In 1987 the World Commission on Environment and Development (WCED) presented “Our Common Future” report, better known as the Brundtland Report[i], which established the classical definition of sustainable development. In its Chapter 2, the report stated that “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. From that moment, the “idea” of sustainable development has become common in international law.
This definition has been the starting point for some scholars who have identified the essential elements of sustainable development, i.e.: the principle of intergenerational equity, the principle of sustainable use, the principle of equitable use or intragenerational equity, and the principle of integration[ii]. The purpose of this writing is to show that a new element –however different in nature- should complement the list of elements of sustainable development, at least from a practical approach: the public morals concern in international trade. As will be developed in the text, though public morals concern is not an essential principle of sustainable development as those abovementioned, it is a relevant element that should complement the main concept in order to get a more strong enforcement of the objectives set by environmental law, as was shown in the EC — Seal Products dispute decided by the Appellate Body (AB) of the World Trade Organization (WTO) on May 22nd 2014.
The writing will be divided in three parts: It starts examining the nature and principles contained in sustainable development; secondly, the EC — Seal Products dispute will be studied in order to conclude how –finally- the public morals concern should be regarded as a legal element that can support the effective enforcement of environmental law within the context of trade and economic measures.
Nature and principles contained in sustainable development
As mentioned in the introduction, the Brundtland report defined sustainable development. In the same document, the WCED stated that such concept contains two key elements: the concept of ‘needs’ and the idea of limitations on the environment’s ability to meet present and future needs. The same definition was adopted by the 1992 Rio Declaration on Environment and Development (principle 3). Other kind of definition, yet recognizing the elements of the Brundtland report, can be found in the 2002 Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of The Northeast Pacific, which emphasizes human beings as the “centre and primordial subject of development” (article 3.1.a). In that order, the ICJ stated that the essence of sustainable development is the “interconnectedness between equitable and reasonable utilization of a shared resource and the balance between economic development and environmental protection”[iii].
However, “Our Common Future” report and other instruments of International Law did not establish the legal nature of sustainable development, either a principle or simply as a concept. It was the 1997 decision of the International Court of Justice the one that described sustainable development as a concept, when it stated that “[t]his need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development”[iv]. Nevertheless, international tribunals do not have a single view on the nature of sustainable development. In the Award of the Arbitration Regarding the Iron Rhine, the Permanent Court of Arbitration, when it referred to international environmental law, understood development as follows:
“[…] Importantly, these emerging principles now integrate environmental protection into the development process. Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent, or at least mitigate, such harm […]. This duty, in the opinion of the Tribunal, has now become a principle of general international law.”[v]
The issue of the nature of sustainable development is important in order to determine legal consequences of such “notion” in international law. “First, if it is a legal principle, it certainly gives weight to emerging principles which are on their way to becoming legal norms. Secondly, when a project is at variance with the essence of sustainable development it must be considered illegal”[vi]. In any case, despite its qualification, sustainable development needs to be analyzed from its essential elements. According to Philippe Sands, sustainable development is composed by four elements or principles[vii]:
- The need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity);
- The aim of exploiting natural resources in a manner which is ‘sustainable’, or ‘prudent’, or ‘rational’, or ‘wise’ or ‘appropriate’ (the principle of sustainable use);
- The ‘equitable’ use of natural resources, which implies that use by one state must take account of the needs of other states (the principle of equitable use, or intragenerational equity); and
- The need to ensure that environmental considerations are integrated into economic and other development plans, programmes and projects, and that development needs are taken into account in applying environmental objectives (the principle of integration).
None of those principles will be addressed in depth. However, as will be shown from a recent World Trade Organization case, a new element –although related to the sustainable use principle- should be added to the abovementioned.
EC — Seal Products and the public morals concern element
On May 22nd 2014, the Appellate Body (AB) of the WTO issued its decision on the EC –Seal Products dispute[viii]. The case related to the legal regime (Regulation EC No. 1007/2009 and Commission Regulation EU No. 737/2010) by the European Union on the ban over the importation and marketing of seal products (a typical example of environmental concern). Canada and Norway challenged the EU seal regime, saying it violated some provisions of the Technical Barriers to Trade Agreement (TBT) and the General Agreement on Tariffs and Trade (GATT). In the decision of May 2014, the AB upheld the most relevant findings of the Panel Report issued on November 25 2013: Though the Appellate Body reverse the conclusion of the Panel related to the EU regulations as TBT measures[ix], it confirmed that the EU seal regime falls within paragraph (a) of Article XX of GATT (the one that sets the exceptions to the general rules), as long as it was necessary to protect public morals, and as a consequence established the prohibition was justified under the GATT.
The relevance of this case for environmental law, and particularly the sustainable development concept/principle, lays on the defense -and success- of the regulations made by de EU. Although the WTO has expressly recognized the importance of sustainable development in the Marrakesh Agreement[x], the Doha Declaration[xi] and some relevant case law[xii], the EU didn’t base its position on environmental law arguments, but on the need of attending public moral concerns regarding seal welfare[xiii]. More explicitly, the Panel found that “European Union never submitted that the protection of seal welfare as such was the objective of the EU Seal Regime”[xiv].
Nevertheless, the conclusion of both the Panel and the Appellate Body has important consequences for sustainable development as it endorsed a measure that at the end of the day protects environment (in this case seals) and follows some elements of sustainable development, such as the sustainable use principle. Though it was not based on a classical international environmental law instrument but in a trade law one (the GATT), the EC – Seal Products dispute demonstrated that the public morals concern issue can be an important element that may strengthen the application and boost the respect for sustainable development.
As has been seen, sustainable development has proved to be a complex term that is under constant development and evolution. This can be seen on its disputed nature (concept or principle) and on the elements or principles that compose it. Although the principles of intergenerational equity, sustainable use, equitable use or intragenerational equity, and integration may cover the essential elements of sustainable development, a new element arising from international economic law should be taken into account when enforcing some provisions of environmental law. As the EC – Seal Products case reflects, public morals concern should be regarded as a legal element that supports the enforcement of environmental law and potentiates sustainable development in the framework of international trade.
[i] World Commission on Environment and Development (1987). Our Common Future. Available at: http://conspect.nl/pdf/Our_Common_Future-Brundtland_Report_1987.pdf
[ii] Cfr. Sands, Philippe, Principles of International Environmental Law, Cambridge University Press, New York, 2003, p. 253.
[iii] Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, para. 177.
[v] Arbitration Regarding the Iron Rhine (“Ijzeren Rijn”) Railway, between the Kingdom of Belgium and the Kingdom of the Netherlands (May 24, 2005), Permanent Court of Arbitration, Award of the Arbitral Tribunal, para 59. Available at: http://www.pca-cpa.org/showfile.asp?fil_id=377
[vi] Dominice, Christian. “The Iron Rhine arbitration and the emergence of a principle of general international law”. In Tafsir Malick Ndiaye and Rüdiger Wolfrum (Eds), Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah. Martinus Nijhoff Publishers, Leiden, 2007, p. 1074
[vii] Sands, Philippe, Principles of International Environmental Law, op. cit, p. 253.
[viii] Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (May 22, 2014), available at https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?Query=(@Symbol=%20wt/ds400/ab/r*%20not%20rw*)&Language=ENGLISH&Context=FomerScriptedSearch&languageUIChanged=true#
[ix] EC – Seal Products, Para. 5.59
[x] Preamble of the Marrakesh Agreement Establishing the World Trade Organization, April 15 1994.
[xi] Ministerial Declaration, Ministerial Conference – Fourth Session, Doha, Qatar, 14 November 2001.
[xii] AB Report, United States — Import prohibition of certain shrimp and shrimp products, para. 129. Available at http://www.wto.org/english/tratop_e/dispu_e/58abr.pdf
[xiii] EC – Seal Products, Para. 2.107
[xiv] EC – Seal Products, Para. 5.183.