Strengthening international climate law through regional trade agreements: Towards concretisation, adjudication and enforcement?

Abstract Recent bilateral and plurilateral regional trade agreements (RTAs) increasingly incorporate climate‐related provisions, signalling a potential convergence of international trade and climate law. This trend goes beyond defensive provisions seeking to avoid conflicts between the two legal regimes, such as exceptions recognising climate change as a legitimate justification for trade restrictions. Among more proactive provisions found in newer generation RTAs, the article focuses on ‘linkage provisions’ requiring parties to effectively implement multilateral climate agreements, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. While these agreements were often regarded as providing parties with much discretion or even as soft law, the recent Advisory Opinion on Obligations of States in respect of Climate Change by the International Court of Justice (ICJ) clarified their legal bindingness and concretised their legal requirements. Drawing on the findings of the Court, the article maps central climate treaty requirements on mitigation and systematises linkages between climate‐related treaties and RTAs into four categories: participation linkage, implementation linkage, adjudication linkage and enforcement linkage. The paper then analyses to what extent RTAs further concretise central climate treaty obligations and allow for their adjudication and enforcement via trade dispute resolution mechanisms. Overall, the article finds that relatively few RTAs, at present, provide textual concretisation of climate commitments but highlights that some trade agreements would in principle allow parties to initiate state–state ‘climate litigation’ and activate compliance mechanisms to strengthen effective implementation of the UNFCCC and the Paris Agreement.