Reflections on Linkage Debates : A Case Study of Trade and Climate Change

This paper will reflect on the burgeoning ‘trade and climate change’ scholarship in the context of previous linkage debates – particularly the trade and environment/human rights/development literature. It will focus on the extent to which unilateral measures adopted by States to fight climate change are ‘legal’ under international trade law rules. It will argue that trade and climate change is a particularly difficult form of linkage for the international trade regime to deal with. But the paper will contend that much of the existing trade and climate change literature appears to have reacted to earlier ‘trade and’ debates in that increased mutual understanding of respective values and legal systems means that the focus is less on denunciation/defence of the World Trade Organisation, and more on the extent to which trade norms can accommodate key environmental/developmental concerns and values. The paper will go on to argue that international trade law has developed significant procedural mechanisms which might assist in problem solving on these issues. But there are significant gaps in its ability to solve substantive legal issues. It will further be argued that norms and standards from other areas of international law (e.g. common but differentiated responsibility) do little to assist in this endeavour. It will be suggested that there is a need to rethink the proper place of/current deficiencies in trade law and wider international law for dealing coherently with the issues faced. There is a danger that otherwise the legal paradigm may exacerbate rather than ease tensions between countries on these issues. Presented at the SIEL 2010 Conference in Barcelona