Preambular language is important in signalling the intent of the drafters of an agreement, their objectives in drafting and ratifying it. As such, it has been used to help interpret substantive provisions within trade agreements.6 For both reasons—as a public signal and because of the legal implications—it is desirable to have language in the preamble that reflects the value the parties place on the environment and sustainable development more broadly.
Option 1:Preambular language stating that environment and sustainable development are among the objectives of the agreement
May be used in interpretation of the agreement’s provisions, as a guide to the parties’ intentions in balancing trade/investment objectives and broader objectives.
Examples
Can be framed as one of the various preambular recitals:
“Recognizing that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development and that the economic partnership can play an important role in promoting sustainable development … (Japan- Brunei EPA, preamble)
How Commonly Used
Or can be framed as one of a list of objectives:
“… to develop international trade in such a way as to contribute to the objective of sustainable development and to ensure that this objective is integrated and reflected in the Parties’ trade relationship;” (EFTA-Hong Kong FTA, Preamble)
How Commonly Used
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The best-known example of this from an environmental perspective was the WTO Appellate Body’s use of the preambular text of the Marrakesh Agreement Establishing the WTO, in the case US – Shrimp. They used the preambular commitment to sustainable development as part of the supporting argument for their finding that GATT’s Article XX (g) could cover measures designed to conserve living exhaustible natural resources such as sea turtles. (Appellate Body Report, paras. 127–131).