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Trade and environment in the EU and WTO: legitimacy, proportionality and institutional power play

Trade and environment in the EU and WTO: legitimacy, proportionality and institutional power play
Trade and environment in the EU and WTO: legitimacy, proportionality and institutional power play
The relationship between trade and environment is complex. Notwithstanding that these interests are fundamentally interdependent, the Court of Justice (Court) and WTO Appellate Body (AB) have both had to balance trade liberalisation and environmental protection, typically in cases involving a challenge to trade-restrictive national environmental regulation, where setting aside such regulation would contribute to negative integration. Such judicial balancing raises legitimacy questions relating to three areas of tension: first, substantively, between trade liberalisation and environmental protection; secondly concerning the relationship between supra/international rules and national regulation; and thirdly, relating to a supra/international judicial body (potentially) setting aside a national regulator’s act. The ongoing credibility of the EU and WTO is dependent upon mitigating these questions, an imperative intensified by the emergence of ‘popular globalisation scepticism’ in contemporary politics. Building upon recent scholarship on conceptualisations of legitimacy in international law, this paper first critically scrutinises the legitimacy questions arising from such judicial balancing, contextualising the problem in contemporary political events. Secondly, the respective roles of the Court and AB are examined, and the significance of the scope of their authority evaluated. Thirdly, the reasoning of the Court and AB is analysed. In conclusion, the political importance of the Court and AB’s language on proportionality and ‘weighing and balancing’, indicating sensitivity to national values, is highlighted. It is however recognised that to satisfy administrative due process, key to input legitimacy, the objective judicial analysis which underpins the Courts’ tests is crucial, and it is this which will contribute to output legitimacy.
2364-8392
87-119
Springer
Reid, Emily
a92c07ed-6f38-49fc-a890-0339489df255
Krämer-Hoppe, R.
Reid, Emily
a92c07ed-6f38-49fc-a890-0339489df255
Krämer-Hoppe, R.

Reid, Emily (2020) Trade and environment in the EU and WTO: legitimacy, proportionality and institutional power play. In, Krämer-Hoppe, R. (ed.) Positive Integration - EU and WTO Approaches Towards the "Trade and" Debate. (European Yearbook of International Economic Law (EUROYEAR), , (doi:10.1007/978-3-030-25662-3_5), 10) Cham. Springer, pp. 87-119. (doi:10.1007/978-3-030-25662-3_5).

Record type: Book Section

Abstract

The relationship between trade and environment is complex. Notwithstanding that these interests are fundamentally interdependent, the Court of Justice (Court) and WTO Appellate Body (AB) have both had to balance trade liberalisation and environmental protection, typically in cases involving a challenge to trade-restrictive national environmental regulation, where setting aside such regulation would contribute to negative integration. Such judicial balancing raises legitimacy questions relating to three areas of tension: first, substantively, between trade liberalisation and environmental protection; secondly concerning the relationship between supra/international rules and national regulation; and thirdly, relating to a supra/international judicial body (potentially) setting aside a national regulator’s act. The ongoing credibility of the EU and WTO is dependent upon mitigating these questions, an imperative intensified by the emergence of ‘popular globalisation scepticism’ in contemporary politics. Building upon recent scholarship on conceptualisations of legitimacy in international law, this paper first critically scrutinises the legitimacy questions arising from such judicial balancing, contextualising the problem in contemporary political events. Secondly, the respective roles of the Court and AB are examined, and the significance of the scope of their authority evaluated. Thirdly, the reasoning of the Court and AB is analysed. In conclusion, the political importance of the Court and AB’s language on proportionality and ‘weighing and balancing’, indicating sensitivity to national values, is highlighted. It is however recognised that to satisfy administrative due process, key to input legitimacy, the objective judicial analysis which underpins the Courts’ tests is crucial, and it is this which will contribute to output legitimacy.

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More information

Accepted/In Press date: 29 April 2019
e-pub ahead of print date: 25 October 2019
Published date: 2020

Identifiers

Local EPrints ID: 430605
URI: http://eprints.soton.ac.uk/id/eprint/430605
ISSN: 2364-8392
PURE UUID: 28842ac9-2c4b-411b-8862-680191eace78
ORCID for Emily Reid: ORCID iD orcid.org/0000-0001-5780-6759

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Date deposited: 07 May 2019 16:30
Last modified: 18 Feb 2021 16:52

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Author: Emily Reid ORCID iD
Editor: R. Krämer-Hoppe

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