At WTO there’s a climate emergency, but not in international relations

In June, Politico published an article titled, “Is Climate Change an Emergency at the WTO?” The question posed was not about the environment, but rather whether the organization will allow climate change to be used as an excuse in international relations. 

The question was anticipated in connection with China’s case at the World Trade Organization against parts of President Biden’s Inflation Reduction Act.

The article implied that the U.S., citing climate change, might invoke the WTO’s Article 21 national security exception in order to obtain a free pass for the measures that China is challenging — namely, various provisions of the clean vehicle and renewable energy tax credits. 

Alas, the answer to the question is “No.” And the problem here is not the word “emergency,” but the idea that climate change is specifically an “international relations” emergency.

The truth is, panels have already interpreted this question in a way that wouldn’t save the Inflation Reduction Act even just from one set of the Chinese claims — those under the General Agreement on Tariffs and Trade. Climate change may be an “emergency,” but it is not considered an emergency in “international relations.”

For example, the U.S. unsuccessfully invoked Article 21 in Turkey’s case against the U.S. over former President Donald Trump’s Section 232 steel and aluminum tariffs. In that case, the panel parsed the phrase “in international relations,” defined as political or economic contact with other countries. Climate change is not the result of any political or economic conflict among nations, the panel reasoned, let alone a conflict that is as “grave or severe” as war.

Unbowed by this, the U.S. has since argued that Article 21 is “self-judging.” This would mean that, as Saudi Arabi tried to argue in a separate case, the panel should limit its findings to merely acknowledging that the exception had been raised, “without engaging in any further exercise.” In other words, the mere assertion of an emergency by the U.S. would, in this case, be enough to carry the day.

But in Ukraine’s 2016 complaint against Russia, the WTO panel already flatly rejected this idea. It wrote that to interpret Article 21 “as an outright potestative condition” — that is to say, to give every country full power to decide what constitutes an emergency under the article — would “be entirely contrary to the security and predictability of the multilateral trading system.” It would, the panel went on, reduce “the existence of a member’s GATT and WTO obligations to a mere expression of the unilateral will of that member.”

A China-related panel report issued last year stated that even if Article 21 should be interpreted as being “partly self-judging,” the U.S. still could not get away with unilaterally asserting an emergency. “[W]e do not consider that it would be solely up to the invoking member to determine the existence of an emergency in international relations,” the report stated. 

This is not to say that WTO case law is the last word on national security. But the use of climate change to invoke a national security exception at the WTO probably won’t work in helping the U.S. circumvent its free trade obligations. 

Marc L. Busch is the Karl F. Landegger Professor of International Business Diplomacy at the Walsh School of Foreign Service, Georgetown University, and a global fellow at the Wilson Center’s Wahba Institute for Strategic Competition.