This article is part of a Synergies series on reviving multilateralism curated by TESS titled From Vision to Action on Trade and Sustainability at the WTO. Any views and opinions expressed are those of the author(s) and do not necessarily reflect those of TESS or any of its partner organizations or funders.

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Trade law and policy faces the challenge to find appropriate responses in support of climate change mitigation and adaption. The reduction of greenhouse gas emissions and the ensuing transition in energy and agricultural policies cannot succeed without appropriate flanking trade policies. Likewise, preservation of biodiversity and fish stocks, combating air and plastic pollution, and preserving the habitat of the high seas cannot succeed without closer economic cooperation in trade and investment policies.

At the same time, geopolitical tensions due to different and competing political systems of democracy and autocracy tend to reduce relations between major powers to the law of coexistence, undermining joint efforts in addressing these and related challenges. The emerging principle of Common Concern of Humankind (CCH) bears the potential of providing guidance to legal interpretation and to policymaking in facing and addressing this dilemma in the coming decades. It offers foundations and an avenue to define areas where cooperation is indispensable and cannot be left and reduced to the law of coexistence of sovereign nation states. To this effect, the international community should develop CCH into a guiding principle of international law.

The 1992 United Nations Framework Convention on Climate Change as well as the 2015 Paris Agreement recognize climate change as a common concern of humankind. Likewise, the 1992 Convention on Biodiversity recognizes biodiversity as a common concern of humankind. The 2001 International Treaty on Plant Genetic Resources of Food and Agriculture recognizes that plant genetic resources are a common concern of all countries. The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage recognizes the “common concern to safeguard the intangible cultural heritage of humanity.” The International Law Commission recognized that “atmospheric pollution and degradation is a common concern of humankind.”

By and large, CCH today focuses on issues relating to sustainability; the 1987 Brundtland Report was framed in terms of common concerns, but essentially developed sustainability on the basis of the principle of common heritage of mankind, which is a different concept effectively excluding claims to ownership and sovereignty. Instead, common concern conceptually stands for the proposition of a shared problem which cannot be solved individually by single nations or states. It inherently entails international cooperation in addressing the problem. Whenever nations, in the process of claims and responses, recognize a shared problem to be a common concern of humankind, they essentially agree that cooperation is necessary. Importantly, common concern is not limited to global problems but may also apply in a region between neighbours, and even within countries. But it always depicts—and is limited to—a problem the solution of which inherently depends upon joint efforts and is not sufficiently accessible to unilateral action.

Beyond such a commitment to cooperate, the principle of CCH has not been fully developed. Its scope and ensuing obligations have remained unclear and need to be developed in the future. The 2015 Paris Agreement expanded the concept and linked it to the protection of human rights and intergenerational equity. In the context of climate change, courts of law increasingly stress the obligation to act upon commitments made. Recently, the European Court on Human Rights invoked common concern of humankind in linking climate change to the right to health as a basis for the obligation of government to act. The Supreme Court of India obliged the government to act upon promises made in protecting biodiversity and wildlife.

More precise contours have been proposed in the literature.* In Cottier (2021), the authors suggest that the principle of Common Concern of Humankind entails three basic components:

• First, the duty to cooperate, which otherwise is not generally required and mandatory in general international law.
• Second, the duty to act to address the common concern, for example through the implementation of international obligations incurred, unilateral promises made, or domestic efforts in addressing the common concern (homework). CCH goes beyond jus cogens, which merely allows taking action erga omnes, but does not oblige to act.
• Third, CCH also implies compliance and the possibility to impose countermeasures against free-riding states not implementing homework promised and not filling their duties in international law incurred in an area recognized as a common concern of humankind.

CCH may eventually develop to be recognized as a legal principle of international law, or of law in general. As much as the principle of sustainability—recognized in the preamble of the Agreement Establishing the World Trade Organization—evolved into a recognized principle and legal methodology requiring balancing ecological, social, and economic interests at stake, it may eventually emerge as a legal principle entailing general obligations as well as specific treaty-based commitments. The evolution will depend upon claims and responses by states in international relations, such as the recognition so far of CCH in climate change, biodiversity, and the outer atmosphere. The scope may vary and be expressed in terms of specific treaty language, going beyond the general principle of CCH.

As of today, CCH is mainly restricted to environmental concerns, including transfer and dissemination of sustainable technologies or addressing plastic pollution of the seas. Other areas may follow suit, but have not been taken up in these terms, such as global migration (except for climate migration covered under the UNFCCC), financial and monetary stability, global health (pandemics), the enforcement of human rights, intergenerational equity, or the problem of inequality within and among nations as one of common concern. It may be argued that keeping international peace per se amounts to one of the most important common concerns of humankind. While international peace and stability amounts to the ultimate goal and yardstick of CCH, keeping peace itself is mainly addressed by deterrence and military power on the basis of coexistence, which does not entail cooperation, except for alliances. It does not entail general and global duties to cooperate and to act beyond the UN Charter, and unilateral efforts made are not inherently beneficial to all of humankind.

In the field of trade regulation, climate change mitigation and adaption and the preservation of biodiversity and of cultural diversity are the fields where CCH, as recognized today, may influence the application and legal interpretation of trade law and where it can inform trade law and policymaking, alongside other principles such as sovereignty, non-discrimination, transparency, equity, and sustainability. It informs the implementation of shared but differentiated responsibility in climate law, providing the obligation to act. Issues relating to public health may be informed by the determination by the World Health Organization of “health emergencies of international concern.” It cuts across all the relevant areas of trade law, from goods, services, and intellectual property to investment law.

The fundamental difference with other principles of international law relies upon the fact that realization and implementation of CCH in terms of addressing and solving a problem inherently benefits all of mankind, both in exporting and importing countries, independently of where benefits are produced geographically. Greenhouse gas reduction, wherever it takes place around the globe, benefits all of mankind. The usual context of national sovereignty, competitiveness, and enhancing market access is reframed and amended by a truly new dimension informing international cooperation. This adds a novel dimension of mutual benefit to international trade relations beyond the political concept of reciprocity and balanced commitments operating under the principle of most favoured nation and national treatment.

As an emerging legal principle, CCH has the potential to support the application and interpretation of existing trade law and support and guide future policymaking and law-making in line with the principle of sustainability, in particular in the field of climate change.

Interpreting WTO Law and Preferential Agreement

So far, parties to WTO disputes under the Dispute Settlement Understanding (DSU) and panels have not made any references to CCH despite the fact that WTO law is not construed and applied in isolation. That could and should change in the future. As other principles of international law and general principles of law, CCH can assist in the application and interpretation of existing trade law in multilateral agreements under the WTO as well as preferential trade and cooperation agreements in applying the Vienna Convention on the Law of Treaties. CCH should be considered as context, and to the extent that it emerges as a legal principle, it has to be taken into account under Art. 31(3)(c) of the convention.

In the context of climate change mitigation and the energy transition, the shift from product standards to product-related and non-product-related process and production standards (npr-PPMs) in the analysis of like products and non-discriminatory treatment of imported and domestic products is at the heart of fostering sustainability. CCH informs the interpretation of non-discrimination and related exceptions, in particular Article XX GATT. CCH supports the promotion of differential tariffs in the Harmonized System, based upon npr-PPMs. It supports the elimination and reduction of tariffs for sustainably produced products while imposing bound tariffs on conventional products produced on the basis of fossil fuels. CCH encourages countries to adopt split tariffs as an incentive to accelerate the energy transition. At the same time, CCH implies, in terms of cooperation, that revenue generated from split tariffs can and should be used to foster technology dissemination abroad and thus enable countries affected by such tariffs to adjust to sustainable production standards. Split tariffs therefore are justified if proceeds are reinvested in climate change mitigation or adaption measures. CCH thus will inform the qualification and assessment of the Carbon Border Adjustment Mechanism introduced by the European Union in 2023. CCH potentially informs the interpretation of all pertinent provisions in trade law, adding a duty to act in the area recognized as a common concern of humankind, which in turn may justify flanking measures to implement homework obligations in addressing the shared problem. The impact will be case specific.

Trade law, however, also restricts the potential to use counter-measures in response to failing duties to implement international obligations on climate change. Such measures are only compatible in response to nullification and impairment of benefits accrued, mainly due to violations of obligations occurred. Trade law thus imposes limitations on market access restrictions in response to violations of other agreements, in particular under the UNFCCC, Paris Agreement, Convention on Biological Diversity, or Convention on the Law of the Sea. With the demise of the Appellate Body and the current option of appealing panel reports into the void for the WTO membership (with the exception of MPIA members**), there is an increasing risk of using trade-related counter-measures in response to failures to act on climate change. There is a risk that climate policies are increasingly unilateral, ignoring trade rules. In return, this is an incentive to engage in policymaking in international fora and to develop new disciplines under the heading of CCH in multilateral, plurilateral, and bilateral agreements.

Guiding Trade Policy Negotiations

The emerging principle of CCH offers guidance in shaping trade policy and in identifying areas of necessary cooperation. Unilateral climate policies affecting international trade can take recourse to CCH and trigger efforts at international cooperation in return. CCH can be invoked jointly, as a foundation of cooperation, of obligations to act and to secure compliance. It provides an incentive to negotiate common npr-PPMs, labelling, and certification schemes in public and private standards alike. The potential of CCH defined as a common problem requiring cooperation, as discussed, goes beyond environmental issues and potentially informs other trade-related policy areas such as global migration, human and labour rights, finance, monetary affairs, and indeed the trading system and trade cooperation in itself. Currently, as CCH is recognized in climate change, biodiversity, and cultural diversity, the scope of application is essentially limited to these areas and may offer guidance in trade negotiations. CCH induces a shift from reciprocity to closer cooperation in addressing a particular shared problem. CCH considerations should be used in all fora— multilateral, plurilateral, and bilateral—and also inform unilateral, national trade and investment policies.

CCH helps identify problems and challenges, the solution of which depends upon concerted action and the creation of appropriate incentives to address the common problem effectively. In the field of trade regulation, this essentially implies the definition of rights and obligations. CCH implies that efforts made—wherever they take place—are of mutual benefit and all nations and humans immediately benefit. This contrasts with areas outside of CCH, which essentially follow the logic of coexistence, national interests, competitiveness, and beggar-thy-neighbour policies, but not extensive cooperation or integration, and foremost an obligation to act under CCH, which otherwise is absent in international law.

The emerging principle of CCH can be invoked to define a trade policy agenda based upon mutual cooperation and mutual benefit, in particular in areas relating to climate change, the preservation of biodiversity, and food security. Inter alia, the following ideas and suggestions may be contemplated, linking CCH and trade regulation:

1. CCH and freedom of information: Common concerns of humankind inherently are of common interest, and information relating to them should be freely circulating. Freedom of information should be contemplated not merely to secure transparent markets, but to support education on the common concern of humankind at hand, for example climate change. The duty to act depends upon full and prompt information and education.
2. Framing the law of npr-PPMs addressing common concerns of humankind: Increasing unilateral recourse to npr-PPMs calls for additional disciplines framing the scope of such measures and linking them to beneficial incentives for exporting countries to adjust standards of production. This also includes new disciplines in tax and tariff law, and duties to act upon it. Revenues obtained in the field of CCH should be earmarked and used to foster efforts addressing the common concern of humankind concerned in exporting countries. Domestic taxes and tariffs in the field of CCH amount to incentives, and no longer qualify as fiscal revenues. They should be channelled back in order to address carbon storage, plastic pollution, and the like. Taxes and tariffs are simple tools and may replace an increasing number of non-tariff barriers to trade.
3. Linking trade to production standards addressing common concerns of humankind: CCH calls for the formulation of common product-related and non-product-related production standards (PPMs) in appropriate international fora, and to linking them up with the Agreement on Technical Barriers to Trade, the Agreement on the Application of Sanitary and Phytosanitary Measures, and the Agreement on Government Procurement. These agreements would entail a duty to implement such standards and act upon them.
4. Reframing disciplines on subsidies addressing common concerns of humankind: Subsidies for industrial policies addressing common concerns of humankind call for new disciplines, including on export subsidies, in the field of goods and services. Existing disciplines are partly outdated and do not respond to CCH. Fuel subsidies are an example in point. Reduction of subsidies must be compensated by appropriate tools addressing CCH-compatible goals of sustainable development. In the field of services, no disciplines on subsidies exist. They should be considered under CCH.
5. Disciplines on agricultural trade relating to common concerns of humankind: CCH informs new designs fostering diversification of sources with a view to addressing crop failures and food shortages induced by climate change. Food sovereignty should be reviewed in terms of CCH, in particular climate change and biodiversity. New disciplines on trade in meat production and meat consumption and other products contributing to global warming will be supported by CCH.
6. Dissemination of sustainable technologies addressing common concerns of humankind: New disciplines on export credits and tax breaks for the dissemination of intellectual property by means of voluntary licensing to developing countries, which is to the benefit of all, also entails a reform of the Agreement on Subsidies and Countervailing Measures.
7. Intellectual property and common concerns of humankind: New disciplines on intellectual property should be elaborated to frame public-private partnerships among government, the private sector, and non-governmental organizations working in the field of common concern. The law of patent pools and access, fair use, free and cross licensing for publicly funded technology, and recourse to models of compensation (liability rules) in intellectual property rights should be developed within the Agreement on Trade-Related Aspects of Intellectual Property Rights. Appropriate rules on competition need to flank these disciplines. They may be negotiated within the WTO, establishing an appropriate balance between intellectual property rights and competition.
8. The energy transition and common concerns of humankind: Essential for climate change mitigation, the energy transition calls for enhanced efforts to link international grids for sustainably produced electricity and hydrogen and biogas. New disciplines on interconnectivity also address the world wide web, allowing the operation of smart grids transnationally.
9. Concessions in services relating to common concerns of humankind: The definition of a particular common concern of humankind induces the examination as to which services need be available transnationally to commonly address the shared problem at hand. This in particular is relevant to engineering, transmission, education, and financial services in climate change.
10. Foreign direct investment and common concerns of humankind: Favourable conditions for foreign direct investment, investment protection, and a framework for joint ventures in the field relating to CCH should be designed beyond existing rules on investment promotion.
11. National Security and common concerns of humankind: Recourse to national security and unilateral policies is subject to enhanced disciplines in areas subject to CCH, defining obligations to cooperate and to act. CCH essentially allows to identify technologies and dual-use goods which should be open for trade and cannot be restricted for the purpose of national security. This also applies to the technology of integrated circuits essential both to common concerns of humankind and national security.
12. Dispute Settlement and common concerns of humankind: Common concerns of humankind do not induce particular features relating to CCH, except for extending third party rights. As discussed, CCH informs the interpretation and application of trade rules, and secures that economic sanctions in addressing a failure to address a common concern and to act upon it remain confined and do not result in excessive unilateral sanctions. CCH, however, could justify that all WTO members are entitled to take counter-measures following approval by the dispute settlement body. This option, building upon jus cogens, would greatly enhance voluntary compliance at home with the judicial findings of panels and on appeal.

Trade policy, based upon sovereignty and reciprocity, is a form of international cooperation largely defined by distinct national interests in terms of market access and protection of own markets and producers. Once a particular area is recognized to amount to a common concern of humankind—as of today climate change, biodiversity, and cultural diversity— cooperation is enhanced under CCH as all share a common interest in resolving a problem which only can be addressed and solved jointly by common efforts. There is a common and shared goal, and measures taken are of mutual interest.

Trade law partly allows for enhanced cooperation, in particular in plurilateral and bilateral agreements, up to full integration such as the European Union. The multilateral system of the WTO has not taken up CCH. Its potential so far has not informed the application of the law and dispute settlement, nor an agenda for reform. Identifying internationally recognized common concerns of humankind offers guidance in defining areas where closer cooperation is necessary to solve a problem, and where traditional reciprocity and unilateralism, or even mere coexistence, continues to control international relations. Common concerns of humankind are recognized in a process of claims and responses. They do not trigger a particular legal regime beyond enhanced cooperation, duties to act, and of compliance. These elements can inform treaty interpretation and trade policymaking in areas subject to agreed areas of common concern.

The emerging principle of CCH offers directions and a compass. It depends upon the willingness of states and the creativity of negotiators and international lawyers to effectively address and solve the shared problem at hand.

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* For a comprehensive scholarly discussion of CCH, see Thomas Cottier (ed.), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press, 2021). The book covers foundations and potential applications in the field of dissemination of sustainable technologies, plastic pollution of the seas, wealth distribution, economic sanctions for human rights enforcement, migration, and monetary and financial stability.

** The Multi-Party Interim Appeal Arbitration Arrangement was introduced in 2020 and currently entails, as a plurilateral agreement, a third of the WTO membership. It is based upon the arbitration clause of Article 25 of the DSU and also open in analogy to ad hoc uses by non-members, entering into an arbitration agreement prior to, or during, panel proceedings. The agreement allows both parties to appeal the panel report. Importantly, ensuing arbitration reports are subject to enforcement and compliance under the DSU and form part of WTO jurisprudence.

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Thomas Cottier is Emeritus Professor of European and International Economic Law, Senior Research Fellow, World Trade Institute, University of Bern, Switzerland, and member of the MPIA pool of appeal arbitrators at the WTO.

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Synergies by TESS is a blog dedicated to promoting inclusive policy dialogue at the intersection of trade, environment, and sustainable development, drawing on perspectives from a range of experts from around the globe. The editor is Fabrice Lehmann.

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