Sustainable Development Goals vs Non-Discrimination in WTO Law: Does the End Justify the Means?

Abstract

The UN Sustainable Development Goals (SDGs) and their explicit reference to the WTO treaties offer a new incentive to rethink the regulatory structure of Special and Differential Treatment (SDT) and the scope of the General Exceptions in WTO law: Among others, the SDGs aim at overcoming the negative side-effects of the recent years of massive structural change in the global market. Negative side-effects of international trade – such as pollution of climate and environment, exhaustion of natural resources, dangerous working conditions along with a rise in inequality – are among others enabled by WTO law to the extent that WTO law explicitly rules environmental and human rights standards as being outside of its scope. In this article, we therefore analyse the role of WTO law in contributing to inequality between and within states – and its ability to embrace a (partial) cure. In particular, we address the extent to which the promotion of SDGs qualifies under the general exceptions in GATT and GATS, and whether SDGs are able to strengthen SDT by clarifying the scope of regulatory flexibility. We conclude that otherwise inconsistent policies strictly aiming at achieving SDGs will – in line with Brazil–Taxation – qualify under the general exceptions. Furthermore, while SDGs indeed inform the normative content of SDT, it is important to keep in mind that from a regulatory perspective, discrimination between “countries in which the same conditions prevail” is irreconcilable with the purpose and goal of the SDGs.

Keywords: Sustainable Development Goals, WTO, GATT, GATS, Special and Differential Treatment

JEL Classification: K33