In a recent speech to the European Parliament, WTO DG Pascal Lamy had this to say in the context of efforts to fight climate change:
Many of those advocating a “go-it-alone” approach draw on WTO jurisprudence, in particular on the Shrimp-Turtle reports from the WTO Appellate Body to argue that the WTO has finally opened the door to unilateral action. First, allow me to point out that, as important as the Shrimp-Turtle Case may be, it dealt only with shrimps and turtles. And by this, I do not mean to belittle either shrimps or turtles - do not misunderstand me! What I am simply saying is that climate change mitigation measures, of the sort that some are now advocating, would be likely to affect a whole range of different economic sectors, like the entirety of the aluminium and steel sector for instance. They would have an entirely different economic reach.
Second, the Shrimp-Turtle Case, has set several conditions which would need to be respected for unilateral measures to be green-lighted. Such as, for instance, that all efforts first be made to achieve an consensual multilateral accord. In addition, many thorny questions — both economic and legal - would have to be tackled in whatever go-it-alone legislation emerges, to make it WTO-proof. Questions such as how you calculate the greenhouse gas emissions of others, how you would compare them to your own, and how you would build “flexibility” into your system to accommodate the specificities of other trading partners would all be part of the uphill climb. So you should be under no illusions that this is somehow an easy approach.
I agree completely that such an approach will not be easy. However, I do think that, at least in theory, it is possible to draft a law involving unilateral measures to limit greenhouse gases in a way that satisfies WTO rules. In practice, though, whether such a measure could come out of the always messy legislative process is more difficult to say. Finally, with regard to Shrimp-Turtle, if I were writing the legislation I'd try hard to make sure it does not violate GATT Articles III/XI, so what we might not even have to get to Article XX.
