June 2009 , the U.S. House of Representatives passed " 2009 American Clean Energy and Security Act," carbon tariffs thrown unilateral measures program , caused an uproar in the international arena . This means that the United States has deliberately put aside the " United Nations Framework Convention on Climate Change ," the multilateral bondage , forced to implement its climate change solutions. Meanwhile, after the success of the Copenhagen conference did not get , Center for European Policy Studies think-tank organizations have also lobbied the EU impose carbon tariffs. The United States and Europe "carbon tariff" seems imminent . Precision Casting Hardware Factory
2009年六月，美国议会众议会经过《2009年美国保洁能量物质与安全法案》，抛出碳关税的单边处理办法方案，在国际上引动轩然大波。这意味着，美国已有意抛开《联手国气候学变动框架公约》的多边约束限制，强制进行推行其气候学变动解决方案。
However, so far , what is the "carbon tariff" , how to levy a "carbon tariff " and " carbon tariff" whether the existing international rules ( in particular WTO rules ) match and other issues , governments , academics, etc. uncompromising . In the detailed study of "carbon tariff" on the basis of its policy considerations , combined with the WTO dispute settlement practice , a comprehensive analysis of carbon tariffs on their consistency with WTO rules , will help coordinate future multilateral framework on climate policy and trade policy .
A carbon tariff and policy considerations
不过到现在截止，啥子是“碳关税”，怎么样征收“碳关税”，以及“碳关税”是否与现存的国际规则(尤其是WTO规则)一致等问题，各国政府、学者等均各执一词。在周密考察“碳关税”及其政策考虑的基础上，接合WTO争执解决实践，各个方面剖析碳关税与WTO规则的一致性，将有助于协调未来多边框架下的气候学政策与商业活动政策。
Although they are called carbon tariff " tariff" , but not in international economic cooperation in 2010 the first three must be in the traditional sense of duty , but also may be domestic taxes and fees, quotas , licenses and so on. Essentially, carbon tariffs for balanced national abatement cost , imported products in specific countries to take unilateral trade restrictive measures. Impose carbon tariffs on the basis of the production of goods may be specific amount of carbon dioxide emitted during , or it may be producing countries total carbon dioxide emissions or to make efforts to reduce emissions .
碳关税虽名为“关税”，但不国际经济合作2010年第3期一定是传统意义上的关税，还有可能是国内税费、配额、允许证等。实质而言，碳关税是为平衡各国减排成本，对特别指定国度进口产品采取的单边商业活动限止处理办法。
At the United Nations climate change negotiations , carbon tariffs often called the " border carbon adjustment " or " border tax adjustment ." June 2009 , the World Trade Organization (WTO) and the United Nations Environment Programme (UNEP) jointly issued the " Trade and Climate Change" report , the border adjustment measures can be pided into three categories : First, the emissions trading system for border adjustments, such as requires importers of energy -intensive products imported to provide emission permits ; second is for the domestic carbon taxes or energy taxes border adjustments, namely levied on imported products bear the tax burden of similar domestic products or products in the country has imposed export refund domestic taxes ; three other adjustment measures , such as the fact that the government does not constitute or hidden subsidies as grounds for failure to adopt national climate measures on imports imposed anti-dumping duties or countervailing duties to offset the costs of mitigation .
Competitiveness and carbon leakage and political and economic considerations are a major carbon tariff policy considerations . Greenhouse gases that cause climate change embedded in almost all manufacturing products, carbon taxes , emissions trading system and other measures to reduce emissions may increase production costs . Europe and the United States worried that unilateral emission reduction measures for their energy and carbon -intensive industries in the international competition at a disadvantage. Through the abatement costs are not internalized impose carbon tariffs on imported products , imported products and to maintain a balanced competition between domestic products to protect domestic industry 's global competitiveness.
"Carbon leakage " refers to the implementation of climate measures leaving the marginal cost of production in the country increased domestic production to overseas , resulting in emissions of industrial entities in other countries increased significantly . Based pollution haven assumed that environmental legislation weaker countries in international trade will gradually shift polluting industries. Europe and the United States worry that the countries have not yet implemented emission reduction measures generally the case , the first implementation of emission reduction will result in carbon-intensive and energy -intensive industries re-location , shift production to lower emissions legislation and standards in countries of total global emissions not reduced and may even increase .
Finally, carbon tariffs have become an international political and economic issues , political or carbon climate politics over the meaning of the significance of carbon emissions . In recent years , the developed countries manufacturing gradual decline in international competition , domestic interest groups worry that conservation efforts in developing countries due to weaker manufacturing and re- opportunities, strongly promote carbon tariffs. Strategy in the negotiations , the United States , France and other attempts to push through a strong carbon tariffs and seize the future climate negotiations dominance , forcing large developing countries to make major concessions , or the same level of developed countries to take similar measures to reduce emissions .
Second, the carbon tariff rules conformance with WT0
Carbon tariffs in line with the WTO Agreement relates mainly to " the General Agreement on Tariffs and Trade " (GATT 1994) Article 1 , Section 2 , Article 3 and Article 11 , and if any of the above carbon tariffs violate WTO rules , compliance with outside the provisions of GATT Article 20 cases , to obtain an exemption.
( A ) the nature of carbon tariffs : border measures or whether domestic measures
Examine whether carbon tariffs consistent with WTO rules the primary problem is that carbon tariffs are border measures , or domestic measures ? If border measures , applicable GATT Article 2 " Schedule " and Section 11 "universal elimination of quantitative restrictions " ; if domestic measures applicable GATT Article 3 " internal tax and national legislation national treatment ."
Generally, the tax is a country to achieve its functions , by virtue of political power , according to units and inpiduals involved in the distribution of wealth , compulsory , free access to a form of revenue , with the gratuitous sex , both mandatory and fixity characteristics. If carbon tariffs have " tax" feature , so that domestic taxes , or tariffs ? Whether levied at the border , not to judge the tariffs , or the only standard domestic taxes .
GATT Article 2 , Section 3 allows WTO members to carry out border on the domestic tax adjustments to be sold to the ultimate consumer of imported products and the like domestic products importing countries tax balance. Europe and the United States claims that its carbon tariffs not intended for importers bear the additional burden , but to make domestic and foreign manufacturers bear the same abatement costs . In other words , for the goods production process emissions of carbon dioxide, foreign manufacturers and domestic manufacturers should pay the same fees. In this sense , at the border impose carbon tariffs, may also constitute a border adjustments for internal taxes , resulting in GATT Article 3 applies .
However , GATT Article 2.2 defines a border tax adjustment , provides that " Nothing in this section shall prevent any Party of any product at any time impose import duties or fees the following : (a) For respect of similar domestic products or used in the manufacture or production of imports of all or part of the product imposed , with the first 3 , paragraph 2, consistent with the provisions and equal to the cost of domestic taxes ; ...... . " accordingly, if the fees charged on imports of similar domestic products is not equal domestic taxes levied on carbon tariffs is not part of the domestic tax adjustments at the border , but the tariffs applicable to GATT Article 2 .
Finally should be noted that , GATT Article l of " universal MFN " applies both to domestic measures also apply to border measures. Regardless of their nature belong to which category , carbon tariffs should abide by GATT Article 1 .
( Two ) of carbon tariffs and GATT Article 2 , Section 11 of Conformance
Based on GATT Article 2 , a member of the general levy on imports tariff schedules that member shall not exceed prescribed tariff levels . When the carbon tariffs constitute a special tariff , once the tariffs on certain products over schedules specified level, it constitutes GATT Article 2 direct violation .
In the U.S. climate bill , for example, to reduce greenhouse gas emissions , the bill proposed to implement the overall limit trading system, and provides for the amount of international reserves discharge plan . Act No. 767 ~ 768 provides that if as of January 1, 2018 , in line with the U.S. negotiating objectives of the multilateral agreements the United States has yet to take effect , the president respond to the selected industrial sectors in emissions plan the development of international reserves . Importer in the U.S. market before the plan applies , the United States must first purchase emissions permits international reserves , equivalent to the domestic price of the auction clearing price of emission permits , the number of licenses required by the executive authorities and the U.S. Customs and Border Protection consultation is to determine the calculation method . In terms of future U.S. emissions permits may announce pricing implementation details , calculated after fees charged on imports of similar domestic products with Internal Taxes are different, the most likely by tariff treatment. If a particular product would be levied on common tariffs and carbon tariffs and more than schedules specified levels , would violate GATT Article 2 . It should be noted that, a view that exporting country lacks similar measures to reduce emissions , the equivalent of the manufacturer provides a subsidy to take countermeasures . GATT Article 2.2 expressly provides that does not prevent members of the WTO Agreement on the way to meet the anti-dumping duties or countervailing duties. However, not in the economic theory belongs subsidies may distort trade in all government intervention , all belong to the scope of WTO adjustment . Carbon abatement cost internalization in varying degrees, does affect the production costs, but the Uruguay Round negotiations case history and U.S. export restrictions and other WTO Dispute Settlement Practice has repeatedly proved that not all the benefits granted to government measures constitute subsidies. WTO " Agreement on Subsidies and Countervailing Measures " on page 1 will be defined as a government subsidy or public agencies to provide financial assistance , and financial assistance in the form of doing exhaustive enumeration , including funds directly or potential direct transfer , abandon taxation, government provision of goods or services, government payments to a funding mechanism , and entrusts or directs private sector subsidies. Lack of hard carbon emission reduction measures have been identified as constituting any of the above financial assistance . In terms of exporting country lacks the same level of emission reduction measures by imposing countervailing duties would violate GATT Article 6 and the " Agreement on Subsidies and Countervailing Measures ," and not under GATT Article 2.2 exempted.
In addition, when the adoption of carbon tariffs quotas, licenses or other border measures, would also violate GATT Article 11 concerning general elimination of quantitative restrictions which stipulates that "any Party the territory of any other Party shall not import products ...... establishment or maintained in addition to tariffs, taxes or other charges outside the prohibition or restriction , whether such prohibitions or restrictions through quotas , import and export licenses or other measures have been implemented . "
( Three ) of carbon tariffs and GATT Article 1 , Section 3 of Conformance
First, when a member of the imposition of carbon tariffs on domestic border tax adjustments, must comply with GATT national treatment provisions of Article 3 . The relevant provisions of Article 3 can be summarized as the following two points: First, when the imported products and domestic products are like products, levied on imported goods shall not exceed domestic taxes levied on domestic products domestic taxes ; Second, when imports products and domestic products are directly competitive or alternative products, not that the purpose of protection of domestic production of domestic taxes levied .
For the " similar products " of that , WTO dispute settlement practice has formed a relatively stable principle. Asbestos in the EC case, the Appellate Body concluded that the competitive relationship between the products is to determine " similar products " basis , taking into account four factors, namely, the product's physical characteristics , end-uses , consumer preferences and tariff classification . For climate measures , WTO and UNEP joint research reports writings suggested that the standard key point is that the physical characteristics of the final product in the same circumstances, whether based on their production processes and production methods, but we shall not constitute a different " kind products . " Carbon tariff policy is based on the cost of measures to solve the climate as countries differ as a result of competition among enterprises imbalance. If according to the production process and production methods are different, deny these enterprises produced products are " similar products ", the equivalent rejected the basis for the existence of carbon tariffs .
For imported products and the like domestic product comparison treatment , Article 3.2 stipulates that domestic products and imported products subject to internal taxes levied completely equal. This requires domestic products and imported products to develop a detailed calculation of emission standards and emission reduction costs. International trade of products vary widely, carbon emissions similar products vary widely . To develop specific products for each one carbon emission standards and costing is unrealistic, can only take one average standard , such as from a certain category of countries impose carbon tariffs. This can easily lead to differences in treatment of specific products , in violation of GATT Article 3.2 .
According to the WTO dispute settlement practice , directly competitive or substitute products identified a wide range of similar products , including physical characteristics although not identical , but with the end use and are perceived by consumers as similar products. Even if carbon emissions standards and costing differences on grounds of denial of imported products and domestic products is a similar product , the presence of both direct competition or substitutes unquestionable . Suitable carbon tariffs tend to be concentrated in trade with a high concentration of industry category , obviously designed to protect domestic production. This will also result in a breach GATT Article 3.2 .
Compared with GATT Article 3 , GATT Article a "universal MFN " touch the core of carbon tariffs , carbon tariffs proved to be the most difficult to match it . According to the first one , given by any Party or any product destined for any other country 's interests , benefits , privileges or immunities shall immediately and unconditionally to all the other Parties from or destined for the territory of similar products. General MFN applies not only to domestic taxes , also applies to border measures such as tariffs . About the treatment of products from different countries to the U.S. climate bill , for example, a carbon tariff provisions ( Act No. 766 ~ 768 ) is central to whether to participate in the exporting country in accordance with the United States is a Party emission reduction agreements , whether bears at least with the U.S. equivalent international emission reduction obligations , specific industrial sectors annual energy or GHG concentration levels of development , accounting for the proportion of global carbon emissions , as well as the proportion of exports of specific products such as standard , to determine whether to impose a particular country imports carbon tariffs , forcing other countries to participate in high-level climate negotiations or commitments to reduce emissions standards. Its direct and inevitable result is that different WTO members of similar products imported into the United States in the different treatment , in direct violation of GATT Article 1 .
Third, carbon tariffs can, under GATT Article 20 " General Exceptions " exemption
Once proven carbon tariffs violate any of the above , can constitute a violation of WTO rules , unless successfully invoked GATT Article 20 " General Exceptions " as a defense. Enumerated in section 20 of the exceptions , is associated with climate measures subparagraph (b) " necessary to protect human , animal or plant life or health of the necessary measures" , and (g) " and the conservation of exhaustible measures related to natural resources if such measures with restrictions on domestic production or consumption with the implementation . " According wro dispute settlement practice , advocates GATT Article 20 cases outside the party , such as the United States, in turn proved to be carbon tariffs ( a ) comply with (b) or (g), and ; ( 2 ) satisfy the requirements of Article 20 of the preamble , namely " between countries where the same conditions does not constitute a means of arbitrary or unjustifiable discrimination or constitute a disguised restriction on international trade ."
( A ) meets the carbon tariff GATT Article 20 (b), (g) Item condition
American Standard gasoline Case Clean Air Group's report has confirmed that the natural resources are exhausted . On this basis , whether carbon tariffs (b) or (g), the key is whether to protect human, animal or plant life or health "necessary" , or the conservation of exhaustible natural resources " on" .
In the WTO dispute settlement practice, the "necessary" after the word many cases the interpretation and correction . In a recent case in which the Brazilian retreaded tires , the Appellate Body concluded that in determining whether a measure is "necessary" , we must consider a number of relevant factors, in particular the importance of the interests or values , measures the contribution to achieve policy objectives and restrictions on trade . If the preliminary conclusion is yes , then you must be the measure trade restrictions that may exist with a smaller , but equally contribute to achieving goals of alternative measures to compare before you make the final decision. For (g), "and the ...... about " in the case of the Canadian salmon , American Standard gasoline case and the U.S. shrimp and shrimp products case, the panel and Appellate Body reports to clarify that if a trade measures of the " main purpose " is to protect exhaustible natural resources , they constitute (g), the meaning of " protection of natural resources " ; judgment " primary purpose " standard is the measure with the conservation of exhaustible natural resources between the existence of a "substantial connection" . And if it is determined whether there is "substantial connection" , we must review the measures involved in the basic structure and design of its policy objectives pursued closely exists between means and ends and the real relationship .
In the U.S. climate bill , for example, first of all, it is difficult to meet the carbon tariffs subparagraph (b) "necessary" term requirements. While climate change is very important, but so far there is no authoritative research results prove the seriousness of carbon leakage . In contrast, the role of carbon tariff trade restrictions is significant . U.S. President Barack Obama also said there should be " In addition to tariffs than other methods " to ensure fair international competitive environment. Secondly, subparagraph (g) , although on the surface of carbon tariffs and carbon emissions and climate change related provisions of the Act , but the basic structure and content of the show , the fundamental policy objective is to protect vulnerable domestic trade effects of energy and carbon intensive industries , competitiveness is the primary consideration. Section 768 (a) (2) shall literally stressed carbon tariffs aim is to minimize carbon leakage , but did not require any carbon leakage sectors written report or require any measure , between the lines is still concerned about the cost difference between national climate measures competition resulting imbalance . Trade is to determine the concentration of carbon tariffs on industrial application of the eligibility criteria , evaluation and implementation of carbon tariffs and production costs change are intrinsically linked , but you find no association carbon leakage . Through the above factors , it is difficult to say with carbon tariffs to prevent carbon leakage, there is a close between climate change and the real means and ends relationship with natural resources constitute "relevant " measures.
( Two ) carbon tariff meets the conditions of Article 20 of the preamble
Article 20 of the preamble to prevent abuse exception. Even if carbon tariffs comply with (b) or (g) above , to obtain exemption must prove that the implementation of carbon tariffs subject to section 20 preamble, that is, not between countries where the same conditions constitute a means of arbitrary or unjustifiable discrimination or constitute a disguised restriction on international trade .
Standard gasoline in the U.S. case , the U.S. shrimp and shrimp products case, the panel and Appellate Body ruled that if before seeking unilateral measures , not entirely well-intentioned efforts to conclude bilateral or multilateral agreements , or the lack of flexibility in the implementation of measures would constitute arbitrary or unjustifiable discrimination. With regard to international trade, " disguised restriction ", WTO dispute settlement practice in the formation of three criteria: first, whether the measures involved have been disclosed , if not openly , will be deemed to constitute a disguised restriction , but if already open , it is not inevitably do the opposite presumption ; two measures is based on the design, architecture and structure of the investigated whether the protective purpose of its implementation ; third is whether the implementation of measures constitute arbitrary or unjustifiable discrimination . As long as any of them constitute a carbon tariff could not be exempted under section 20 .
Carbon tariffs from around the realities and practical point of view , first of all, we all know, is currently in the UN climate change negotiations critical period. In the emission reduction targets , technology transfer, financial support, monitoring mechanisms and other key issues that countries are in exchange , consultation and adjustment stage of negotiating positions . Pursue unilateralism carbon tariffs , multilateral negotiations can only complicate the situation , but by no means the best " good faith effort" to conclude multilateral agreements . Secondly, the flexibility in emission reduction measures , the previous text U.S. climate bill impose carbon tariffs under the criteria , for example, is very limited and its exhaustive enumeration , indicating that China's own commitment to emission reduction targets and take all kinds of measures to reduce emissions will not be considered within the scope of the United States , lack of flexibility. Finally, whether the United States , or France and other EU countries , in pushing carbon tariffs , while not corresponding emphasis on carbon leakage measurement and evaluation. According to the U.S. climate bill , even if the President believes carbon leakage has been adequately mitigated by other means , or carbon tariffs on carbon leakage can not be resolved , and by the consent of both houses of Congress , have the right to abstain from doing carbon tariffs. This makes the Act No. 768 aims to reduce carbon tariffs on carbon leakage " purpose " statement lacks credibility . In other words , as long as the discovery of significant carbon leakage and impose carbon tariffs and the intrinsic link between the lack of direct , it is difficult to get rid of the suspects disguised restriction on international trade .
In summary, carbon tariffs to protect domestic industries competitive considerations than on the effectiveness of measures to reduce emissions of carbon leakage and other issues, does not meet the provisions of GATT Article 20 cases outside .
Fourth, multilateral framework to handle the problem of carbon tariffs Prospects
Climate bill in the U.S. House of Representatives passed the same time , WTO and UNEP released a joint report . In the border measures consistent with WTO rules , the overall conclusion is that under the rules of the WTO , there is still a single country border measures to address climate change space , unilateral measures themselves with WTO rules there is no inherent conflict between , depending on how these policies are designed and detailed implementation conditions . After the report was released , leading to dissatisfaction of developing countries , criticized its multilateral climate agreement have not been fulfilled in the case of an attempt to clarify the framework of the WTO ahead of climate change and the relationship between trade measures and untimely . After half a year later, in December 2009 the end of the Copenhagen conference , WTO Director-General Pascal Lamy 's statement quite profound meaning . He said: " During the Copenhagen conference , the issue raised border measures . WTO members between the parties , as in the Copenhagen United Nations Member States , as there are in disagreement on this issue , but I can say that, in the issue of climate change the more we develop in the direction towards a multilateral framework , unilateral trade measures harder to explain the problem . " for the United States , France, the unilateral nature of the carbon tariffs great action , this is a subtle but powerful response.
United Nations Climate Change Conference and the WTO to address the issue of carbon tariffs to provide a stable, credible multilateral places. Carbon emissions and carbon leakage is a climate policy areas . To really solve the problem of climate change, the world , the best and most thorough way is through the United Nations climate change negotiations multilateral agreements and multilateral agreements to exclude carbon tariffs . Climate Conference in Copenhagen , in China , India and other developing countries, efforts, " the Convention " Ad Hoc Working Group on Long-term Cooperative Action Report on carbon tariffs proposed three alternatives : First, a complete ban "carbon tariff . " Second, only requires Parties to "consider" " Convention " Article 3.5 of the Rules , namely, " to address climate change the approach , including unilateral measures on international trade should not constitute unfair or unreasonable discrimination , nor constitute a disguised restriction on ...... " did not impose any certain, mandatory obligations. Three are directly borrowed the " Convention " on page 3.5 . Of these, only the first scenario for China , India and other developing countries have practical significance. However, according to U.S. lawmakers ' attitudes and political forces , the United States is unlikely to accept an explicit prohibition of carbon tariffs multilateral agreements . From a pragmatic attitude , if the next two years to reach a multilateral climate agreement is likely to blur their speech carbon tariffs .
Once the carbon tariffs implemented, its conformance with the WTO rules inevitably be sued WTO dispute settlement panels and the Appellate Body , the core substance of the dispute under the rules of the WTO members to take measures to climate policy space . Actively participating in the multilateral climate negotiations , developing countries can take advantage of the various WTO mechanisms to resist carbon tariffs , maintain fair trading environment. Major initiatives include : participation in the WTO negotiations , to clarify climate measures and WTO multilateral trading system potential conflicts ; through the goods , trade in services the Council and its subsidiary bodies, the climate for trade-restrictive measures are consistent with WTO agreements daily supervision ; using trade policy review mechanism for consideration , the question of the specific implementation and climate measures the environmental impact of trade ; sufficient evidence in the carbon tariffs to the WTO dispute settlement mechanism, prompting other to give carbon tariffs , rebuilding a fair trade environment.