Sustainable Development as a Legal Argument for the Global South

of Paper As a concept, sustainable development has pervaded much of the international legal discourse regarding the world environment of the past thirty years. Sustainable development is meant to balance economic, social and environmental objectives against one another. This reflects the growing ecological and economic interdependence between nations. As stated in the Brundtland Report, the economy and ecology are increasingly intertwined into a ‘seamless net of causes and effects’. Concerted efforts on local, regional and global levels are necessary to tackle worsening pollution and climate change. This paper argues that it is vital to examine the nexus between international trade and environmental sustainability from a Southern perspective. In interpreting their obligations to sustainable development, the North and the World Trade Organization frequently overlook the concerns of the South, thereby perpetuating underdevelopment and global inequality. Consequently, this paper will examine how sustainable development can be achieved through trade, by utilising a case study of the fisheries and aquaculture sector in Bangladesh. This example allows detailed analysis of key issues for the trade-environment nexus from the perspective of a developing nation. Firstly, this paper will discuss the emergence of the trade-environment nexus in international law and the need for a mutually supportive approach towards economic growth and environmental protection. For Bangladesh, the fisheries and aquaculture industry helps to drive economic growth and development. Secondly, the paper will address how the WTO has approached sustainable development, with particular reference to the scope of the General Agreement on Tariffs and Trade (GATT) Article XX exceptions and the application of Articles I and III. This analysis will include the Most Favoured Nation principle and other relevant considerations for trade with the South. As a concept, sustainable development has pervaded much of the international legal discourse regarding the world environment of the past thirty years. Sustainable development is meant to balance economic, social and environmental objectives against one another. This reflects the growing ecological and economic interdependence between nations. As stated in the Brundtland Report, the economy and ecology are increasingly intertwined into a ‘seamless net of causes and effects’. Concerted efforts on local, regional and global levels are necessary to tackle worsening pollution and climate change. This paper argues that it is vital to examine the nexus between international trade and environmental sustainability from a Southern perspective. In interpreting their obligations to sustainable development, the North and the World Trade Organization frequently overlook the concerns of the South, thereby perpetuating underdevelopment and global inequality. Consequently, this paper will examine how sustainable development can be achieved through trade, by utilising a case study of the fisheries and aquaculture sector in Bangladesh. This example allows detailed analysis of key issues for the trade-environment nexus from the perspective of a developing nation. Brief Biography of Author Shawkat Alam is an Associate Professor of Law and Director of the Centre for Environmental Law at Macquarie University, Sydney, Australia, where he teaches and researches in the areas of international and environmental law. Shawkat is currently the Acting Dean of Macquarie Law School. He has previously been an academic in the Department of Law at Dhaka University, and he has also taught at Rajshahi University, Bangladesh. Shawkat holds an LLB (Hons) from Rajshahi University, an LLM from Dhaka University and a PhD from Macquarie University. Shawkat’s teaching and research expertise are in the areas of international law, international environmental law, and the international trade and sustainable development interface. He is the author of the book, Sustainable Development and Free Trade (Routledge, 2008). He has published extensively in his area of research in scholarly and refereed journals. His recent co-edited books include International Environmental Law and the Global South (Cambridge University Press, 2015), International Trade Law and the WTO (Federation Press, 2013), Routledge Handbook of International Environmental Law (Routledge, 2012), Globalisation and the Quest for Social and Environmental Justice: The Relevance of International Law in an Evolving World Order (Routledge, 2011), and Issues in Human Rights (Atlantic Publishers, 2010). Shawkat has served as an International Expert for United Nations Industrial Development Organization’s Quality Support Programme in Bangladesh

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Recent conversations about the WTO dispute between the Faroe Islands and the EU over shared stocks of mackerel and herring in the North Atlantic remind us that there is an undeniable relationship between international trade regulation and concerns about the environment, including the sustainable development of natural resources. This paper explores some of the ways in which the international trade regime attempts to balance both of these concerns. The most obvious example of such balancing is found in Article XX of the General Agreement on Tariffs and Trade (GATT). Historically environmental measures, including those put in place to ensure sustainable natural resource development, have been considered under either (or both) Articles XX(b) and XX(g). The WTO’s recent decision in EC-Seal Products dispute on the legality of a regime that bans seal products from the European Union (EU) market, however, raises interesting questions about whether the public morals exception articulated in GATT Article XX(a) could be used to justify otherwise GATT-illegal measures on grounds that environmental protection (including the sustainable development of natural resources such as Arctic fisheries) is a public moral concern within a state. This paper seeks to explore those questions and specifically the considerations that legislators and policy makers should have in mind when developing environmental regulations that may impact international trade.

Nature of International Law: Is International Law a Law?

Is International Law a Law?

As the process of fragmentation of international public law has enabled the formation of numerous legal regimes, the question of the qualification of the legal order of the European Union (EU) arises. For a long time, it was not percieved as an self-contained regime. The classification contained in the International Law Commission's Report "Fragmentation of International Law: Difficulties arising from Diversification and Dissemination of International Law" indirectly contributed to such qualification. This Report classifies the EU legal order within the section on regionalization, thus relativizing it by reducing it to the cooperation of states determined only by geographical criteria. Although indisputable, the geographical criterion is of secondary value to a number of other arguments that take into account its qualitative dimension. Thus, the paper raises the key question of whether the EU legal order has reached such a level of development and quality that it can be considered a self-contained legal regime. Searching for answers to the research question, the paper analyzes arguments pro et contra. Arguments against the notion of the EU legal order as a self-contained legal regime relate to the omnipresence of general international public law, which necessarily implies the connection of the specialized EU law with general international law. In addition, the arguments on the origin, subjects and the manner of creating EU law are emphasized because they are inseparable from international law, for which reason it is denied the characteristic of independence. The emphasis on these arguments supports the thesis that EU law is and remains only a subsystem of international law, which would be especially visible in case of inadequate regulation of state responsibility in EU law. In such situations, it would be necessary to resort to the provisions of international public law (so-called fall-back). In contrast, arguments in favor of the independence of the EU legal order are analyzed and emphasized. Without denying the fact that the EU legal order evolved from international public law, that it represented a nasciturus within it, that it was based on an international treaty, and that the EU itself represents an international organization, we must also accept the facts pertaining to its decades-long evolutionary development and a constantly increasing degree of autonomy from general international public law, which has been confirmed and supported by case law and attitudes from the legal doctrine. In addition, the specific way of filling legal gaps with solutions from EU law itself, rather than by applying the logic of the fall-back system, speaks in favor of the autonomy of the EU legal order. All of this points to the exceptional and unique nature of the EU legal order, and its comprehensive framework. Therefore, even if there were arguments in favor of imperfection and incompleteness of the EU legal order, its dynamic development leads us to the conclusion that nowadays it is at such a developmental and qualitative stage that it should be recognized as a self-contained legal regime.

Research background: Sustainable development of the modern world represents an opportunity to preserve economic growth and technological progress, as well as social development, without limiting the possibilities of this development for past generations. The directions of this development are included in the 17 goals and 169 tasks of the 2030 Agenda for Sustainable Development. The achievement of these goals and the implementation of the adopted tasks is a huge challenge for individual countries and regions. This also applies to the European Union (EU), where economic development is closely linked to environmental protection and social inclusion. Of key importance in this context is Objective 9 of Agenda 2030, and thus its level of implementation in the EU-27 countries is the aim of the research presented in this paper. Purpose of the article: The research involved assessing the level of EU countries in terms of building stable infrastructure, promoting sustainable industrialization and fostering innovation, i.e., the main areas of Goal 9 of Agenda 2030. Methods: The assessment was based on the EU?27 countries' sustainable development index (SDG9) determined with the use of 14 indicators characterizing these areas between 2015?2020. The basis of the developed methodology was a multi criteria decision making approach (MCDM methods). TOPSIS, WASPAS and EDAS methods were used to determine the sustainability index, and the Entropy, CRITIC and standard deviation (SD) methods were used to determine weights for the adopted indicators. In addition, the use of the Spearman's and Kendall's Tau non-parametric tests enabled the analysis of the relationship between the SDG9 index and the basic economic, environmental and energy parameters, as well as the digitalization of the countries under study. Findings & value added: The results show that the EU?27 countries vary widely in terms of implementing Sustainable Development Goal 9 of Agenda 2030 over the analyzed period. Now, the most advanced in this respect are Denmark, Germany, Luxembourg, the Netherlands, Finland, and Sweden. By contrast, substantial problems are found in Bulgaria, Greece, Portugal, and Lithuania. The results also provide an opportunity to trace changes in the value of the designated index in individual countries, and in groups of countries of the "old" and "new" EU. These results significantly enrich the knowledge of the effectiveness of implementing Goal 9 of Agenda 2030 in the EU?27 countries and the relationship between the development of individual countries and sustainable development economy. These findings can also be used to create new EU?27 strategies for sustainable and solidarity-based development of the whole EU. In addition, the results can be helpful to decision-makers as they highlight important indicators related to innovation, industrialization and infrastructure that should be considered when formulating a country's sustainable development strategy. The added value of the study is the research procedure presented, which can be used in analyses on the study of various issues related to sustainable development for other groups of regions.

پارادایم حاکم بر حقوق بین الملل توسعه در بستر شرایط تاریخی و اقتصادی دهه 1960 عمدتا مبتنی بر توسعه اقتصادی بود. اما به تدریج در پرتو تلاشهای بین المللی و صدور گزارش برونتلند مفهومی تحت عنوان توسعه پایدار در گستره حقوق بین الملل مطرح شد. مفهومی که در پرتو اجتناب از ملاحظه صرف توسعه اقتصادی در فرایندهای توسعه و از طریق تعامل میان سه بعد توسعه اقتصادی، اجتماعی و زیست محیطی، حقوق بین الملل توسعه را به سمت حقوق بین الملل توسعه پایدار رهنمون ساخته است. با وجود پیشرفتهای حاصله در خصوص ادبیات توسعه پایدار در حقوق بین الملل، از یک سو به دلیل اینکه مفاد این مفهوم عمدتا در حقوق قوام نیافته مطرح بوده و عملا بنا به اذعان اسناد مهم در این زمینه مبنی بر اولویت توسعه اقتصادی بر توسعه زیست محیطی و اجتماعی سیاستهای توسعه پایدار با شکست مواجه شده است، خلاء قابل توجهی در رویکرد نظری و عملی به توسعه پایدار در حقوق بین الملل توسعه وجود داشته و حقوق بین الملل توسعه پایدار حقوق آرمان تلقی می شود تا حقوق واقعی.

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INTRODUCTION. The international legal content of the concept of sustainable development, so common in international treaties and sometimes expressed in different terms, undoubtedly requires modern clarification, as well as its place in the system of international law. Firstly, it is interesting to answer the question of how ideas of sustainable development have resulted in their crystallization as a concept of international law. Secondly, using treaty sources of the international law of the sea, where this notion is particularly common, it is meaningful to identify the intentions of States parties to such treaties to consider sustainable development clauses as legal obligations. Thirdly, it is important to determine whether these clauses now constitute a principle of the international law of the sea or whether they retain the status of separate treaty obligations that are not interrelated. MATERIALS AND METHODS. The article is based on the analysis primarily of the norms of the international law of the sea, in which the term «sustainable development» is applied, with reference to the scientific and legal literature and judicial decisions relevant to the topic. The research involves methods of legal construction, legal modeling, analysis and synthesis, systematic, struc­tural-functional, formal-logical, formal-legal, histori­cal and chronological methods. RESEARCH RESULTS. The analysis of international treaties and other international legal instruments applicable to the issue has shown that the long-standing ideas of «sustainable development» are now normatively well-established; that the provisions of international treaties on sustainable development have already developed as an inter-branch (cross-cutting) principle of international law at the intersection, primarily, of the international law of the sea and international environmental law; that States undertake in practice explicit obligations and exercise relevant rights in the framework of upholding this cross-cutting principle. The authors’ vision of the content of this principle is offered and its various manifestations in the international law of the sea are shown. DISCUSSION AND CONCLUSIONS. The study critically evaluates the prevailing view in the Western international legal literature that the idea of sustainable development was suggested by the 1987 Report «Our Common Future» (the Brundtland Report). It has been shown that the idea predates this report, and that the initial mechanisms for sustainable development had already been reflected in existing interna­tional treaties by 1987. The suggestion is made that the international legal concept of sustainable development has several cumulative components that together define its content. Among these there are elements that are part of this concept primarily because they are means of achieving sustainable development goals, having a much narrower scope if interpreted in isolation. The international legal principle of sustainable development seeks to resolve the tensions primarily between the States’ right to development and their duty to protect the environment, serving as a nexus that ensures that neither the one nor the other is neglected. Its social dimension is undoubtedly significant, although it has been interpreted very differently in the interna­tional legal literature. In the context of contemporary international law, it is expedient to assert an inter-branch (cross-cutting) nature of the sustainable development principle: its legal content extends beyond the scope of specific branches of international law, including international law of the sea, international environmental and economic law. However, most international treaties of a universal and especially regional character that contain some form of sustainable development clauses currently refer to sources of the international law of the sea, which may certainly change in the future.

Gender equality has been recognised as a right and as ‘essential to achieve peaceful societies, with full human potential and sustainable development’ (UN). Yet, girls and women around the globe continue to suffer from discrimination and inequality with regard to education, health and related services, economic structure, participation and access to resources, public life and decision-making. States and other global actors’ foreign policy- and treaty-making can have implications for gender equality. This chapter maps the current law and policy landscape that frames external action of the European Union (EU) with respect to the promotion of gender equality in the world. Moreover, the chapter provides an overview on EU tools that have been employed to implement the EU’s commitment to gender equality in its external action, using examples to illustrate current practice and trends. The chapter demonstrates that the EU institutions have increasingly included gender equality related aspects in the EU’s development, trade and foreign policy measures. The chapter highlights that it is appropriate for the EU to thereby not merely impose the EU’s own standards and procedures on non-EU states but to endorse and promote instead international law and procedures to improve gender equality. The Lisbon Treaty has affected the scope of EU external competence by including gender equality objectives in external action. As a consequence, the need to accommodate gender equality objectives and considerations in any of the EU’s external activities finds a basis in the EU’s constitutional legal order and could fall increasingly within the remit of the European Court of Justice. The chapter claims that integrating gender equality in the EU’s external action framework has increased the EU’s own accountability for external action, in that the EU’s internal standards for the protection of rights and the promotion of gender equality have become a benchmark for EU action affecting gender equality within the EU and in non-EU countries.

This chapter analyzes the consistency of unilateral environmental trade restrictions with customary international law regarding the jurisdictional competence of states, international environmental law and World Trade Organization (WTO) law. Against the backdrop of this analysis, it considers to what extent WTO law permits the use of unilateral trade measures to address international environmental problems. The chapter determines the jurisdictional nexus that is required to justify unilateral measures under Article XX. It also considers other conditions that should be met for such measures to pass the tests in Article XX. This analysis leads to the conclusion that unilateral environmental trade measures can be justified under Article XX in a manner that is consistent with the jurisdictional competence of states and international environmental law. The chapter reviews the evolution of Article XX interpretations with respect to this issue in the context of key principles of general international law and international environmental law.Keywords: Article XX; international environmental law; unilateral trade measures; World Trade Organization (WTO)

This thesis investigates how the natural environment is conceptualised in international law. Environmental campaigners typically place great faith in the discipline’s ability to restrain the onset of growing ‘global’ problems: such as species extinctions, clearing of forests, pollution, and climate change. Law has traditionally been a key domain for efforts to regulate, and curb, these problems. While a vast body of existing literature assesses the effectiveness and adequacy of these initiatives, this dissertation takes a different approach. It explores particular visions of the natural environment that inform such initiatives. I will proceed from the premise that international law, rather than merely reflecting the natural environment, shapes how we perceive it. With this in mind, I will investigate a selection of stories that international law tells about the natural environment, and consider the different, competing stories it deprivileges. The key question is: what role has international law played in making certain ways of thinking about nature come to seem normal or intuitive, and how does this affect efforts to curb environmental harms? Adopting historical and philosophical approaches informed by critical approaches to law, I will show how dominant manifestations of nature are articulated—and sustained—with regard to ideas of mastery and resources, national economies and conservation, the (human) environment, sustainable development, the green economy, and natural capital. I will use insights from radical ecological and postcolonial theory to highlight the ramifications of such conceptualisations. My discussion will focus on a series of key episodes in the history of international environmental law, as well as on the work of prominent scholars and institutions in the field of international environmental law. I will argue that international law is constrained in its efforts to deal with environmental problems insofar as the discipline is itself complicit in the use, abuse, and subjugation of environments. Furthermore, I will contend that the idea of the environment is continually reconstructed and repositioned, in ways that sustain a certain relationship, or form of global ordering. As we shall observe, debates in international fora over the scope and meaning of the environment fostered anxieties about the degree to which it was being adequately protected. Yet, I will suggest, these were neutralised—or co-opted—in ways that reinforced dominant logics. Put simply, international law and institutions have sustained a narrow understanding—or framing—of the environment. Ultimately, it has confined the outcomes of environmental policies to a set of largely predetermined outcomes. This undermines international law’s contingency and potential dynamism. Added to this, is the implication that such framings are designed to preserve the power and privilege of a small minority of the world’s peoples.

This chapter reviews the salient features of international law relating to sustainable development. This is done through an evaluation of the basic constituent elements of sustainable development – the economic, social and environmental dimensions encapsulated by international economic law, international human rights law and international environmental law. International environmental law in its current manifestations evolved predominantly over the last three decades. The chapter examines whether international human rights law can be an instrument in promoting and protecting basic human rights and freedoms in the context of the investment activities of transnational corporations (TNCs). Sustainable development embraces economic development, environmental protection and human rights. The law and policy relating to sustainable development at the international level deals predominantly with the environmental aspect – less with human rights, and still less with the development dimension, and this is reflected at the regional and domestic levels.Keywords: environmental protection; international economic law; international environmental law; international human rights law; international law; sustainable development; transnational corporations (TNCs)

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