Exploring Climate Security to Article XXI of the GATT


As fires rage across North America and the Arctic melts, it is indisputable that climate change is real, dangerous, and accelerating. The decades long mission of the international community to halt the warming of the planet has largely failed. 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. 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. As those treaties have largely faltered in the face of substantive efforts to combat environmental degradation, international actors have grown increasingly creative. International environmental law now appears in a variety of types of international law, including human rights law, humanitarian law, the law of the sea, space law, and trade law. 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”). 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.



Samantha Franks (University of Michigan)



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