| With the signing of international agreements such as Paris Agreement and the Kyoto Protocol,global warming and carbon emissions have gradually become the focus of attention of the international community.In order to abide by its obligations under international treaties,our country has taken the initiative to adopt some border measures to reduce carbon emissions.Such as import and export of carbon tariffs and other policies.However,although these policies are in conformity with the provisions of the international environmental treaty,can they comply with the provisions of the WTO? This article will treat the carbon tariff policy as a perspective to analyze its compliance under the WTO mechanism.The import carbon tariff policy involves GATT and TBT clauses: First,under the GATT,import carbon tariff violates Article 1.1 of the GATT(most favored nation treatment)and Article 3.4(national treatment),but can refer to GATT Article 20(g)'s exceptions;Secondly,under the TBT,import carbon tariff has been treated differently by products from different countries,which violates Article 2.1 of TBT and Article 2.2of TBT.It may also violate Article 5.1.1,Article 5.2.1 and Article 6.1 of the TBT because of the differences in testing technologies among countries and mutual recognition.The export carbon tariff is different from the import carbon tariff,and it does not directly violate the provisions of the WTO agreement.However,due to Chinesepromise in the "Protocol on Accession" that only export taxes are levied on specific products,China's export tax on other products may violate China's regulations in the "The commitment in the Protocol to the WTO,China did lose two lawsuits because of measures to adopt export tariffs before,but the author believes that in the face of new disputes,China should deny the effectiveness of the precedents and then put forward new proposals,including a certain degree of differential treatment.At the same time,it is recommended that the WTO panel members or the Appellate Body take into account the trend of fragmentation of international law and take into account the possibility of application of Article 20(d)of the GATT.Taking this as an entry point,we will demonstrate the legitimacy of China's export carbon tariffs.The total article consists of three chapters:The first chapter discusses the basic theory of carbon tariffs.The import carbon tariff is a kind of border tax adjustment measure,which is an internal tax adjustment method adopted for imported products.Its specific form of expression requires the import of products to pay a certain tax,or require importers to purchase quotas.The export carbon tariff,as opposed to the import carbon tariff,refers to the domestic tax adjustment method adopted for export products when the product is exported to a country that has undertaken emission reduction obligations or exports to countries with emission reduction obligations greater than its own.The specific method is for exporters to pay certain taxes or purchase export quotas when they export goods.The second chapter discusses the issue of import carbon tariff compliance under GATT and TBT.This section first analyzes whether there is compliance under the GATT:First,import carbon tariffs under the GATT tend to violate the provisions of Article 1.1 of the GATT,that is,violate the most-favored nation(MFN)treatment principle.The violation must meet the following conditions: First,the interested country grants preferential treatment to beneficiary countries,and the preferential treatment benefits the beneficiary country;Second,the benefit is not given to similar products of other member countries;Third,benefit do not come from favored nation.Because the basis for the import of carbon tariffs is the carbon dioxide emissionsfrom the production process.The products that produce different amounts of carbon dioxide emissions in the production process belong to the same type of products.Under such circumstances,different taxes and fees levied on different types of carbon dioxide emissions from similar products in different countries violate the principle of MFN treatment.Second,import carbon tariffs under the GATT tend to violate Article 3.4 of the GATT.There exists a question: Are the products with different carbon emissions(PPMs)in the production process constitute a "like product" ? In the dispute resolution practice of the WTO,both the Panel and the Appellate Body are cautious about PPMs.The Panel in “United States-Measures Concerning the Importation,Marketing and Sale of Tuna and Tuna Products” believes that tuna can't be differentiated according to different fishing methods;at the same time,the Panel in the “United States-Gasoline”also believes that it cannot be based on different characteristics of the manufacturer and it has different data to be treated differently.Afterwards,the Appellate Body further analyzed that health risks and market competition can help determine whether it is "like product".The Appellate body in this case did not simply exclude PPMs from products.Whether it is a reference factor of “similar products”,but in this case,the Appellate Body also pointed out that “market competition relationship” and“physics” in which the health risks can affect the judgment of similar products through market competition relations or physical attributes."Attributes",which can be seen,the Appellate Body has a very cautious attitude towards PPMs.Only when PPMs affect the above-mentioned similar products to distinguish the four elements will affect the classification of similar products.Therefore,products will not be identified as “non-similar products” because of the difference in carbon dioxide emissions in the production process.Under the carbon tariff policy,products are subject to different tariffs due to different carbon emissions,which violates the principle of national treatment.Third,whether the carbon tariff complies with Article 20 of the GATT.As for the Article 20(a)of the GATT.The purpose of the carbon tariff policy is to control carbon emissions and achieve environmental protection through trade means.However,there are certain differences between the purpose of environmental protection and public morality.For example," In the "United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services",the panel considered that gambling is a kind of public morality in consideration of the practice of various countries.However,so far,there is no precedent to link environmental protection with public morality.It is "moral,non-substantive law enforceable,and moral and moral restraint." Therefore,the literal explanation is that the link between carbon tariffs and public morality is not strong.GATT Article 20(a)The application of the money is difficult.This is followed by Article 20(b)of the GATT,which requires that the measure conforms to the necessary conditions.The Appellate Body analyzed the word “must”in the “United States-Measures Affecting the Cross-Border Supply of Gambling and Betting Services” and considered that judging whether a measure satisfies the necessary conditions should be analyzed in accordance with three elements.The first element is the degree of importance of the measure,the value it can generate,the second element is the extent to which the measure contributes to the practice of the final goal,and the third element is the restrictive competition of the measure degree.The Appellate Body in the case stated that if alternative measures exist,the measures involved will not be necessary.There are many alternative measures to reduce global carbon emissions in practice.For example,countries can agree on their own emission reduction obligations through consultation or designation of international environmental conventions.Therefore,it is difficult for carbon emission policies to comply with Article 20(b)of the GATT.In addition,Article 20(g)of the GATT,the Appellate Body stated in the “United States-Gasoline” that the measures that meet this paragraph must meet two conditions.The first condition is that the measure must be related to the protection of the available natural resources.The second condition is that the measure must be implemented together with domestic restrictions.Regarding the "domestic restriction measures",in the "United States-Import Prohibition of Certain Shrimp and Shrimp Products",the Appellate Body believes that the measures implemented by the UnitedStates for the importation of shrimp are also applicable to shrimp caught by the U.S.indigenous fishing vessels.Therefore,the U.S.measures are considered to meet this requirement.In implementing the carbon tariff policy,if China also adopts corresponding restrictive measures,it is not difficult to meet this requirement.It is also necessary to take into account the preambular part of Article 20 of the GATT that the Appellate Body stated in the “United States-Import Prohibition of Certain Shrimp and Shrimp Products” that the provision contained three elements.The first requirement was that the measure would lead to discrimination and the second requirement was the source of the measure.In the case of countries with the same situation,they have taken a differentiated approach.The third requirement is whether the measure constitutes arbitrary or unreasonable.In this case,the Appellate Body held that the United States' fishing for sea shrimp is in accordance with Article 20(g)of the GATT,but the United States requires the exporting country to adopt the same sea turtle protection policy as that of the United States and to install the isolator uniformly.This constitutes an unreasonable interference by other WTO members does not meet the requirements of the preface.In addition,the U.S.measures do not comply with the provisions of the external provisions of the GATT 20 th Regulation.Therefore,if the import carbon tariff policy is to meet the requirements of the foreword,it must be impartial in practice.It must also take into account the actual situation in other countries and impose carbon tariffs or quota measures on imported products on a non-discriminatory basis.This article further analyzes the compliance of import-carbon tariffs under the TBT.First of all,for the purpose of the carbon tariff policy,the purpose is to control the carbon dioxide emitted during the production of the product,that is,PPMs.As long as the policy is not auxiliary or advisory,it is mandatory and meets the above requirements.Therefore,it is TBT.Regulated.Second,regarding Article 2.1 of the TBT,the Appellate Body stated that to judge whether a measure complies with the provisions of Article 2.1 of the TBT,three elements must be considered.The first requirement is whether the measure constitutesa technical regulation.The second requirement is that the imported product is a "like product" with the product of one's own country or country,and the third requirement is that the imported product is treated less favorably than the product of the country or other countries.Therefore,if the implementation of the carbon tariff policy is to comply with regulations under the WTO mechanism,relevant market factors must be taken into account,but according to the analysis of Article 3.4 of the GATT above,it is difficult to realize tariffs based on the actual carbon emissions of other countries' products.The purpose is to form differential treatment for other countries' products and domestic products,change the competitive environment,and thus do not meet the requirements of Article 2.1 of the TBT.In addition,according to Article 2.2 of the TBT,the panel pointed out that when determining whether a measure conforms to Article 2.2 of TBT,two elements need to be analyzed.First,Whether the measure has a reasonable objective “legitimate objective” and the second step is whether the measure exceeds the necessary limits(risk to achieve reasonable goals).The purpose of the carbon tariff policy is to control carbon emissions.According to the analysis of Article 20(b)of the above GATT,the most feasible alternative measure is the obligation of countries to negotiate to reduce emissions,which is more feasible than using carbon tariffs alone.Sexuality and carbon tariff policies essentially limit competition and have a low degree of contribution to the goals.Therefore,the author believes that it is more difficult to be identified as complying with Article 2.2 of the TBT.Finally,as for Article 5.1.1,Article 5.2.1,and Article 6.1 of TBT,the three articles are conformity assessment procedures.The author believes that if a country implements a random inspection system or exemption inspection system based on trust in domestic products,however,the products are checked one by one,the purpose of which is to save domestic testing costs,but it will violate the provisions of Article5.1.1 of TBT;if a country is more familiar with the detection of domestic products,the detection time is faster,and for foreign products,may need special inspection agencies and personnel carry out special arrangements for slower testing and may also violate the provisions of Article 5.2.1 of the TBT.With respect to Article 6.1 of theTBT,the article requires that a country should accept as much as possible other members of the WTO.The test results of the country,but in practice countries have their own testing techniques and means for carbon dioxide emissions.If the final results are different,the article does not stipulate which country's test results should be used.Similarly,if a country does not recognize the test results of another country,the law does not stipulate whether the country's actions violate the obligations under that article.Therefore,the author believes that in order to circumvent the above risks,if China implements an import carbon tax,it adopts international standards as far as possible in the detection of carbon dioxide,and cooperates with international organizations.Further,our country should enhance domestic testing technologies and levels,and improve authoritativeness of the test results and the accreditation process,so as to avoid disputes arising from the test results in the future.The third chapter of this article elaborates on the compliance of export-oriented carbon tariffs.Export tariffs do not violate existing WTO laws.However,China has assumed additional obli0 gations in the Protocol to Access WTO,and has taken the initiative to promise to impose tariffs on specific raw materials only."WTO-plus obligations" led directly to the loss of China's The Appellate Body believes that Article 11.3 of China's "Accession to the WTO" cannot invoke GATT Article 20 as a defense.Therefore,the author demonstrates from four perspectives how to deal with new WTO dispute settlement lawsuits against China.First,to get rid of the impact of previous cases,because the report of the panel or the Appellate Body can only provide a legal expectation among WTO members and should be considered in handling relevant disputes(the Appellate Body uses the word“should be taken to account” rather than " should be followed"),we can see from this that the previous case was only a reference in the WTO and could not be complied with theoretically.Moreover,in the " China-Duties and other Measures concerning the Exportation of Certain Raw Materials " the Panel reached an agreement on the final 2:1 result.One of the Panel members expressed support for our country andbelieved that Article 11.3 of China's "Accession to the WTO" can invoke the 20 th clause of the GATT as a defense.Theoretically speaking,only one member of the Panel will change his viewpoint in the case.The final Panel report will have a completely different result.Therefore,the author believes that the analysis of the opinions of the members of the Panel group is an important breakthrough point in China.In the WTO,many agreements contain differential and preferential treatment for developing countries,totaling as many as 155 items,which can be found in the GATS and so on,for example,Article 4 of the GATS specifically stipulates the principle of greater participation of developing countries in world trade,such as Article 2 of the Article.It stipulates that members of developed countries and other members should establish contact points within two years from the date of entry into force of the WTO Agreement,so as to facilitate service providers in developing countries to obtain information related to their respective markets.These provisions fully embody the preferential protection and preferential policies for developing countries under the WTO mechanism.Second,in the WTO,many agreements contain differential and preferential treatment for developing countries,totaling as many as 155 items,which can be found in the "Multilateral Trade Agreements" and the "General Agreement on Trade in Service"(referred to as GATS)""Trade-Related Aspects of Intellectual Property Rights"(TRIPs)and Rules and Procedures for Settlement of Dispute Settlement.China can challenge the developing countries' initiative to assume their obligations under international environmental treaties.Third,using the theory of diversification of international law,in practice,because China adopts carbon tariffs for the purpose of implementing other relevant international treaties,it may violate the obligations under the WTO.Therefore,China may consider citing obligations under international environmental treaties as defense reasons.Or take a step back and start with Article 20(d)of the GATT,because it is a disclaimer for a country to assume its obligations under other international treaties.Finally,this article analyzes the practical feasibility of export quotas and export tariffs,and believes that although export carbon tariffs may not be in line with WTOregulations,export tariff policies are more practically feasible than carbon emissions trading systems. |
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