ADAPTING GATT ARTICLE XXI(B) (III)TO CLIMATE CHANGE THREATS: AN OVERDUE RETHINKING OF SECURITY BLUES FOR AN URGENT GREEN WAY FORWARD?

• Author: Wei-En, Daniel Kang

I INTRODUCTION

The previous decade concluded by elevating the urgency of climate change action, with climate exacerbating increasingly catastrophic extreme weather events in recent years, resulting in their unprecedented frequency, severity and reach. (1) Climate change threats are unlikely to have climaxed, with January 2020 marking the 421st consecutive month of global temperatures remaining above the 20th century average and the highest across 141 years of records, (2) and rapidly rising sea-levels now a likely threat with Antarctic temperatures breaking records. (3) This urgency is ostensibly accepted internationally, with the 193 State parties to the Paris Agreement (4) combating climate change through Nationally Determined Contributions ('NDCs'). However, the NDCs currently remain inadequate in fulfilling the Paris Agreement's goal of limiting global warming to 1.5[degrees] C above pre-industrial levels by 2100. (5) While the EU has declared a 'climate emergency' (6) alongside an expanding pool of governments, (7) this 'global understanding' (8) on the necessity of climate action appears largely symbolic.

Various UN agencies emphasise how international climate action remains inadequate, and the 'life-threatening' impacts of climate change necessitate urgent efforts to enhance NDCs. (9) Moreover, climate change denialism still persists, with governmental voices decrying established science as 'scaremongering' and suggested climate policies as 'economic illiteracy' in rejecting the anthropological causes of climate change. (10)

While diplomatic channels appear inadequate in achieving State accountability and support for climate action, (11) trade interests may provide leverage in effectively inducing State action. Threats from France and Ireland to suspend an EU-Mercosur trade deal, (12) and the EU's subsequent condemnation of the Brazilian government's inaction during the Amazonian fires (13) sparked fears of Brazil's economic isolation from its largest trading partner within Brazilian agricultural and political circles. (14) This has arguably pressured President Bolsonaro into abandoning earlier denial of the fires (15) and to adopt national action. (16) Without a centralised UN agency to address climate action accountability, and with the World Trade Organization ('WTO') becoming increasingly involved in discussions on climate and trade, (17) the WTO's extensively developed agreements and active jurisprudence (18) appear primed to contribute productively to international climate action by offering States with a potential avenue for achieving accountability.

This article focuses on exploring the applicability of the GATT security exception under article XXI(b)(iii) (19) to a State's contribution or refusal to act on climate change threats, allowing States to justify otherwise WTO-inconsistent trade barriers against other States which fail and refuse to adhere to climate action obligations. Part II explores article XXI(b)(iii)'s applicability to climate change threats based on the three-tiered test established in the first WTO Panel ruling on article XXI in Russia--Measures Concerning Traffic in Transit. (20) Part III then explores and addresses possible criticisms of this potential expansion of article XXI(b)(iii)'s scope. Finally, in addressing the uncertainty of the provision's current applicability to climate change threats, Part IV explores possible solutions to ensure this application.

II CONSIDERING APPLICATION: RUSSIA--TRAFFIC

Article XXI(b)(iii) of GATT provides that:

Nothing in this Agreement shall be construed...

(b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests...

(iii) taken in time of war or other emergency in international relations....

For article XXI(b)(iii) to exempt a trade measure enacted against climate change threats, the following three-tiered test must be satisfied: (i) the measure must have been taken 'in time of ... an emergency in international relations'; (ii) the invoking State must articulate the specific essential security interest it seeks to protect; and (iii) the invoking State must demonstrate that the measure is plausibly taken to protect its asserted interest.

The Panel in Russia--Traffic offered the first comprehensive analysis of article XXI by an international trade dispute settlement body since the conclusion of negotiations on the original GATT in 1947. While the Panel report in Russia--Traffic only strictly binds the parties to the dispute (Ukraine and Russia) and only in relation to this dispute, (21) its adoption creates 'legitimate expectations' for WTO members and is relevant (22) in assessing article XXI(b)(iii)'s scope. Russia--Traffic confirms that article XXI(b)(iii) is not 'self-judging', (23) as WTO Panels have inherent jurisdiction to adjudicate the article's invocation, (24) and are required to address the exception as a 'relevant provision' if cited by a disputing party. (25)

1. Emergency in International Relations

   In Russia--Traffic, the Panel highlighted that the existence of an 'emergency in international relations', the ostensibly most subjective element (26) of article XXI (b)(iii), is not self-determined by an invoking Member but amenable to a Panel's objective determination. (27) To constitute an emergency, the situation must be a disaster, 'danger or conflict' arising 'throughout a region' unexpectedly and requiring urgent action, (28) and must also extend beyond political or economic differences, constituting a 'heightened tension or crisis', or 'general instability engulfing or surrounding a state'. (29) This indicates that a diplomatic spat over a Member's refusal to take climate action is unlikely to fulfil the requirement (30) even where there is politically urgency. (31) Instead, the situation must be proven as 'of concern to the international community', with the Panel referring to a relevant UN General Assembly resolution to substantiate such international concern. (32) Additionally, the Panel clarified that the term 'in time of requires the trade measures in question to not only be taken during the emergency, but also possess 'chronological concurrence' connecting the measure to the emergency's facts. (33) This requirement therefore extends beyond a 'mere temporal coincidence' and excludes factually unrelated trade measures taken during the occurrence of an emergency. (34) Moreover, unlike its preceding subparagraphs, the article's invocation relies on the occurrence of a specific factual situation, (35) and a qualifying measure may therefore cover any products traded by the disputing parties if the other legal criteria are satisfied. (36) In light of these criteria and clarifications, establishing climate change as an emergency in applying article XXI(b)(iii) to climate change threats therefore appears feasible, especially since UN General Assembly resolutions already acknowledge climate change as 'one of the greatest challenges of our time' and its mitigation as 'an immediate and urgent global priority'. (37)

2. Articulation of Essential Security Interest

   1. Essential security interest

      Additionally, the invoking State must articulate a specific essential security interest generally relating to 'quintessential' State functions, including a State's protection of its territory and population from external or internal threats, or maintenance of law and public order. (38) While the Panel implied that these interests should relate to either 'defence or military' or 'maintenance of law and public order', (39) it has shown flexibility in acknowledging that they may be unique to different circumstances and States, and grants an invoking Member the freedom to 'define' its essential security interest. (40)

      However, this freedom is limited by a good faith obligation read into the article by the Panel as a 'general principle of law' and general principle of treaty interpretation. (41) This obligation therefore limits a Member from abusing this freedom to avoid its GATT obligations through disguising economic interests by invoking the article. (42)

   2. Articulation

      To assess if a Member has defined its essential security interest in good faith, it is required to articulate this interest before a Panel 'sufficiently enough to demonstrate [its] veracity'. (43) Here, a satisfactory 'level of articulation' would then be dependent on the nature of the emergency claimed, with 'greater specificity' required for a Member's articulation the further the emergency is from 'armed conflict, or a situation of breakdown oflaw and public order'. (44) This requirement appears to be extremely vague, with nothing in the Panel's report explaining what 'greater specificity' would require where the emergency does not involve the existence or risk of armed conflict. The report only briefly indicates that this articulation may be 'minimally satisfactory', and that there must be nothing in the Member's 'expression of those interests' suggesting that article XXl(b)(iii)'s invocation was merely a 'means to circumvent' its GATT obligations. (45)

      Nevertheless, a Panel may be inclined to still accept climate change threats as a valid essential security interest despite the circumstances being far from the traditional conceptualisation of security as linked by the Panel in Russia--Traffic to the 'hard core' of 'war or armed conflict'.' (46) The Panel has explicitly recognised article XXI(b)(iii) as an exception under the WTO Agreement allowing WTO Members to protect 'non-trade interests', (47) and has not excluded specific interests from constituting an essential security interest. Moreover, the Panel's acknowledgment of security as an evolving concept has manifested not only in the increasing recognition worldwide of climate change as a 'threat multiplier', (48) but also in the Security Council's recognition of 'non-military sources of instability' in 'ecological fields'...