Carbon-related Border Adjustment and WTO Law

Carbon-related Border Adjustment and WTO Law

Kateryna Holzer

Carbon-Related Border Adjustment and WTO Law will be of great benefit to policymakers and practitioners working in the area of climate policy and trade regulation. Researchers and advanced students in international economic law and international environmental law will also find much to interest them in this work.

Chapter 7: Testing WTO compliance of various forms of carbon-related BAMs

Kateryna Holzer

Subjects: environment, environmental law, law - academic, environmental law, international economic law, trade law

Extract

Based on the WTO legal framework for border adjustment, which was discussed above, with its uncertainty about PPM measures and the conditions required for a measure to be justified under its environmental exceptions, this chapter tests the compliance of various possible designs of carbon-related BAMs with WTO law. As the WTO legal issues that stem from the PPM character of carbon-related BAMs were discussed in Chapter 5, this chapter only briefly summarizes these issues and then goes on to supplement the legal analysis with an examination of non-PPM-related issues pertinent to a specific type of carbon-related BAM. The examination of whether a carbon-related BAM is consistent with WTO law follows the traditional sequence. First, the relevance of a WTO-covered agreement to the measure under examination is determined. Second, whether a measure falls within the scope of an actual obligation under a covered agreement is analyzed. Third, the analysis of a violation or non-violation is only made once the coverage of a measure by a provision of an agreement has been affirmed (a measure must fall within the scope of an obligation in order to violate it). If a measure is found to be outside the scope of a provision, the test for WTO compliance will end at the second step. If a measure is found to fall within the scope of a provision and to violate the provision, a fourth step examines whether the violation could be justified by the general exceptions of Article XX.

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