GoJIL Vol. 6, No. 1 (2014)
The Interaction Between WTO Law and the Principle of Common but Differentiated Responsibilities in the Case of Climate-Related Border Tax Adjustments
Pananya Larbprasertporn
Abstract
The proposal of carbon-related border tax adjustments (BTAs) has raised a strong objection among the targeted States, mostly developing countries. The BTAs are claimed not only to violate the law of the World Trade Organization (WTO), but also to conflict with the principle of ‘common but differentiated responsibilities’ (CDR principle) enshrined in the United Nations Framework Convention on Climate Change. This study attempts to determine the extent to which the CDR principle could color WTO legal disputes concerning the climate-related BTAs. Here, WTO law is analyzed as a multi-objective legal system, pursuing to promote, inter alia, free trade and environmental protection while respecting the special concerns of less developed countries via the Special and Differential treatment (S&D). In this context, relevant WTO provisions to the climate-related BTAs are interpreted. This article concludes that the S&D bears no legal obligation and the non-discrimination principle tenaciously reigns within the WTO legal system. The CDR principle could therefore have a very limited impact on WTO law, even in the chapeau of Article XX of the General Agreement on Tariffs and Trade leaving the fairness of international climate change law vulnerable within the WTO legal system.
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