OPINION – Lesson learned: climate failures and ozones success

Lesson learned: climate failures and ozones success


We cannot re-negotiate the Paris Agreement, but we can move in the WTO to ensure all climate actions are protected to allow the use of trade sanctions, where appropriate, to insulate against decisions that penalize climate action as in restraint of trade, and to ensure the Paris Agreement will succeed where previous pacts have failed.

Canada’s federal Environment Minister Steven Guilbeault, pictured recently on the Hill. The Hill Times photograph by Andrew Meade

SAANICH GULF ISLANDS, B.C.–I am the only MP—maybe the only living Canadian—to have been involved in negotiations of the treaty that saved the ozone layer, the 1987 Montreal Protocol, and the early negotiations of what became the UN Framework Convention on Climate Change (UNFCCC) and its signing at the Rio Earth Summit, and ratification in 1992, the negotiation that led to the Kyoto Protocol, and to be present at the negotiations that led to the Copenhagen proposal to replace Kyoto and in the negotiations in Paris at COP21 in 2015.

With this decades-long experience in global environmental treaties, I believe it is past time to compare the success of the Montreal Protocol protecting the ozone layer against the failure in climate treaties. It is time to see what differences can be identified. Why did one succeed so spectacularly while the other sputters?

Many will say that the big difference between Montreal and Kyoto is that fossil fuels are the engine of the whole economy while ozone depleting substances impact a relatively small slice of it. That is true, but it’s only a partial explanation.

I have come to believe that the more significant factor was timing and the rise of the increased power of multinational corporations, the sway of neoliberalism through the 1990s, and the creation of the World Trade Organization.

The extent to which the WTO has sabotaged global climate action has been barely examined.

The WTO was built on the post-war framework of the General Agreement on Tariffs and Trade (GATT), greatly expanding the scope of international trade, and shifting the framework to increased corporate rights.

The GATT, upon which the WTO was built, had never set out such sweeping powers to privilege corporate profits over societal well-being. Indeed, GATT’s Article XX created exceptions for government policy measures that were deemed necessary to “protect human, animal or plant life, or the conservation of finite natural resources.” These provisions still exist, but they have been all but ignored by the WTO.

In 1997, shortly after the WTO was established, the Kyoto Protocol to protect climate stability was negotiated in Japan at COP3. Ten years earlier, the Montreal Protocol to protect the ozone layer was successfully negotiated, using trade sanctions as an enforcement mechanism. The Montreal Protocol was spectacularly successful. Ozone-depleting substances were banned in increased force over a period of years. The ozone layer is now repairing itself.

In almost every respect, the Kyoto Protocol was based on the architecture of the ozone treaty. The concepts of “common but differentiated responsibility” of having industrialized countries cut emissions first with developing nations moving later were transported from ozone to climate.

The only missing piece was the use of trade sanctions as an effective enforcement mechanism. The WTO created a committee on trade and the environment. It never made a ruling on the issue, but it raised the question: “are environmental treaties obstructing trade?”

Somehow, in the decade between Montreal and Kyoto, the trade ministers of industrialized countries instructed the environment ministers that trade sanctions were not available to enforce climate agreements. Even Canada, which had led the way in the fight against chlorofluorocarbons, significantly changed our stance. Canada went to Kyoto with a clear message: “if trade sanctions are included, we will not sign.”  The result is that the Kyoto Protocol was left with no effective enforcement mechanism, and every subsequent climate treaty has similarly been deprived of the teeth to make the agreement work.

With the WTO’s creation, the exemptions under GATT’s Article XX have largely been assumed to be unavailable for global climate action. This is largely due to WTO appellate body rulings on two unrelated disputes.

The various efforts to use trade sanctions for conservation were ruled by the WTO appellate body to fall outside of Article XX exemptions. The two leading cases are known as “Tuna Dolphin” and “Shrimp Turtle.”

But in rejecting U.S. trade-sanctions in the interest of conserving dolphins and endangered sea turtles, the appellate body ruled: “we have not decided that sovereign states should not act together bilaterally, plurilaterally or multilaterally, either within the WTO or in other international fora, to protect… the environment. Clearly, they should and do.”

The climate crisis clearly meets the efforts the WTO singles out as allowable—strong multilateral action has been repeatedly attempted, from the 1992 UNFCCC, through to the 1997 Kyoto Protocol and the 2015 Paris Agreement.  Every nation on earth is now legally bound to act.

But we have no mechanisms for enforcement.

We cannot re-negotiate the Paris Agreement and insert sanctions, but we can move in the WTO to ensure that all climate actions are protected under Article XX to allow the use of trade sanctions, where appropriate, to insulate against decisions that penalize climate action as in restraint of trade, and to ensure the Paris Agreement will be effective where previous agreements have failed.

Canada has an opportunity to move this forward at the upcoming 13th Ministerial Conference taking place Feb. 24-29, 2024, in Abu Dhabi, UAE. So the challenge is for International Trade Minister Mary Ng to make sure the 2023 “UAE consensus” on climate from COP28 is operationalized in the UAE in 2024.

Green Party Leader Elizabeth May represents Saanich Gulf Islands, B.C.