Workshop on International Law, Natural Resources and Sustainable Development

Workshop on International Law, Natural Resources and Sustainable
Incorporating Sustainable Development: Applying Lessons Learned from WTO Law to
International Investment Law
Frederico Ortino and Emily Lydgate
School of Law, Kings College, London
Promoting international trade and attracting international investment are often
characterized as integral to economic development, but there is no guarantee that they will
create sustainable growth. To do so, they must lead to responsible use of natural resources
and provide lasting economic benefits. To aid in achieving these goals, trade and investment
treaties might include ‘sustainable development’ as a treaty objective. This is already the
case in the founding agreement of the World Trade Organization, and there is a growing
sense that sustainable development should be recognized as a fundamental goal in
investment treaties, as well. Thus, despite important differences in the goal and structure of
WTO agreements versus investment treaties, the WTO experience is instructive. Primarily, it
reveals the unique character of ‘sustainable development’ as a term of both compromise
and contestation. This is evident in WTO agreements, which refer to the ‘mutual
supportiveness’ of sustainable development and trade liberalization and also the need to
‘balance’ these goals. The former suggests that sustainable development is an outgrowth of
trade liberalization, while the latter implies the need to weigh and prioritize conflicting
goals. Similar complexities arise in the investment context. These broad conceptual issues
take on more pragmatic relevance in dispute settlement. In the WTO, the conceptual
breadth and controversy of sustainable development means that it is difficult to apply as a
legal rule; instead it has a less powerful role as a guiding principle. Nonetheless, its influence
should not be dismissed: it acts as an important source of soft power.