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Conclusion

Fostering Environmental Protection

Alice Pirlot

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Alice Pirlot

This timely book brings clarity to the debate on the new legal phenomenon of environmental border tax adjustments. It will help form a better understanding of the role and limits these taxes have on environmental policies in combating global environmental challenges, such as climate change.
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Alice Pirlot

In comparison to traditional BTAs, environmental BTAs have had a much more recent history. The analysis of political proposals in favour of environmental BTAs illustrates that they are based on theoretical foundations that differ slightly from traditional BTAs, namely Ricardo’s theory of comparative advantage and the theory of absolute advantage. Environmental BTAs’ political history also shows that some steps have already been taken in support of the development of the environmental dimension of BTAs (e.g. the US Superfund tax). This chapter first analyses the economic history of environmental BTAs (Section 1). Second, it discusses their political development (Section 2). Finally, this chapter offers an overview of environmental BTAs’ theoretical foundations (Section 3). Keywords: economic & political history; theoretical foundations; revised theory of comparative advantage; theory of legitimate absolute advantage; US Superfund tax

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History and theoretical foundations of traditional BTAs

Fostering Environmental Protection

Alice Pirlot

The history of BTAs has been largely unexplored by the literature. Nevertheless, the historical analysis of traditional BTAs may contribute to a better understanding of BTAs’ main purpose and WTO legal limits to their adoption. This chapter discusses the historical development of BTAs against the background of the removal of tariffs, from Ricardo’s economic theory on free trade to more recent views expressed at the political level since the mid-20th century. This chapter first analyses BTAs’ economic foundations (Section 1). Second, the political history of BTAs is discussed (Section 2). Finally, this chapter offers an overview of BTAs’ main theoretical foundations (Section 3). Keywords: economic & political history; theoretical foundation; Ricardo; theory of comparative advantage; theory of absolute advantage

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Legal framework of environmental BTAs

Fostering Environmental Protection

Alice Pirlot

This chapter concentrates on the legal framework surrounding environmental BTAs, drawing attention to the peculiarities of environmental taxes in comparison to traditional BTAs. The integration of environmental considerations into BTAs indeed raises additional legal questions, both within and beyond WTO law. This chapter first analyses the compatibility of environmental BTAs with the ‘traditional’ WTO law provisions surrounding BTAs (Section 1). Among other legal issues, this chapter highlights the controversial views surrounding the eligibility of taxes on process and production methods (PPMs) for BTAs. Second, it takes a broader perspective and discusses GATT Article XX and other non-WTO relevant legal provisions, including principles of international environmental and tax law (Section 2). Keywords: process and production methods (PPMs); GATT Article XX; extraterritoriality; common but differentiated responsibility (CBDR); tax sovereignty

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Legal framework of traditional BTAs

Fostering Environmental Protection

Alice Pirlot

This chapter first focuses on BTAs’ main legal grounds, from the general GATT provisions that form part of BTAs’ legal framework to WTO legal provisions that are specific to BTAs on imports and BTAs on exports (Section 1). The objective is to draw attention to the legal limits established by WTO law’s main provisions surrounding BTAs. Second, this chapter discusses these provisions from a substantive viewpoint, analysing the conditions and limits set up by WTO law on the adoption of BTAs (Section 2). Among other legal issues, this chapter discusses the relationship between GATT Article II:2(a) and GATT Article III:2, the impact of the National Treatment principle on the eligibility of taxes occultes for BTAs and the extent to which the ASCM limits the adoption of BTAs on exports. Keywords: GATT Article II :2(a); GATT Article III; ASCM; National Treatment principle; taxes occultes

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Tax design of environmental BTAs

Fostering Environmental Protection

Alice Pirlot

In contrast to traditional BTAs, there is no commonly agreed definition of environmental BTAs. Environmental BTAs are here defined by reference, and in comparison, to the essential features of traditional BTAs (Section 1). Moreover, environmental BTAs may be described by means of their tax design. Some models of environmental BTAs copy the structure of excise duties and VAT. Other models are inspired by policy measures that have been implemented or proposed in the US, the EU and Australia (Section 2). This chapter discusses traditional environmental excise duty models, models based on the US Superfund & ODC taxes, CO2 tax models, the models of the carbon-added tax and environmental VAT. Finally, all models of environmental BTAs are characterised by similar tax design issues as far as the valuation of the imported products is concerned, the risks of abuse and the allocation of the revenue derived from the tax (Section 3). Keywords: traditional environmental excise duty model; US Superfund & ODC taxes; CO2 tax models; carbon-added tax; environmental VAT

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Tax design of traditional BTAs

Fostering Environmental Protection

Alice Pirlot

This chapter highlights BTAs’ distinguishing features in comparison to other trade-related measures. As their name indicates, BTAs are border tax adjustments. Each concept (‘border’; ‘tax’; ‘adjustment’) informs the essence of BTAs (Section 1). Aside from this conceptual definition, countries’ practices also permit BTAs to be understood in terms of tax design, which is crucial for the development of environmental BTAs. Traditional models of BTAs include EU VAT and excise duties systems as well as US sales taxes (Section 2). Keywords: VAT; excise duties; retail sales taxes; GATT 1968 Report; OECD 1970 Report

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Daria Davitti

This chapter takes Afghanistan as an emblematic example of countries in the throes of armed conflict, in which both human rights and investment have a crucial role to play for the sustainable development of the country. In so doing, it considers the practical dimension of the relationship between investment and human rights within a conflict context. It discusses the protection of the right to water in Afghanistan within the context of the country’s booming extractive sector, in order to outline how conflict areas represent a worst-case scenario for the practical implementation of both investment and human rights protection. In order to identify ways to harness investment for sustainable development, the chapter considers the relevance of the United Nations (UN) Framework and Guiding Principles for Business and Human Rights, and analyses specifically the home state’s duty to protect human rights, including the right to water, within the Afghan context. The argument advanced is that a different approach to investment protection is needed in Afghanistan, not least one which takes into full consideration the home state’s obligation to regulate its investors, so that they will find themselves unable to evade compliance with their responsibility to respect human rights, irrespective of where they carry out their activities. Key words: right to water; international investment law; economic, social and cultural rights; guiding principles for business and human rights; Afghanistan; extractive sector

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Juan Pablo Bohoslavsky, Liber Martin and Juan Justo

The human right to water and sanitation has captured primary attention since General Comment No. 15, issued in 2002 by the UN Committee on Economic, Social and Cultural Rights, interpreted Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights. Since then, much has been written on this human right, but very little on the existing linkage between it and private corporations providing public water and sanitation services, and even less on the bilateral investment treaties (BITs) implications of the state’s duty to protect this specific right. This chapter will study the BIT’s implications of the state’s duty to protect from business-related human rights violations in water and sanitation services, which raises questions such as: how should we interpret BITs that protect foreign companies providing water and sanitation in light of the state’s duty to protect from business-related human rights violations? How to reconcile the state’s BITs commitments with its obligations under human rights treaties in water and sanitation services? Do we need to reconcile them at all? The chapter concludes that arbitrators, when interpreting BITs, should consider the human rights fibre of the regulation under scrutiny in order to verify its international legality. Keywords: bilateral investment treaties; corporate social responsibility; International Covenant on Economic, Social and Cultural Rights; human rights; right to water and sanitation