economic and Trade Agreement

CIPMA Center for Environmental Investigation and Planning

CISDL Centre for International Sustainable Development Law

CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora

CONAF National Forest Corporation

CSR corporate social responsibility

CTD Committee on Trade and Development

CTE Committee on Trade and Environment

CUP Cambridge University Press

CUT Chilean Central Workers’ Union

DFAIT Canadian Department of Foreign Affairs and International Trade

DIRECON Chilean Office of International Economic Relations

DSB dispute settlement body

DSM dispute settlement mechanism

EAs environmental assessment

EC European Commission

EIA environmental impact assessment

EMIT Environmental Measures and International Trade

EPA economic partnership agreements

ER environmental review

ESA Eastern and South Africa

EU European Union

EZZ exclusive economic zone

FAO Food and Agriculture Association

FDI Foreign Direct Investment

FLEGT Forest Law Enforcement Governance and Trade

FTA free trade agreement

FTAA Free Trade Agreement of the Americas

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

GDP gross domestic product

GHG greenhouse gases

GMOs genetically modified organisms

GNI gross national income

IA impact assessment

IADB Inter-American Development Bank

IAEG-SDGs Inter-Agency and Expert Group on SDG Indicators

ICESCR International Covenant on Economic, Social and Cultural Rights

ICSID International Centre for the Settlement of Investment Disputes

ICTSD International Centre for Trade and Sustainable Development

IDPM Institute for Development Policy and Management

IISD International Institute for Sustainable Development

ILA International Law Association

ILO International Labour Organization

ITC International Trade Centre

IUCN International Union for Conservation of Nature and Natural Resources

IUU illegal, unreported and unregulated

JPAC Joint Public Advisory Committee

JPOI Johannesburg Plan of Implementation

LDCs least developed countries

LMOs living modified organisms

M&E measures mitigation and enhancement measures

MEA multilateral environmental agreement

MEBF Mercosur-EU Business Forum

MFN most-favoured nation

MoU Memorandum of Understanding

NAAEC North American Agreement on Environmental Cooperation

NACEC North American Commission for Environmental Cooperation

NAFTA North American Free Trade Agreement

NALCA North American Labour Cooperation Agreement

NAO National Administrative Offices

OAS Organization of American States

ODA official development assistance

OECD Organisation for Economic Co-operation and Development

OUP Oxford University Press

POPs persistent organic pollutants

PPMs processing and production methods

PRTR pollutant release and transfer register

REDD reduction of emissions from deforestation and forest degradation

RFMOs Regional Fisheries Management Organizations

RTAs regional trade agreements

SDGs Sustainable Development Goals

SIA sustainability impact assessment

SICE OAS Foreign Trade Information System

SIECA Secretariat for Central American Economic Integration

SMEs small and medium-sized enterprises

SNASPE National System of State Protected Wild Areas

SPS Agreement Agreement on the Application of Sanitary and Phytosanitary Measures

TBT technical barriers to trade

TPA Trade Promotion Agreement

TPP Trans-Pacific Partnership

TPRM Trade Policy Review Mechanism

TRIMS Agreement on Trade-Related Investment Measures

TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights

TPRM Trade Policy Review Mechanism

UK United Kingdom

UN United Nations

UN CBD United Nations Convention on Biological Diversity

UNCED 1992 UN Conference on Environment and Development

UN CESCR UN Committee on Economic, Social and Cultural Rights

UNCITRAL UN Commission on International Trade Law

UNCLOS UN Convention on the Law of the Seas

UNCSD United Nations Conference on Sustainable Development

UNCTAD UN Conference on Trade and Development

UNECOSOC UN Economic and Social Council

UNEP UN Environment Programme

UN FCCC UN Framework Convention on Climate Change

UN GA UN General Assembly

UNHRC UN Human Rights Council

US United States

USMCA United States of America, the United Mexican States, and Canada Agreement

USTR United States Trade Representative

VCLT Vienna Convention on the Law of Treaties

WHO World Health Organization

WIPO World Intellectual Property Organization

WSSD World Summit on Sustainable Development

WTO World Trade Organization

SECTION ONE INTRODUCTION