Levy on Carbon Majors to pay for Loss and Damage

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 27/03/2015

Does the mandate of other international fora, in particular the WTO, limit the competence of the UNFCCC to review and possibly decide on measures for the introducing of a global levy on carbon majors to pay for loss and damage from climate change? If so, to what extent?

Advice:

1. Introduction

 The UNFCCC and the WTO (along with other environmental treaties and trade agreements) are part of international law as a legal system.[1] As such, they are subsystems that remain a part of the international legal system as a whole through the principle of mutual supportiveness, which provides the dynamic and rationale to the interface between the UNFCCC and the WTO.[2] This interface is unavoidable due to the intrinsic relationship between trade and the environment given the transversal aspect of many sectors making them a meeting point for both trade and environmental issues.[3] This legal advice will deal with the possibility of the UNFCCC to decide on a global levy on carbon majors in light of the mandate of other international fora, particularly the WTO. The aim will be to demonstrate that the competence of the UNFCCC and the competence of the WTO are not mutually exclusive because these regimes reinforce each other in a mutually supportive manner. The WTO’s mandate does not limit the competence of the UNFCCC but rather reinforces it. Secondly, the legal advice will look at the identical conditions set out in the UNFCCC and the WTO for the adoption of trade measures to combat climate change, including a global levy on carbon majors. The aim of that section will be to demonstrate that a global levy introduced by the UNFCCC would satisfy those mutually supportive conditions. Lastly, the advice will briefly highlight the potential impact of other fora, investment arbitration, and demonstrate that no other international fora limits the competence of the UNFCCC to review and decide on a global levy on carbon majors.

2. The Competence of the UNFCCC and the WTO are not Mutually Exclusive

 The WTO provides policy space to accommodate the use of trade measures to protect the environment under certain conditions, and the UNFCCC in turn provides that these same conditions must be met when adopting such measures to address climate change.[4] These conditions are that such trade measures to combat climate do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.[5] As such, the WTO does not limit the competence of the UNFCCC and it is clear that these regimes are not mutually exclusive. Nonetheless, it is important to understand and clarify the relationship between the UNFCCC and the WTO. The principle of mutual supportiveness and the express inclusion of the WTO conditions referred to above in the text of the UNFCCC requires a consideration of these WTO conditions when discussing a carbon levy in the auspices of the UNFCCC.

  •  The competence of the UNFCCC

 The UNFCCC has a rather wide competence to address climate change and its adverse effects considering the inherent global nature of climate change and the corresponding need for wide cooperation.[6] Although its “speciality” is primarily climate change, this specialization spans across many subsectors and regimes given the role of human activities (particularly commercial activities) in climate change, and the fundamentally global nature of climate change itself. The listed objectives of the UNFCCC to stabilize greenhouse gas concentration at a level to allow ecosystems to naturally adapt, to ensure that food production is not threatened and to enable sustainable development demonstrate the breadth of this competence.[7]

 The possibility for the UNFCCC to deal with trade measures is recognized in Article 3.5 which reads as follows: “Measures taken to combat climate change, including unilateral ones, should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade.”[8] The text of the Convention itself therefore foresees multilateral trade measures to address climate change, and reinforces the conditions of the WTO through their express inclusion in Article 3.5. The UNFCCC therefore clearly has the competence to review and decide on measures for the introduction of a global levy on carbon majors, which is not limited by the mandate of the WTO.

  •  The competence of the WTO

 The WTO has competence in the area of international trade more generally, and it is primarily “directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international trade relations.”[9] A global levy on carbon majors triggers the competence of the WTO because of the competence in trade tariffs and potential barriers to trade, which a global levy on carbon majors could potentially be. This overlap, however, does not limit or prevent the UNFCCC from taking action in this regard because of the express recognition of the UNFCCC’s competence in Article 3.5 of the UNFCCC and inclusion of the WTO conditions therein. A global levy on carbon majors is a natural and necessary response to climate change and is supported by one of the purported aims of the WTO of “allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.”[10]

 This is evidence of the mutual support between the WTO and the UNFCCC: the WTO expressly recognizes the need and right to protect the environment (address and mitigate climate change) in international trade relations. The Appellate Body of the WTO has interpreted this as an autonomous right of WTO Members to adopt trade policies and measures to protect the environment, so long as certain conditions are met.[11] The necessary conditions are that “such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.”[12] This is the same language as the implied right in Article 3.5 of the UNFCCC, further solidifying the mutual support and reinforcement between the two regimes.

 These two regimes are therefore not mutually exclusive but are mutually reinforcing through the pursuit of the same objectives (sustainable development) and inclusion of the same conditions for the adoption of trade measure to combat climate change. The two regimes do not exist in isolation but are two parts of a whole (the international legal system). The UNFCCC has the implied right to adopt trade measure to address climate change so long as certain conditions are met, and the WTO grants the right to adopt trade measures to address climate change so long as those same conditions are met. The two regimes thus reinforce and support each other.

 The WTO Doha Ministerial Declaration, 2001 states that “With a view to enhancing the mutual supportiveness of trade and environment, we agree to negotiations […] on […] the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements.”[13] The objective of this paragraph is to “ensure coherence by fostering a positive synergy between the trade and environmental regimes” and ensure “harmonious coexistence” between the two.[14] The WTO Hong Kong Ministerial Declaration, 2005 reaffirmed the mandate “aimed at enhancing the mutual supportiveness of trade and environment […]”[15]. Although there is not yet an outcome of these negotiations, these declarations confirm the mutual support between the WTO and the UNFCCC and the conclusion that the competence of the WTO does not limit the competence of the UNFCCC regarding a carbon levy.

  •  The need to include the principle of mutual supportiveness in a future climate deal

 The concept of mutual supportiveness responds to “the need and concern for strengthening coherence, balance and interaction between trade and environment.”[16] In this regard, mutual supportiveness means that while focusing on their own competences and activities, the UNFCCC and the WTO should be “mutually reinforcing” since they are both seeking to achieve sustainable development.[17] Although the WTO and the UNFCCC have mutually reinforcing provisions as described above, the mutual support can nonetheless be expressly developed further. Several other multilateral environmental agreements further entrench the principle of mutual supportiveness through its express inclusion in the text of the agreement. Any new agreement within the auspices of the UNFCCC may consider including such an express provision to further entrench the principle in this context. If such a provision already existed, there would be no need for the existing legal query since that provision itself would clarify that the WTO’s competence would not limit the UNFCCC but would be mutually supportive and reinforcing.

 The principle of mutual supportiveness is formulated in various ways in multilateral environmental agreements, but all of the express formulations acknowledge that environmental treaties and other international agreements pursue the same objective: the promotion of sustainable development.[18] All instruments also emphasise the absence of a hierarchy between environmental treaties and other international agreements.[19] An inclusion of similar formulations within the auspices of the UNFCCC would make clear that the WTO cannot limit the competence of the UNFCCC, nor can the UNFCCC limit the competence of the WTO. Examples of mutual supportiveness provisions in other multilateral environmental agreements are attached hereto as Annex 1.

3. The UNFCCC/WTO Conditions Under Which Trade Measures to Combat Climate Change May Be Adopted

A consideration of the compatibility of a levy on carbon majors with WTO law requires a two-step analysis.[20] The second step of this analysis concerns the same conditions as those discussed above in Article 3.5 of the UNFCCC. Under WTO law, however, the policy objective pursued by the law or measure (i.e. conservation of fossil fuels, protection of the environment and adaptation to climate change, such as the proposed levy on carbon majors) must first fall within one of the express policy objectives provided for in Article XX of the GATT.[21] The first step of the analysis is therefore whether the law or measure (like a potential law implementing the carbon levy) falls within the scope of the objectives listed in the sub-paragraphs of Article XX.[22] These policy objectives include the protection of human, animal or plant life/health and the conservation of exhaustible natural resources.[23] It will be demonstrated that the objectives pursued by the levy on carbon majors falls within the scope of the application of Article XX, and therefore satisfies the first step of the analysis.

The proposed levy on carbon major potentially falls within the scope of two sub-paragraphs of Article XX of the GATT: (b) and (g). The levy would be within the application of Article XX(b) if the policy objective pursued by it is the protection of the life or health of humans, animals or plants; and it is necessary to fulfil that policy objective.[24] In general, the Appellate Body has shown significant deference in accepting that the policy objective of the measure was to protect human, plant and animal life and health.[25] Measures relating to reduction in air pollution and to reduce risks arising from the accumulation of waste tyres have been accepted to pursue this policy objective,[26] so it may be presumed that a levy on carbon majors to pay for loss and damage from climate change would also be accepted to pursue this objective. However, the measure (in this case the levy) must also be necessary to fulfil that policy objective in order to satisfy this first step of the analysis under WTO law.

The Appellate Body of the WTO has given significant guidance as to the interpretation of the “necessary” requirement. It has noted that determining whether a measure is necessary to pursue the policy objective requires a weighing and balancing of the following relevant factors: the importance of the interests/values at stake, the extent of the contribution to the achievement of the measures’ objective, and its trade restrictiveness.[27] It has emphasised that this weighing and balancing exercise is a “holistic operation that involves putting all the variables of the equation together and evaluating them in relation to each other after having examined them individually, in order to reach an overall judgement.”[28] The Appellate Body has observed that “few interests are more ‘vital’ and ‘important’ than protecting human beings from health risks, and that protecting the environment is no less important.”[29] It has therefore recognized that measures to protect the environment, such as the proposed carbon levy, are vital interests, tipping the scale of the weighing and balancing analysis in favour of the proposed levy satisfying the requirement of being “necessary.”

The Appellate Body has further observed that the contribution of the measure to the objective does not have to be immediately observable in order to be “necessary” and fall within the scope of Article XX (b) of the GATT. It has observed that:

“We recognize that certain complex public health or environmental problems may be tackled only with a comprehensive policy comprising a multiplicity of interacting measures. In the short-term, it may prove difficult to isolate the contribution to public health or environmental objectives of one specific measure from those attributable to the other measures that are part of the same comprehensive policy. Moreover, the results obtained from certain actions—for instance, measures adopted in order to attenuate global warming and climate change, […] may manifest themselves only after a certain period of time—can only be evaluated with the benefit of time. […] Thus, a panel might conclude that an import ban is necessary on the basis of a demonstration that the import ban at issue is apt to produce a material contribution to the achievement of its objective. This demonstration could consist of quantitative projections in the future, or qualitative reasoning based on a set of hypotheses that are tested and supported by sufficient evidence.”[30]

The Appellate Body has thus confirmed that measures adopted to attenuate global warming and climate change may be within the scope of Article XX(b) of the GATT and recognized the specific temporal limitations on evaluating the contribution of climate change measures. Nonetheless, these measures may be “necessary” and therefore satisfy the first step of the analysis under WTO law if they are apt to produce a material contribution to their objective. In this instance, given the arguments laid out for the levy in the report of the Climate Justice Programme, the proposed levy would clearly be apt to produce a material contribution to the objective of the protection of human, plant and animal life and health as it would provide the funding for the International Mechanism for Loss and Damage to support the poorest and most vulnerable communities suffering the worst impact of climate change.[31] The proposed levy on carbon majors would therefore fall within the scope of Article XX(b) of the GATT and therefore satisfy the first step of the required analysis under WTO law.

However, before considering and applying the second step of the analysis, it should be noted that the proposed levy would also fall within the scope of Article XX(g) on the conservation of natural resources as it concerns a levy on fossil fuel producers and therefore contributes to the conservation of fossil fuels. In order to fall within the scope of Article XX(g) a law or measure must “relate to” the conservation of exhaustible natural resources and be made effective in conjunction with restrictions on domestic production or consumption.[32] A measure does not have to be “necessary” to fall within the scope of Article XX(g), but must “relate to” the conservation of exhaustible natural resources. The Appellate Body has interpreted this as a determination of whether the “means are, in principle, reasonably related to the ends.”[33] Article XX(g) therefore requires a “close and real” relationship between the measure and the policy objective pursued.[34] Given that a levy on fossil fuel producers is an incentive to lower the use of fossil fuels, there is a close and real relationship between the proposed levy (the measure) and the objective pursued (conservation of fossil fuels). The last criteria, that the measure is made effective in conjunction with domestic restrictions, is a requirement of even-handedness: a recognition that if a resource is worth conserving, it should be conserved at the domestic level too.[35] The proposed levy reviewed by the UNFCCC would satisfy this condition, as it is truly multilateral and therefore even-handed in nature. The proposed levy would therefore satisfy the first step of the analysis under WTO law by falling within the application of both Article XX(b) and Article XX(g) of the GATT.

Even though the proposed levy falls within the application of the general exceptions in Article XX, WTO rules provide that such measures may only be taken if certain conditions are met: those contained in the chapeau of Article XX that are also contained in Article 3.5 of the UNFCCC. The Appellate Body of the WTO has interpreted the conditions, “arbitrary and unjustifiable discrimination” and “disguised restriction on international trade” on numerous occasions[36] noting that they are an expression of the principle of good faith to prevent an abuse of rights.[37] Thus, the conditions are concerned with whether the application of the climate change measure or environmental policy constitutes an abuse or misuse of the right to protect the environment.[38]

The Appellate Body has emphasised that in order to meet these conditions, there must be serious good faith efforts to negotiate a multilateral solution before resorting to unilateral measures.[39] Measures and policies like the potential global levy on carbon majors by the UNFCCC seem to avoid this risk given the multilateral nature of the UNFCCC and its clear objectives addressing and combating climate change. The proposed levy is genuinely multilateral and not unilateral in nature and therefore would seem to satisfy these conditions on their face. However, when State Parties of the UNFCCC implement the levy at the national level, there is a risk that such discrimination or disguised restriction could come about to protect domestic industries or offset higher burdens to domestic producers. In other words, the UNFCCC should be aware that the application of the levy at the national levy could be done in a manner as to constitute arbitrary or unjustifiable discrimination or a disguised restriction on international trade.

The UNFCCC should therefore be aware that in such a case, that national law implementing the carbon levy may be challenged at the WTO and the implementation of the obligations under the UNFCCC (the levy) may be called into question in that process. It should be noted, however, that in such a case, the same conditions above would be examined, as would be the case if the law could be challenged under the UNFCCC since Article 3.5 of the UNFCCC incorporates the same conditions as the WTO. The competence of the WTO and the imposed conditions on the right to adopt trade measure to protect the environment therefore does not limit the competence of the UNFCCC to decide upon a global levy on carbon majors. Such a levy would satisfy the conditions of the WTO above and of Article 3.5 of the UNFCCC.

4. Other Fora: Investment Arbitration

Another international forum that may deal with the introduction of a global levy on carbon majors by the UNFCCC could be international investment arbitration. Most international investment agreements, particularly Bilateral Investment Treaties (BITs) grant private investors the right to initiate arbitration against the host state in the event of a dispute. This process is known as international investment arbitration. A significant number of the “carbon majors” mentioned in the report of the Climate Justice Programme are investor owned entities.[40] Although the global levy would be decided on by the UNFCCC, it would be implemented by states through their domestic law. These investors may challenge the host state law implementing the levy in investment arbitration through the operation of any international investment agreement in force.

This challenge would not be directly to the UNFCCC and would not limit the competence of the UNFCCC in any capacity in this regard. However, an investment arbitration tribunal may consider the levy indirectly through the examination of the host state action implementing the levy, and it may require the host state to compensate the investor if the tribunal determines that the investor’s rights have been breached. This would depend greatly on the facts and circumstances in each case but is highly unlikely given the multilateral basis for the imposition of the levy in national law.

This is why some voices are promoting the principle of mutual supportiveness in the field of investment protection.[41] For example, the 2005 IISD Model International Agreement on Investment for Sustainable Development provides that “the Parties agree that the provisions of other international trade agreements to which they are a Party are consistent with the provisions of this Agreement. The Parties shall seek to interpret such agreements in a mutually supportive manner”.[42] Nonetheless, given the multilateral nature of the UNFCCC and the global impact of climate change, it may be presumed that any arbitral tribunal would recognize the obligation of the host state with regards to the levy and any breach of the investment treaty may be thus justified.

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ANNEX: Examples of Mutual Supportiveness Clauses in Other Multilateral Environmental Agreements and Conclusive Remarks

  1.  The Preamble to the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1998, states:

“Recognizing that trade and environmental policies should be mutually supportive with a view to achieving sustainable development,

Emphasizing that nothing in this Convention shall be interpreted as implying in any way a change in the rights and obligations of a Party under any existing international agreement applying to chemicals in international trade or to environment protection,

Understanding that the above recital is not intended to create a hierarchy between this Convention and other international agreements….”

  1. The Preamble to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2000, reads as follows:

“Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development,

Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements,

Understanding that the above recital is not intended to subordinate this Protocol to other international agreements ….”

  1. The Preamble to the Stockholm Convention on Persistent Organic Pollutants (POPs), 2001, states:

“Recognizing that this Convention and other international agreements in the field of trade and the environment are mutually supportive…”.

  1. The Preamble to the International Treaty on Plant Genetic Resources for Food and Agriculture, 2001, reads as follows:

“Recognizing that this Treaty and other international agreements relevant to this Treaty should be mutually supportive with a view to sustainable agriculture and food security;

Affirming that nothing in this Treaty shall be interpreted as implying in any way a change in the rights and obligations of the Contracting Parties under other international agreements;

Understanding that the above recital is not intended to create a hierarchy between this Treaty and other international agreements;

Aware that questions regarding the management of plant genetic resources for food and agriculture are at the meeting point between agriculture, the environment and commerce, and convinced that there should be synergy among these sectors ….”

  1. The Preamble to the Minamata Convention on Mercury, 2013 states:

“Recognizing that this Convention and other international agreements in the field of the environment and trade are mutually supportive,”

  1. It is also noteworthy that the principle of mutual supportiveness has been expressly implemented in other areas. The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions contains another express formulation of mutual supportiveness. That instrument achieved a further step forward by including mutual supportiveness in the operative part of a treaty, for the first time, i.e. among the core obligations and not just in a preamble as in the other cases above.  Article 20 reads indeed as follows:

 “Article 20–Relationship to other treaties: mutual supportiveness, complementarity and non-subordination

  1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, …

(a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties (emphasis added); and

(b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention.

  1. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.”
  1. The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (ABS Protocol) by the Tenth Conference of the Parties to the Convention on Biological Diversity (CBD COP 10) is another relevant example. This protocol shows a new pioneering approach for the incorporation of mutual supportiveness in international instruments. It embodies the principle of mutual supportiveness both in its preamble and in its operative part. The preamble to the ABS Protocol states:

“Recognizing that international instruments related to access and benefit-sharing should be mutually supportive with a view to achieving the objectives of the Convention….”

And Article 4, para. 3 of the ABS Protocol provides:

“This Protocol shall be implemented in a mutually supportive manner with other international instruments relevant to this Protocol. Due regard should be paid to useful and relevant ongoing work or practices under such international instruments and relevant international organizations, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol.”

  1. The second sentence in Article 4, para. 3 of the ABS Protocol, that “due regard should be paid to useful and relevant ongoing work or practices under such international instruments and relevant international organizations, provided that they are supportive of and do not run counter to the objectives of the Convention and this Protocol” (emphasis added), highlights the emergence of a new dimension. Traditional formulations of mutual supportiveness have often been limited to a reminder that there is no subordination of the environment regime vis-à-vis the trade regime. The ABS Protocol goes further. It requires the trade and other international legal regimes to actively promote the objectives of the ABS Protocol in a mutually supportive manner if they want the parties to the ABS Protocol to be supportive of their objectives.
  2. An inclusion of a formulation like those reproduced above within the auspices of the UNFCCC would further entrench the mutual supportiveness between the UNFCCC and the WTO and would clarify that neither has the competence to limit the other. In any case, the absence of such a provision does not imply the lack of mutual supportiveness in this area, it just means that it is not as clearly provided for.

 ________________________

 

 [1] See Boisson de Chazournes, L. & Mbengue, M. M., (2011), “A ‘Footnote as a Principle’. Mutual Supportiveness in an Era of Fragmentation”, in Gestermeyer, Holger P. et al. (eds.) Coexistence, Cooperation and Solidarity – Liber Amicorum Rudiger Wolfrum, pp. 1615-1638.

[2] Ibid at 1626.

[3] Ibid at 1631.

[4] See Article 3.5 of the United Nations Framework Convention on Climate Change, and Article 2.3 of the Kyoto Protocol. The conditions under which WTO Members have the policy space to address climate change are dealt with most substantively in Article XX of the GATT and will be addressed below.

[5] See ibid

[6] See the preamble of the UNFCCC, as well as Articles 2 and 3 for examples.

[7] Article 2 of the UNFCCC.

[8] Article 3.5 of the UNFCCC. This is a virtually identical formulation as contained in Article XX of the GATT, which places the condition upon the right of WTO Members to take trade measures to protect the environment.

[9] Preamble of the Agreement Establishing the World Trade Organization.

[10] Ibid.

[11] WTO Appellate Body Report, United States — Standards for Reformulated and Conventional Gasoline (DS 2), 29 April 1996 pp. 29-30.

[12] Chapeau of Article XX, the General Exceptions of the GATT 1994.

[13] Para. 31, available at http://www.wto.org/english/thewto_e/minist_e/min01_e/ mindecl_e.doc (emphasis added).

[14] ‘Trade and Climate Change: A report by the United Nations Environment Programme and the World Trade Organization,’ (2009), World Trade Organization, pg. 82-83.

[15] Paras. 30 and 31, the Hong Kong Ministerial Declaration, 18 December 2005, is available at http://www.wto.org/english/thewto_e/minist_e/min05_e/final_text_e. htm.

[16] Ibid at 5.

[17] Ibid at 9. Mutual supportiveness as a concept focuses on the objectives pursued by the different treaty regimes rather than on the substantive rights and obligations, see ibid.

[18] See ibid at 15.

[19] Ibid.

[20] See WTO Appellate Body Report, United States- Standards for Reformulated and Conventional Gasoline, (DS 2), 29 April 1996, para. 139 and Van den Bossche, P., & Zdouc, W., (2013), The Law and Policy of the World Trade Organization, pp. 552-584.

[21] See ibid.

[22] Ibid.

[23] Article XX (b) and (g) respectively of the GATT.

[24] WTO Appellate Body Report, Brazil- Measures Affecting Imports of Retreaded Tyres, (DS 332), 3 December 2007; see Van den Bossche, P., & Zdouc, W., supra note 20 at 554 for a more in depth overview.

[25] Van den Bossche, P., & Zdouc, W., supra note 20 at 554.

[26] US-Gasoline, supra note20 and Brazil-Retreaded Tyres, supra note 24 respectively.

[27] Brazil-Retreaded Tyres, supra note 24, para. 178, these factors have been repeated in all relevant WTO jurisprudence, see for example WTO Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, (DS285) 7 April 2005, para. 307; 11 December 2000, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef, (DS161) (DS169), at para 162 for example.

[28] Brazil-Retreaded Tyres, supra note 24, para.182; see Van den Bossche, P., & Zdouc, W., supra note 20 at 556.

[29] Ibid at para. 144.

[30] Ibid at para. 151.

[31] See “Carbon Majors Funding Loss and Damage: A discussion paper by Julie-Anne Richards and Keely Boom” supra note Error! Bookmark not defined. at 12 and 44-52.

[32] See WTO Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products (DS 58), 12 October 1998 and Van den Bossche, P., & Zdouc, W., supra note 20 at 564.

[33] Ibid para. 141.

[34] See Van den Bossche, P., & Zdouc, W., supra note 20 at 567.

[35] See ibid and China- Raw Mat

[36] See G. Marceau and J. Wyatt, (2013), “The WTO’s Efforts to Balance Economic Development and Environmental Protection: A Short Review of Appellate Body Jurisprudence” Latin American Journal of International Trade Law (2013) for a full discussion of all case law in this regard and related to the right of WTO Members to pursue policies for the protection of the environment.

[37] See WTO Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products (DS 58), 12 October 1998 para. 158.

[38] Ibid para. 160.

[39] WTO Appellate Body Report, United States- Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 21.5 of the DSU by Malaysia, DS58) 22 October 2001, para, 115-134.

[40] “Carbon Majors Funding Loss and Damage: A discussion paper by Julie-Anne Richards and Keely Boom” supra note Error! Bookmark not defined. at 16.

[41] Boisson de Chazournes, L. & Mbengue, M. M., supra note 1 at 18.

[42] H. Mann et al. (eds.), IISD Model International Agreement on Investment for Sustainable Development, Article 34, at 47 (2nd ed. 2005), available at http://www.iisd .org/pdf/2005/investment_model_int_handbook.pdf.