Edited by Panagiotis Delimatsis
Chapter 2: Common but differentiated responsibilities in transnational climate change governance and the WTO: A tale of two ‘interconnected worlds’ or a tale of two ‘crossing swords’?
This chapter deals with climate change and trade, from the perspective of the normative interaction between common but differentiated responsibilities (CBDR) and the World Trade Organization (WTO) regime. In this vein, the chapter first examines the content and legal status of CBDR in international law, reaffirming the obvious, i.e. that CBDR does not enjoy independent legal status under international law. Then, the discourse turns to examine whether it is somehow 'inherent' in WTO law, still cautioning against overstating the relevant impact of either the reference to the objective of sustainable development in the Marrakesh Agreement’s Preamble, or that of the WTO rules on special and differential treatment (S & D) for developing countries. Given the fact that CBDR lacks independent legal status in international law, the chapter addresses the question whether CBDR, as reflected or operationalized via provisions of multilateral environmental agreements (MEAs), such as those of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, may still be resorted to in WTO dispute settlement for climate change measures. Distinguishing between using MEA provisions reflecting/operationalizing CBDR in a WTO dispute settlement, either as applicable law, or as an interpretative tool, the chapter concludes that CBDR's pertinence in WTO disputes is rather overstated, insofar as the interaction between CBDR and WTO law should be neither framed as a tale of two 'interconnected worlds', nor a tale of two 'crossing swords'.
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