EXPLORING CLIMATE SECURITY TO ARTICLE XXI OF THE GATT.

• Author: Franks, Samantha

1. INTRODUCTION

   As fires rage across North America and the Artie melts, it is indisputable that climate change is real, dangerous, and accelerating. (1) The decades long mission of the international community to halt the warming of the planet has largely failed. (2) Already, the impact of climate change can be felt around the globe in increasingly drastic and dangerous ways. Even more alarmingly, the best scientific estimates tell us there are only a handful of years left to prevent insurmountable damage. (3) As the effects of environmental degradation grow more severe, the reality is stark: Climate change is no longer merely a cause for ecological concern, but instead presents a severe, tangible threat to the planet and all its inhabitants.

   Historically, the international community's response to environmental problems originated from treaties, with a handful of multilateral declarations and many dozen bilateral agreements serving as the cornerstone for global climate cooperation. (4) As those treaties have largely faltered in the face of substantive efforts to combat environmental degradation, international actors have grown increasingly creative. (5) International environmental law now appears in a variety of types of international law, including human rights law, (6) humanitarian law, (7) the law of the sea, (8) space law, (9) and trade law. (10)

   Taken together, the understanding that climate change is a threat and the realization that international environmental law is a creative and burgeoning field results in an obvious conclusion: Climate change will change the shape of well-established norms in international law. This reality is particularly clear in international trade law. In recent years, the norms of international trade have already appeared increasingly unsteady. In the future, this unsteadiness will likely combine with the above factors to see an acceptance of climate change as a reason to derogate from established trade patterns." The most likely way for these derogations to occur is through the invocation of Article XXI of the General Agreements on Tariffs and Trade ("GATT"). (12) Indeed, by applying the increasingly relevant field of climate security to international trade law, it seems clear that countries not only can but ultimately will claim climate change as a security threat under Article XXI, thus allowing for deviations in long standing trade law.

   This paper will explore the path towards Article XXI's expansion in three parts. In Part II, it will explore the expansion and use of Article XXI in recent years. In Part III, it will show how the National Security Council and various countries have begun to treat climate change as a national threat. In Part IV, it will explore what an invocation of Article XXI in the name of climate change might look like. Part V concludes.

2. THE EXPANSION OF ARTICLE XXI

   At its core, the goal of international trade law is to foster peace through economic partnerships. (13) The GATT was established in the wake of World War II, with the intention being in no small part to normalize relations between a tense, battered world. (14) Because the goal of trade was not merely to create shared economic prosperity, but ultimately a more peaceful international system, trade law was built on the notion that the rules would be strictly upheld. In 1994, the GATT evolved to include the World Trade Organization ("WTO") and became the system of trade recognized today. (15)

   Derogations in the name of security are one of just a handful of exceptions to the strict structure of trade law under the GATT. (16) Article XXI sets out the standard for security derogation, and states in its entirety:

   Nothing in this Agreement shall be construed

   (a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or

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

   i. relating to fissionable materials or the materials from which they are derived;

   ii. relating to the traffic in arms, ammunition, and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;

   iii. taken in time of war or other emergency in international relations; or,

   (c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. (17)

   The exception was intended to be read narrowly and used rarely. (18) As a result, for the first seventy years of the GATT's existence, it was invoked only a handful of times, resulting in inconclusive and nonbinding results. (19) In recent years, states have breathed new life into Article XXI, bringing a rash of claims before the WTO in the name of national security. (20) Section (b) and (b)(iii) have proven the most contentious.

   The WTO first defined the essential security interest in a landmark ruling in April 2019 between Russia and the Ukraine. In that case, Russia blocked trade routes between Ukraine, Kazakhstan, and the Kyrgyz Republic that required transit through Russia. (21) Russia claimed this was necessary in light of the political unrest in the Ukraine and justified the breach of its WTO obligations under Article XXI. (22) It further argued that a WTO dispute settlement panel was not authorized to review the security exception, because Article XXI should be read as self-judging. (23) Russia found proof for this argument in Section (b), which states that a state may derogate when "it considers [it] necessary." (24) The panel rejected the self-judging argument, but found Russia's actions permissible under Section (b)(iii), accepting that the situation between the two states had risen to that of "war or other emergency in international relations." (25) The panel went on to define "essential security interests" as interests "relating to the quintessential functions of the state, namely, the protection of its territory and its population from external threats, and the maintenance of law and public order internally." (26)

   In the time since the Russia-Transit opinion, a handful of security exception cases have appeared before the WTO. (27) The security exception, once obscure, now...