Extraterritorial Climate Change Obligations and Their Implications for Unilateral Climate-related Trade Measures
摘要
Climate change is a complex global problem, not a single-source local issue. Recent international climate change cases emphasise the extraterritorial dimension of climate change obligations. Unlike transboundary harm, climate obligations may not require the causal link between the act that originated in a country’s territory and the infringement of a right. This article first examines and proposes two potential sources of extraterritorial climate obligations. The first concerns the extraterritorial application of other branches of international law, including human rights obligations in the context of climate change and obligations to prevent transboundary harm. The second arises from the nature of climate mitigation obligations and necessitates close consideration of the principle of common but differentiated responsibilities. By defining and exploring the contours of a state’s climate obligations, this discussion becomes relevant in the context of the increasing use of unilateral climate-related trade measures, particularly those of the EU, often perceived as extraterritorial in scope and application. Shifting from mandating specific actions under the Kyoto Protocol, the Paris Agreement permits each country to define its own nationally determined contributions (NDCs). It is worthwhile to examine whether such self-determined climate actions can include unilateral restrictions on certain imported products based on their embedded emissions and whether these restrictions infringe upon the rights of other Paris Agreement parties to set their own NDCs. Ultimately, delineating a state’s extraterritorial climate obligations can justify action on unilateral climate-related trade measures and offer relevant context if challenged at the WTO. This article concludes by analysing the relevance and implications of extraterritorial climate obligations, as demonstrated in ongoing climate litigation, for international trade law.