Inspiration for Integration: Interpreting International Trade and Investment Accords for Sustainable Development

• Author: Marie-Claire Cordonier Segger
• Position: Senior Director, Centre for International Sustainable Development Law
• Pages: 159-215

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(2017) 3(1) CJCCL

Inspiration for Integration:

Interpreting International Trade

and Investment Accords for

Sustainable Development

Marie-Claire Cordonier Segger*

is article considers whether States have obligations, in international law, to proactively

integrate environmental and social considerations into economic decision-making for

sustainable development. In an era of international cooperation shaped inter-actionally

by several decades of global debate, culminating in the adoption of universal Sustainable

Development Goals (SDGs) at the United Nations, the article considers opportunities

to support sustainable development through the interpretation and implementation of

international economic treaty law and practice. In particular, the article comparatively

discusses a new generation of trade and investment treaties that explicitly mention sustainable

development as part of the object and purpose, examining approaches which can dene and

characterise the Parties’ commitments. e article briey oers considerations for a regulator,

arbitrator or jurist seeking to interpret, in accordance with the Vienna Convention on the

Law of Treaties1 (“VCLT”), a diverse range of environmental and social development

provisions that are increasingly being integrated into international economic agreements.

* Professor Marie-Claire Cordonier Segger, DPhil (Oxon), MEM (Yale), LLB

& BCL (McGill) is Senior Director, Centre for International Sustainable

Development Law (CISDL); Full Professor of Law, Faculty of Environment,

University of Waterloo; Lauterpacht Centre for International Law (LCIL)

and Centre for Environment, Energy and Natural Resource Governance

(C-EENRG) Fellow, University of Cambridge; Executive Secretary, Climate

Law and Governance Initiative (CLGI); Rapporteur, International Law

Association Committee on Sustainable Resources Management, and author/

editor of 21 books and 140 papers on law and sustainable development.

(mccs2@cam.ac.uk). anks are due especially to Dr Alexandra Harrington,

Dr Markus Gehring, Prof Andrew Newcombe, and Dr Sebastien Jodoin for

their assistance and insights, and to Prof Stephen Toope for his inspiration on

inter-actional theories of legitimacy in international law.

1. 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

[VC LT ].

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Cordonier Segger, Inspiration for Integration: Sustainable Development

I. P  “S L” R  A S 

E C  E T

II. I L R  C  A E

 S I  T  I A

A. Sustainable Development as an Interstitial Norm

B. Integration as an International Customary Norm of Relevance to

Trade and Sustainable Development

III. I T  I A  L  

I P

A. Addressing Sustainable Development Tensions in Trade and

Investment Agreements through Integration

B. Interpreting Sustainable Development Provisions in Economic

Accords

IV. C

We assume a collective responsibility to advance and strengthen the

interdependent and mutually reinforcing pillars of sustainable development -

economic development, social development and environmental protection - at

the local, national, regional and global levels.2

When States commit to promote sustainable development in a

trade or investment treaty, or agree to conduct their economic

relations in accordance with a principle of sustainable development, the

implications of this commitment are not obvious in international law or

policy.

In recent decades, there has been extensive international treaty-making

on the protection of the environment. Many multilateral environmental

accords (“MEAs”) contain provisions to secure sustainable development

2. Johannesburg Declaration on Sustainable Development, UNWSSD (4

September 2002) UN Doc A/CONF.199/20 1 at para 5 [Johannesburg

Declaration].

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in dierent ways, across diverse elds.3 Parallel to these MEAs,

international economic treaties are being negotiated and adopted. While

it is less documented, a growing number of these accords also address

sustainable development, including in the World Trade Organisation4

(“WTO”) and an increasing range of Regional Trade Agreements5. As

the WTO Appellate Body noted in the 1998 US-Shrimp Dispute:6

[t]he preamble of the WTOAgreement — which informs not only the GATT

1994, but also the other covered agreements — explicitly acknowledges “the

objective of sustainable development”.7

e WTO also recognised in the corresponding footnote that “[t]his

concept has been generally accepted as integrating economic and social

3. Alexandre Kiss & Dinah Shelton, International Environmental Law

(Leiden, e Netherlands: Koninklijke Brill NV, 2004); Patricia Birnie,

Alan Boyle & Catherine Redgwell, International Law & the Environment

(Oxford: Oxford University Press, 2009) at 106-14; Philippe Sands,

Principles of International Environmental Law (Cambridge: Cambridge

University Press, 2003) at 252-66 [Sands, Principles of International

Environmental Law]; Sumudu A Atapattu, Emerging Principles of

International Environmental Law (Ardsley, NY: Transnational Publishers,

2006) at 140-45; David Hunter, James Salzman & Durwood Zaelke,

International Environmental Law and Policy (New York: Foundation Press,

2002) at 19, 923.

4. Gary P Sampson, e WTO and Sustainable Development (Tokyo: United

Nations University Press, 2005); Markus W Gehring & Marie-Claire

Cordonier Segger, eds, Sustainable Development in World Trade Law

(e Hague: Kluwer Law International, 2005) at 129-52; Agreement

Establishing the World Trade Organization, 15 April 1994 1867, UNTS

154 (entered into force 1 January 15) [WTO Agreement].

5. Marie-Claire Cordonier Segger, “Sustainable Development in Regional

Trade Agreements” in Lorand Bartels & Federico Ortino, eds, Regional

Trade Agreements and the WTO Legal System (Oxford: Oxford University

Press 2006) at 313-40.

6. WTO, United States: Import Prohibition of Certain Shrimp and Shrimp

Products — Report of the Panel, WTO Doc WT/DS58/R (1998); WTO,

United States: Import Prohibition of Certain Shrimp and Shrimp Products —

Report of the Appellate Body, WTO Doc WT/DS58/AB/R (1998) [Shrimp

Products, Appellate Body]; collectively [US-Shrimp].

7. Shrimp Products, Appellate Body ibid at n 107.