International climate change negotiators need not be intimidated by fears of violating international trade law

The report, International Trade Law and Climate Change – a Positive Way Forward, from the University of Hamburg in collaboration with the Friedrich Ebert Foundation in Germany, states that although the US has decided to opt out of the international co-operation effort that the Kyoto Protocol represents, representatives from the country will still participate in the Bonn climate change negotiations from 19 July. The US delegates will be present in order to ensure that decisions taken by other countries do not infringe US rights under the World Trade Organisation’s (WTO) international trade regime.

However, trade law concerns which are expressed at international environmental negotiations are usually not based on sound legal assessments, but are designed to serve a strategic ‘regulatory chill’ on more progressive governments in order to prevent them from taking meaningful decisions, says the report. “The effectiveness of this ‘regulatory chill’ strategy is enhanced by the fact that diplomats and experts negotiating on climate change often only have a vague understanding of the international trade law relevance of their decisions,” say the authors of the report.

There are a number of areas in which uncertainties regarding international law remain, for instance with eco-labelling schemes. Schemes which take non-product related environmental impacts into consideration are most likely to be interpreted as being in violation of trade law, but they could qualify for exemption if they can be shown to directly contribute to meeting international emission reduction commitments. Trade sanctions against non parties to the Protocol which simply discriminate against goods or services to force countries to join the Protocol are very likely not to be compatible with trade law, says the report.

The report also urges governments to implement the Kyoto Protocol as quickly as possible, since the adoption of a multilateral agreement such as this will considerably reduce uncertainties about the compatibility of climate change measures and international trade law, and would also act as a forum for governments to address trade law tensions. In contrast, failure to implement Kyoto will increase the likelihood of trade conflicts arising from climate change policies.

In order to assist understanding of climate change issues, the Intergovernmental Panel on Climate Change (IPCC) has published the reports from three working groups on the scientific basis of climate change related story), impacts (see related story) and mitigation (see related story), the results of which were announced earlier this year. The reports can be obtained from Cambridge University Press.