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논문 기본 정보

자료유형
학술저널
저자정보
김명자 (중국 연변대학교)
저널정보
국제법평론회 국제법평론 국제법평론 제60호
발행연도
2021.10
수록면
283 - 307 (25page)

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Nowadays, climate change is a global concern, and the international community has been constantly making efforts to reduce greenhouse gas emissions and adapt to climate change by concluding the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement. Among various countries taking the initiative, the EU has set the highest greenhouse gas reduction target and has been active in preparing effective implementing rules to reduce greenhouse gas emissions and mitigate climate change. Nevertheless, since the parties of the Paris Agreement are not obliged to set a unified goal, the commitments made by each country may vary significantly in level and scope. One country or region’s greenhouse gas reduction efforts could be offset by the increasing greenhouse gas emissions of other countries. Therefore, the EU proposed the Carbon Border Adjustment Mechanism (CBAM) as one of the key instruments to implement the ‘European Green Deal’. This study mainly focuses on the compatibility of EU CBAM with the WTO Agreements. Firstly, it introduces the three policy options of EU CBAM and examines respectively whether they are compatible with the WTO Agreements. Among the three, the option of an extension of the EU Emissions Trading System (ETS) to imports, a mechanism based on the EU single market, has the most potential to be adopted. Secondly, it examines the legal basis of the Border Adjustment Mechanism (BAM), which could be divided into two categories, fiscal measures and non-fiscal measures. Thirdly, it then reviews whether the obligation to purchase emission allowances for imports is compatible with the WTO Agreements. Under the WTO system, the difference of PPMs is basically not considered a factor to distinguish like products, so the carbon-intensive products and the low-carbon products would be deemed as like products. Therefore, different treatment to the carbon-intensive products and the low-carbon products would be a violation of the National Treatment Principle (NT) and Most-Favored-Nation Treatment Principle (MFN) under the GATT Agreement. However, if EU CBAM is carefully designed with the main purpose of preventing carbon leakage and contributing to climate change mitigation, it could be justified under the general exceptions clause of Article XX of GATT. On the other hand, if EU CBAM is aimed at protecting the interests of EU industries and raise the financial resources for economic recovery in the post-COVID19 period, it would be difficult to be justified under Article XX of GATT. This will be determined depending on the design or structure of EU CBAM, whether it is to reduce global greenhouse gas emissions or to collect tax revenues. Although the European Commission has officially published the draft CBAM legislation, it is expected that it will not be easy to be fully compliant with the WTO Agreements while gaining industry support within the EU. Attention will be paid to whether the CBAM can be introduced in 2023 as planned, and whether it is designed compatible with the WTO Agreements.

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