How the WTO Can Help Address Climate Change
Elgar International Economic Law series
TRADE, PARTICIPATION AND COMPLIANCE In the previous chapters, we have seen that there is a risk of a WTO challenge to any unilateral action by states trying to ensure that other countries take action on climate change. Moreover, there are questions of the legitimacy of any such action that can be viewed as one state imposing its preferences on another. The Appellate Body has indicated the advisability of multilateral negotiations prior to the use of any trade measures.1 The question arises as to whether there is any hope of using trade measures on a multilateral basis rather than unilaterally, or at least whether there can be a multilateral agreement specifying when such action can be taken. This chapter examines the possibility of including trade measures within a multilateral climate agreement. The Kyoto Protocol and the more recent post-Kyoto negotiations illustrate the concerns about both participation and compliance.2 As international agreements depend on the consent of the parties, countries must view entering into and complying with any agreement as in their self-interest, or at least not significantly against their self-interest. In using any enforcement mechanism, the sanction must be severe enough for each state to view itself as better off bearing the cost of taking climate change action than the cost of the negative incentive.3 However, the remedial provisions also have an impact on the participation rates and the commitments parties are willing to make. As Barrett notes, any post-Kyoto United States – Import Prohibition of Certain Shrimp and Shrimp Products (US...
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