Using the WTO to Facilitate the Paris Agreement: A Tripartite Approach.

• Author: Eliason, Antonia

TABLE OF CONTENTS I. INTRODUCTION 547 II. BACKGROUND 550 A. The Anthropocene 550 B. The Paris Agreement 551 III. SUSTAINABLE dEVELOPMENT 554 A. Preamble to the GATT and the Agreement Establishing the WTO 556 B. Article XX and the Environment 560 IV. EXCEPTIONS AND WAIVERS 561 V. SPECIAL & dIFFERENTIAL TREATMENT 566 A. A Trade and Climate Change Agreement 567 VI. CHALLENGES TO tHIS aPPROACH 571 VII. GOING BEYOND: ADDRESSING CLIMATE CHANGE 573 VIII. CONCLUSION 575 The Anthropocene is a series of metabolic rifts, where one molecule after another is extracted by labor and technique to make things for humans, but the waste products don't return so that the cycle can renew itself. The soils deplete, the seas recede, the climate alters, the gyre widens: a world on fire. --McKenzie Wark (1) Precarity is the condition of being vulnerable to others. Unpredictable encounters transform us; we are not in control, even of ourselves. Unable to rely on a stable structure of community, we are thrown into shifting assemblages, which remake us as well as our others. We can't rely on the status quo; everything is in flux, including our ability to survive. Thinking through precarity changes social analysis. A precarious world is a world without teleology. Indeterminacy, the unplanned nature of time, is frightening, but thinking through precarity makes it evident that indeterminacy also makes life possible. --Anna Lowenhaupt Tsing (2) I. INTRODUCTION

The world in which humankind lives today is one indelibly changed by human activity, so much so that scientists have designated a new geological epoch that began with the advent of the Industrial Revolution: the Anthropocene. (3) Climate change, which is the greatest threat humanity has ever faced, is a result of human activity in the Anthropocene, particularly by countries of the Global North. From rising ocean levels to temperature increases and more frequent extreme weather events, its effects can be seen across the globe. (4) Scientists have been ringing alarm bells for decades, but only in the past few years has the international legal community given the issue the attention it deserves. With the conclusion of the Paris Agreement in December 2015, the world came together for the first time to address the effects of climate change, with all countries recognizing the necessity of taking measures to mitigate and adapt to the effects of climate change. (5)

The challenges posed by climate change can only be addressed through multilateral means, as climate change is a global issue in the most immediate sense of the word. Lacking in accountability and enforcement mechanisms, the Paris Agreement requires additional support to achieve its full effect. In light of the trend toward regionalism and protectionism, as well as the backlash against globalization as income inequality continues to grow, there is a need to find common multilateral ground. (6) Regional trade agreements between large economies threaten to marginalize developing countries by keeping them at the periphery of innovation either by ignoring capacity-building issues faced by these smaller economies or by keeping membership to such agreements closed.

At a time when multilateralism is under threat, the future of international institutions like the World Trade Organization (WTO) is in question. Critics point to the failures of the Doha Round and the rise in megaregional agreements as indicative of the WTO's imminent demise. (7) Obstruction on the part of the United States to the reappointment of WTO Appellate Body (Appellate Body) members is jeopardizing the WTO's ability to function as a dispute-settlement body. (8) The WTO, however, is far from being irrelevant. The WTO's multilateral framework offers a vehicle for effecting significant progress on climate change. Besides possessing a dispute-settlement system that is more effective than that of any other international judicial body, despite efforts to undermine it, the WTO provides rules and exceptions that allow for the liberalization of international trade while leaving space for regulatory autonomy.

This Article proposes a novel approach for refocusing the multilateral trading system and facilitating the Paris Agreement. Although not perfectly aligned with the goals of the Paris Agreement, the WTO's multilateral framework could provide the necessary flexibilities to work toward meeting the Paris Agreement's targets. At the same time, such flexibilities could help address some of the concerns regarding labor and manufacturing. There are three prongs to using the WTO as a vehicle to achieve progress on climate change.

First, the preamble to the Agreement Establishing the World Trade Organization (WTO Agreement) explicitly recognizes sustainable development as a goal, seeking to protect and preserve the environment. (9) It also recognizes the need for developing countries to share in the growth in international trade. Developing countries will be disproportionally affected by the effects of climate change, yet lack resources to adapt to and to mitigate them. Giving meaning and effect to sustainable development is key to facilitating the Paris Agreement.

The second prong recognizes that certain types of climate change mitigation measures may require violating WTO rules. In such circumstances, limited carve-outs in the mold of the public stockpiling exception relating to food security, with additional built-in sunset provisions, would provide support for countries working to meet their targets, allowing them the ability to break from WTO rules to support domestic industries.

Finally, the third prong envisions the negotiation of a multilateral or plurilateral agreement to help give effect to the Paris Agreement, much as the WTO already works in tandem with the World Intellectual Property Organization (WIPO) in relation to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and with the World Customs Organization in relation to the Trade Facilitation Agreement (TFA). (10) Key to this agreement would be special and differential treatment (S&DT) provisions. The TFA contains next-generation S&DT provisions, which could be leveraged in the context of a future plurilateral or multilateral agreement to help give effect to the Paris Agreement. These provisions include measures relating to capacity building, centered on partnerships between developed and developing countries, and conditional obligations, the timeframe for implementation of which depends on the developing country's self-designation. (11)

Mitigating and adapting to climate change involve costly infrastructural investments, including shifting from fossil fuel--run power plants to clean energy ones. Such measures are disproportionately costly and difficult for developing countries to implement. With climate change mitigation measures, and arguably even with climate change adaptation measures, every country in the world benefits from each individual measure taken by each country. Cooperative mechanisms are as such essential to ensure that progress is made in meeting the goals of the Paris Agreement.

Part II of this Article provides a brief background to the Anthropocene, sustainability, and the Paris Agreement. Part III addresses sustainable development both in the multilateral trade context and in interdisciplinary contexts to arrive at a workable construct that equips the language in the WTO Agreement's preamble with real meaning. Part IV looks at carve-outs from the WTO's rules and posits how they could best be applied to climate change mitigation and adaptation measures. Part V provides a framework for the application of S&DT measures such as those found in the TFA to climate change--related measures. Part VI briefly addresses some of the challenges to the proposed tripartite approach. Finally, Part VII offers suggestions for a broader way forward on climate change and trade, challenging some of the status quo notions regarding free trade and the position of trade in the global economy.

2. BACKGROUND

   1. The Anthropocene

      The Anthropocene in the context of international trade and environmental law, and the legal regime surrounding climate change in particular, can be best understood as arising as a product of technologies used by Global North countries that enabled them to exploit Global South countries. (12) As Angela Harris writes,

      [t]he technologies associated with the Industrial Revolution and reliance on fossil fuel energy over human and animal somatic energy gave colonizing nations an edge over colonized nations, intensifying the socioeconomic inequalities between them. Far from being over and done with, the economic, environmental, and social effects of these global relations of domination continue today. (13) Thus, the current geological epoch finds itself intimately intertwined with notions of environmental sustainability as well as economic development, with exploitation and dominance on the one hand and a perpetuation of poverty on the other.

      Harris frames the relationship between humans and their environment through the lens of vulnerability, arguing that "[a] healthy adult human can only be considered separate from her environment by willfully forgetting this interdependency." (14) Using the idea of vulnerability as a starting point, where humans and nature are "now locked in an ever-tightening feedback loop," (15) the limitations of international agreements that fail to address this dynamic become clear. Julian Agyeman, writing about sustainability and environmental justice, notes that "[t]here is great (and underresearched) potential for the notions of environmental justice, human rights and sustainability to permeate environmental regimes and international policy agreements." (16) Crucially, Agyeman points out that "sustainability as a policy approach can be understood as a more exclusive, 'top-down' phenomenon. Paradoxically, however, the implementation of...