| The introduction part explains the significance, academic history and research methods of this dissertation. If China’s exports are levied carbon tariff by developed countries, there will be a significant impact on our economy. Analyzing the legitimacy of carbon tariff under international law and putting forward our countermeasure strategies are of great theoretical and practical significance.Chapter 1 illustrates the legal nature of carbon tariff. Since the emergence of the term "carbon tariff" is a fait accompli and has been generally accepted, so what is important is not whether the expression of carbon tariff is correct, but to make an accurate definition of the legal nature of carbon tariff. This dissertation argues that carbon tariff refers to carbon-based import border adjustment measures, which requires importers which import goods from the countries not implementing greenhouse gas reduction measures to pay tax or purchase emission allowances. Under this definition, carbon tariff has the following characteristics: First, carbon tariff is a border adjustment measure taken by the countries implementing greenhouse gas reduction measures on imports from countries not implementing greenhouse gas reduction measures; Second, when the importing country’s carbon reduction system is carbon tax, carbon tariff takes the form of tax, when the importing country’s carbon reduction system is cap and trade system, carbon tariff takes the form of allowances; Third, all carbon-based taxes and fees borne by the importer can be referred to as carbon tariff, regardless of the form.In Chapter 2, the United States legal system of carbon tariff was introduced. American Clean Energy and Security Act of 2009 and proposals before it all take "International Reserve Allowance" as the form of carbon tariff. Clean Energy Jobs and American Power Act only requires the adoption of border measures, but does not specify the type of border measures. It is foreseeable that the United States may take the International Reserve Allowance as the form of carbon tariff in the future. American-style "carbon tariff" provisions are of the following characteristics: (1) they clearly point out that the implementation of a "carbon tariff" is to prevent "carbon leakage", i.e. to prevent any substantial increase in greenhouse gas emissions by industrial entities located in other countries as the production cost in the United States increases due to the implementation of this Act resulting from the implementation of this Act; (2) they require carbon tariff be designed and implemented in a manner consistent with applicable international agreements to which the United States is a party; (3) if certain conditions are met, the US carbon tariff will apply to imports on January 1, 2020; (4) carbon tariff does not apply to least developed countries, any foreign country that responsible for less than 0.5 percent of total global greenhouse gas emissions and less than 5 percent of United States imports of covered goods with respect to the eligible industrial sector. Developing countries do not automatically enjoy the exemption; (5) the corresponding domestic system of carbon tariff is the emissions trading system; (6) carbon tariff should be roughly the same as the price of domestic emissions allowances. EU carbon tariff was proposed earlier than the United States, and mainly because of U.S. withdrawal from the Kyoto Protocol. In January 2008, the European Commission released a Proposal for a Directive amending Directive 2003/87/EC to improve and extend the greenhouse gas emission allowance trading system of the Community. This was the first Directive draft explicitly taking into account concerns about carbon leakage stemming from the operation of the ETS. The Prefatory Note discusses the possibility of creating a WTO-compliant system which requires importers to acquire and surrender allowances on terms no less favorable to institutions within the EU. Since EU member states still holds different views on the implementation of carbon tariff, the time when the EU carbon tariff will be implemented is still unknown.Chapter 3 analyzes the legitimacy of carbon tariff from the perspective of WTO rules. Article 2.2 (a) of GATT 1994 provides a border adjustment tax, the carbon tariff is likely to be expressed as a import-related border adjustment tax concerning carbon emissions. As long as carbon tariff is imposed consistent with the principle of national treatment and the principle of most-favoured-nation treatment, it is consistent with WTO rules. Even if carbon tariff is not consistent with the principle of national treatment or the principle of most-favoured-nation treatment, it may be also legitimate under Article XX of GATT 1994. As measures to address climate change are to protect humanity from the negative effects of climate change, it is consistent with Article XX(b) of GATT 1994; Furthermore, as it not only protects the global atmosphere but also prevents some plants and animals from extinction due to climate change, it is also consistent with Article XX(g) of GATT 1994. In order to determine whether carbon tariff is in line with Article XX(b) or (g) of the GATT 1994, we still need to analyze whether the carbon tariff is applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade. If the answer is negative, the carbon tariff is legal under WTO rules. There may be arbitrary or unjustifiable discriminations in the implementation of carbon tariff, but it doesn’t necessarily mean that carbon tariff as such involves arbitrary or unjustifiable discrimination.Chapter 4 analyzes the legitimacy of carbon tariff in the perspective from international law of climate change. After analysis, this dissertation argues that collecting carbon tariff is a matter of sovereignty. If one wants to argue that it is not legitimate for a country to take carbon tariff measure, the argument must be supported by the international law. Therefore, carbon tariff itself does not violate the UNFCC, but it shall not be a means of arbitrary or unjustifiable discrimination in international trade or a disguised restriction,nor shall it be implemented on the imports of developing countries.Chapter 5 analyzes the problems of international coordination of carbon tariff. Based on the principle of common but differentiated responsibilities, the developing country parties of UNFCC can claim that other parties implementing carbon tariff are illegal. As UNFCC has not an effective mechanism for dispute settlement, the best platform for carbon tariff dispute settlement is the WTO dispute settlement procedures. But in the WTO dispute settlement procedures, it’s difficult for developing countries to prove that other countries’carbon tariff measures are violating WTO rules. If the panel or the Appellate Body can apply the clauses of UNFCC in WTO dispute settlement procedures, developing countries’probability of winning will be greatly increased. Whether the WTO dispute settlement procedures can apply rules outside the WTO is still controversial both in theory and practice.Chapter 6 proposes China’s response strategy to carbon tariff. Many of China’s exports are energy-consuming products, so China’s exports will lose competitiveness and consequently decrease seriously if developed countries impose carbon tariff on Chinese exports. Therefore, at the international level, China should adhere to the principle of common but differentiated responsibilities of the UNFCC, as well as the principle of free trade and the MFN. In addition, China should actively participate in making international economic rules and protect its legitimate rights and interests. Domestically, we should accelerate the development of new energy and new materials industries, speed up economic restructuring as well as industrial restructuring, transformation and upgrading, quicken the pace of energy conservation and emissions reduction, and guide enterprises to strengthen their awareness of green production and upgrade their technology in energy conservation and emissions reduction. Nevertheless, it is unnecessary for us to introduce the carbon tax regime to counter other countries’carbon tariff, for other countries’carbon tariff proposals are based on their domestic carbon emissions trading system. As long as China takes a comparable carbon emissions reduction system, other countries will not be able to impose carbon tariff on Chinese products. Hence, all we need to do is implement either carbon emissions trading scheme or a carbon tax system according to China’s national conditions. Furthermore, we can also carry forward the export carbon tariff and carbon tariff to deal with foreign countries’carbon tariff.In the Conclusion part, the paper points out again that carbon tariff itself does not necessarily violate the international law. As a matter of fact, if it is designed and implemented in line with certain conditions, it’s likely to adhere to the international law. However, it is otherwise if being targeted towards developing countries. |
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