With the gradual deterioration of climate change, the World Trade Organization (“WTO”) faces a dilemma: how much leeway can the institution give its members to pursue trade-restrictive climate action while safeguarding the strength and integrity of the international trading system? The nexus between trade and climate change has become increasingly recognized, with the first-ever “trade day” to be held at this year’s COP28. This linkage gives rise to the question of how the General Agreement on Trade and Tariffs (“GATT”), laying the legal foundations for the WTO, accommodates members’ mitigatory climate action. In this regard, the GATT strictly separates the agreement’s primary rules from its two exceptions, (i) the General Exceptions in Article XX and (ii) the National Security Exceptions in Article XXI. If members pursue trade-restrictive measures to fight climate change, the GATT’s regulatory scheme only analyzes whether these exceptions apply. The GATT’s primary rules thus turn a blind eye towards members’ pertinent policy considerations, such as building climate resilience. This analytical distinction between the primary rules and the exceptions is referred to as the rules-exceptions paradigm.
This paper examines the role of the rules-exceptions paradigm in the fight against climate change, analyzing whether members can and should invoke the two GATT exceptions to defend climate action that infringes on WTO rules. It argues that it is practically unfeasible for members to invoke either exception for that purpose, which has normative implications for the legitimacy of the WTO as an institution and the strength of the international trading system in the long run.
In light of the inadequacy of the rules-exceptions paradigm in the GATT to accommodate climate change, the WTO needs to explore alternative ways of creating more policy space for members while safeguarding the principle of non-discrimination and deterring a potential surge of disguised protectionism. This paper therefore calls for coordinated multilateral action through the implementation of a WTO climate waiver that will permit members not to comply with certain WTO obligations if they pursue climate action that meets the waiver’s conditions. Having examined potential alternatives to a waiver as well as practical challenges to its implementation, this paper concludes with reflections on how a climate waiver can advance the WTO as an institution and strengthen multilateralism in the fight against climate change.
Throughout the analysis, special emphasis is placed on the reconceptualization of national security as inextricably entailing climate security in modern times—a nexus that is traditionally underexplored in the literature on Article XXI. In particular, the paper shows that the new “complete breakdown of international relations” test for Article XXI(b)(iii), recently established in United States–Origin Marking Requirement, is conceptually irreconcilable with the gradually evolving nature of climate change. The revised test has also counterproductive implications for fighting climate change, as a “breakdown” of relations implies the erosion of multilateral and cross-instructional collaboration needed to effectively tackle climate change.
Examining the Inadequacy of the GATT's Rules-Exceptions Paradigm in the Fight Against Climate Change: The Case for a WTO Climate Waiver,
U. Pa. J. Int’l L.
Available at: https://scholarship.law.upenn.edu/jil/vol45/iss1/6