Balancing human rights, environmental protection and international trade : lessons from the EU experience / Emily Reid.
2015
KJE6569 .R45 2015 (Map It)
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Title
Balancing human rights, environmental protection and international trade : lessons from the EU experience / Emily Reid.
Published
Oxford ; Portland, Oregon : Hart Publishing, 2015.
Copyright
©2015
Call Number
KJE6569 .R45 2015
ISBN
9781841138268 (hardback)
1841138266 (hardback)
1841138266 (hardback)
Description
xl, 324 pages ; 24 cm.
System Control No.
(OCoLC)901987238
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Fisch Fund
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Fisch Fund
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
pt. 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 EC: 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: Lome IV (1990)
148
A.
Article 366a: Introducing Human Rights Conditionality to Lome (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 Conditionality
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
pt. 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 from the EU
307
A.
EU Lessons: The Internal Perspective
308
B.
EU Lessons: The External Perspective
309
V.
Concluding Comments
311
Index
314