Addressing the Global Climate Change Problem in GATT/WTO Law: The Vision of a New International Climate Law Based on International Distributive Justice

Abstract

‘International distribution justice’, not ‘most favored nation’ (MFN), is the appropriate core principle to govern a law of obligations such as that of the World Trade Organization (WTO). The international distributive justice principle delivers opportunity for economic development because it observes the ‘differences’ principle that characterizes distributive justice, whereas the MFN principle does not, for it distributes obligations erga omnes partes. On the international distributive justice model, obligations are distributed in accordance with WTO member countries’ capacities to bear them. The distribution metric is simple: the degrees of obligation to observe WTO law should range from ‘nil’ to ‘absolute’ along the range of ‘least-developed’, ‘developing’ and ‘developed’ countries. The rank ordering of countries should occur on the basis of their gross domestic product (GDP) status alone, for that status is sufficiently indicative of every country’s economic condition. Accordingly, the current WTO sense of ‘least-developed’, ‘developing’ and ‘developed’ countries should be abandoned in favor of their distinction in terms of their GDP status. Quite properly, there is global interest in the development of a climate law that will deliver the reduction of greenhouse gas (GHG) emissions. The core principle of that law must also be international distributive justice, in order that there be an equitable distribution of the cost burden of GHG reduction. The concept of international distributive justice is discernible in the ‘common but differentiated responsibilities’ doctrine of multilateral environmental agreements (MEAs), but there is no clear relationship between MEAs and the WTO/GATT legislative scheme. A new climate law securely based on the international distributive justice principle will determine that relationship once it is also the core principle of WTO law. Then only the legislative power of the United Nations is required to give the new climate law a coercive power that obliges all GHG emitters.