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Positions & Statements

WTO Rules and Procedures and Their Implication for the Kyoto Protocol

 

A Background Paper

 

Prepared by the United States Council for International Business

 

November 2002

 

(Based on a presentation by USCIB Senior Vice President Timothy Deal at the National Climate Change Conference, Calgary, Alberta, October 8, 2002)

 

 

Introduction

 

The Kyoto Protocol to the United Nations Framework Convention on Climate Change sets legally binding reductions for greenhouse gas emissions in the so-called Annex 1 states, essentially OECD countries and countries in transition to a market economy.  The Protocol introduces three international flexibility mechanisms: international emissions trading, joint implementation, and the clean development mechanism.  The article defining the flexibility mechanisms notes that their use must be supplemented by domestic actions.[1]

 

A paper prepared by ZhongXiang Zhang and Lucas Assunção for the Fondazione Eni Enrico Mattei entitled “Domestic Climate Policies and the WTO” notes that the Kyoto Protocol gives countries considerable flexibility in meeting their emission commitments.  Possible climate policies might include carbon or energy taxes, subsidies, energy efficiency standards, ecolabels, and government procurement policies.  Putting such policies into effect, however, could raise questions about their consistency with WTO rules if they somehow discriminate between domestic and foreign producers.  Zhang and Assunção summarize the dilemma as follows:

 

“In order to meet their Kyoto emission targets with minimum adverse effects on their economy, it is highly likely that Annex 1 governments with differentiated legal and political systems might pursue these policies in such a way as to unfairly favor domestic producers over foreign ones.  Such differential treatment could occur in governing eligibility for, and the amount of, the subsidy, in establishing energy efficiency standards, in the determination of the category of ecolabled products and the procedures of establishing ecolabels, in the specifications in tenders, and in specifying condition(s) for participating in government procurement bids.  In (the) case where a country unilaterally imposes a carbon tax, it may adjust taxes at the border to mitigate (the) competitiveness effects of cheaper imports not subject to a similar level of the carbon in the country of origin.  Measure(s) of this sort may well raise complex questions with respect to the WTO consistency and the conditions under which border taxes can be adjusted to accommodate a loss of international competitiveness.”[2]

 

The possibility of a clash over climate change commitments under the Kyoto Protocol and WTO rules has increased as a result of the U.S. decision to abandon Kyoto.  Strong resentment over this action, particularly in Europe, may lead the EU, and perhaps others, to undertake actions to penalize American and other non-Annex 1 firms for alleged competitive advantages resulting from their non-adherence to Kyoto.

 

The following statements by the EU and two prominent NGOs reflect those attitudes and concerns:

 

European Union

 

“The EU also wants to clarify that measures taken to tackle environmental problems under Multilateral Environmental Agreements (MEAs), such as the Kyoto Protocol on Climate change, are not contrary to WTO rules.  For example, problems could arise if a country imposed a trade measure for environmental purposes on another WTO Member that had not signed the MEA.  Could the country affected use WTO rules to overrule the trade measures?  The EU wants WTO Members to agree that this should not be allowed to happen.”[3]

 

Greenpeace International

 

“WTO Member States should say before arriving in Doha (for the WTO Ministerial) that they will not discuss the possibility of a new round of trade liberalization if the US does not agree to ratify the Kyoto Protocol.  If the US continues to refuse to ratify the Kyoto Protocol, WTO Members States who support Kyoto should also consider bringing that country before a WTO Dispute Panel, because the US position is providing the equivalent to a hidden subsidy for their domestic industry, inconsistent with WTO rules.”[4]

 

Friends of the Earth Europe

 

“EU governments should also consider targeting specifically high energy intensive products.  The U.S. rejection of the Kyoto Protocol is unfair and puts European business at a disadvantage.  With Bush’s increasing rejection of international agreements that are essential to protect our environment, Europe should have every right to penalize U.S. goods for the pollution they cause.”[5]

 

The purpose of this paper is to provide a general overview of WTO rules pertaining to trade and environment.  It also refers to a recent decision by the WTO’s Appellate Body, which has important implications for the interpretation and enforcement of those rules.  The decision in the WTO’s Shrimp-Turtle case may have opened the door for the use of trade measures to promote environmental objectives based on the way that a product is made.

 

There is also a separate, but equally important, question relating to the legality of border tax adjustments in the context of a carbon tax scheme.  The Uruguay Round Agreement on Subsidies and Countervailing Measures changed the rules concerning the legality of indirect tax rebates on inputs consumed in the production process, and that may also have relevance to this issue.

 

GATT/WTO Rules on Trade and Environment

 

The WTO came into existence on January 1, 1995.  Although the WTO is a relatively new international body, its roots go back to the creation of the GATT in 1948.  The GATT was originally established as a body to regulate tariffs on goods, primarily industrial goods.  Over time, the GATT took up non-tariff barriers such as standards and quotas.  The Uruguay Round extended the reach of the GATT, and ultimately the WTO, to services, trade aspects of investment policy, intellectual property, and agricultural goods.

 

There are important institutional differences between the GATT and WTO. For example, signatories to the GATT were “Contracting Parties”, not “Members”, terminology that reflected the contractual nature of the relationship.  With the conclusion of the Uruguay Round, GATT Contracting Parties became WTO members.

 

These changes were important in themselves, but perhaps the really critical distinction between the GATT and WTO was the creation of a binding dispute settlement system.  Under the GATT, Contracting Parties could bring cases before the international body, but there was no enforcement mechanism.  Creation of the WTO changed all that, and over the last six years the judicial procedures and case law have developed further.

 

The GATT/WTO rules that are – or may become – sources of conflict between the WTO and Multilateral Environment Agreements (MEAs), such as the Kyoto Protocol, are as follows:

 

1.       GATT Article I, the Most Favored Nation clause, requires equal treatment among WTO signatories.  Yet a number of MEAs require parties to those agreements to apply more restrictive trade rules against non-parties to the agreements than parties.

2.       GATT Article III, the National Treatment clause, requires imported products to be treated no less favorably than “like” domestic products.  Under the rules in effect, at least until the Shrimp-Turtle case, governments could under Article III put controls on imports comparable to those imposed on domestic goods with respect to their physical characteristics and performance.  However, they could not impose restrictions on how a product was made if those production methods had no effect on the product’s performance or characteristics.  Under the “like” product definition, import restrictions on the basis of non-product related process and production methods (PPMs) were not permitted.  The Woodrow Wilson Center offered the following example of a possible trade and environmental conflict under Article III.  It noted that a semiconductor made with ozone-depleting substances would be banned under the Montreal Protocol.  Yet the WTO definition of “like” product (pre-Shrimp-Turtle) would prohibit such trade discrimination.[6]

3.       GATT Article XI bans quotas and the use of import or export licenses.  However, some existing MEAs impose licensing requirements, which might violate Article XI.

 

4.       GATT Article XX exempts certain measures from other WTO obligations if under Article XX (b) they are “…necessary to protect human, animal, or plant life and health…” or under Article XX (g) they relate “…to the conservation of exhaustible natural resources.”  However, that Article requires that such measures must not be applied in an arbitrary or unjustifiably discriminatory manner or act as a disguised restriction on trade. 

 

WTO Jurisprudence before Shrimp-Turtle

 

In a 1998 paper written before the Appellate Body decision in Shrimp-Turtle, Gary Sampson, former head of the Trade and Environment Division of the WTO, noted the need for policy coherence between WTO rules and climate change commitments.[7]  In this article, he summarized the prevailing views on these issues, which are still held by a number of scholars and even some governments.  Referring to the possible conflict between WTO rights and obligations with whatever emerges from future climate change negotiations, he stressed the following points:

 

·         Acceptance of a legal instrument to reduce greenhouse gas emissions would mean that any individual government would have agreed, in effect, to be subjected to the obligations of that agreement.

·         If trade measures not authorized by WTO rules were part of the climate change agreement, the WTO members in question would have effectively waived their WTO rights.

·         Inconsistencies between the climate change agreement and the WTO would be relevant only if WTO-inconsistent measures were applied to non-parties to the environmental agreement.

 

Later in the paper, he turns specifically to the “like product” question, which is important in determining the WTO-consistency of certain measures.  Under the rules in effect at least through early 1998, he argued:

 

“It is important for measures taken for climate change purposes, however, that the WTO flexibility only extends to regulation of products produced domestically, imported products, and domestic production processes.  It does not extend to flexibility in the extraterritorial application of measures relating to production processes in exporting countries.  The manner in which a foreign product is produced is not a basis on which WTO rights and obligations are established…Thus, for measures to be WTO consistent, products that have the same physical form are to be considered to be like products by the importing country, irrespective of whether they have been produced abroad in an environmentally friendly manner or not.”[8]

 

What does all this mean in practice?  Until the Shrimp-Turtle case in 1998, one could say with a certain degree of confidence that:

 

1.       Governments were free to set whatever standard of protection they deemed appropriate in the areas of public health, safety, and the environment, provided that they did not treat domestic producers more favorably than foreign producers.

2.       Governments could set whatever level of protection they deemed appropriate domestically, but they did not have the right to set standards for other countries.[9]

Recent WTO Appellate Body decisions have, however, cast doubt on these interpretations.  And they may have paved the way for increased use of discriminatory trade measures to meet environmental objectives.

 

The Shrimp-Turtle Case

 

As noted earlier, the Shrimp-Turtle case decided by the Appellate Body in 1998 broke new ground in addressing the interaction between WTO trade rules and domestic measures designed to protect the environment.  In this case, India, Pakistan, Malaysia, and Thailand brought action in the WTO against an U.S. law that restricted imports of shrimp not caught in nets equipped with turtle excluder devices.  The four governments challenged this measure, asserting that the U.S. could not apply its laws to foreign process and production methods. 

 

The Appellate Body found that the U.S. shrimp-turtle law fell within the scope of the Article XX (g) exception for measures relating to the conservation of an exhaustible natural resource.

 

First, the Appellate Body determined that the U.S. law encouraged other countries to adopt sea turtle conservation programs and was thus a measure relating to conservation.  It rejected arguments made by the complainants that the U.S. measure fell outside the scope of Article XX (g) because the sea turtles never entered U.S. waters.  It found a “sufficient nexus” between the U.S. and the endangered sea turtles because sea turtles are highly migratory and because all of the sea turtle species at issue could be found in U.S. waters, even though no individual sea turtle actually traveled from Asia to the U.S. 

 

Second, it found that endangered species could be deemed “exhaustible natural resources” under the terms of Article XX (g).  In doing so, the Appellate Body looked beyond the specific GATT Article to the preamble of the 1994 WTO agreement, which referred to sustainable development, and to the fact that other international conventions used the term “natural resource” to embrace both living and non-living resources.

 

Having made these findings, which established important precedents, the Appellate Body then ruled against the U.S. because of the way the U.S. implemented the law, but not the law itself.[10]

 

Implications of Shrimp-Turtle

 

What is the significance of this decision and what is its relevance to the Kyoto Protocol?  According to a new study by the Economic Strategy Institute, the Shrimp-Turtle case represents a fundamental shift in WTO jurisprudence.  The ESI claims that in Shrimp-Turtle, the Appellate Body completed a transition in dispute settlement reasoning that, if sustained, would permit members to invoke the Article XX exemptions to regulate imports on the basis of non-product related PPMs to accomplish environmental objectives both outside their jurisdiction and in the global commons -- and perhaps to achieve other social objectives.[11]

 

Geoffrey Shaffer, Assistant Professor of Law at University of Wisconsin Law School, assessed the implications of this decision as follows:

 

“The Appellate Body’s decision attempts to promote multilateral cooperation and to ensure that domestic decision-making over trade-environment matters takes into account unrepresented foreign interests.  In the process, the Appellate Body implies that a unilateral environment-related trade measure based on non-product related PPMs may be implemented in compliance with GATT requirements to protect a shared, but endangered, world resource.”[12]

 

Dr. Arthur Appleton, a Swiss lawyer who specializes in WTO work and international arbitration, pointed out in a comprehensive article on the WTO and emissions trading that the Shrimp-Turtle case demonstrates that WTO panels and the Appellate do not operate in a political vacuum.[13]  Nonetheless, he argues that:

 

“The near universal acceptance of the climate change instruments, by WTO and non-WTO members alike, coupled with the Appellate Body’s expressed interest in environmental issues, greatly reduces the likelihood that the Appellate Body will ignore, or that WTO members will seek to challenge as WTO-inconsistent, the eventual UN Framework Convention on Climate Change implementation program.”[14]

 

Still, he hedges his bet, stating:

 

“This does not mean that there will not be tensions, and it does not mean that situations cannot be imagined where conflicts will arise.  In particular, disputes based on competition concerns are certainly likely because those choosing to stay outside of Kyoto/Bonn and future climate instruments may benefit from lower production costs.”[15]

 

That said, he concludes that:

 

“…WTO panels and the Appellate Body would only be willing to countenance the application of trade measures against Kyoto non-participants when climate change remedies satisfy the non-discrimination principle, when those obligations are close to universal acceptance (which they are), when climate change remedies require a very serious trade measure for their resolution, and reasonable cooperative measures to address climate change problems fail.”[16]

 

Two German legal scholars see things differently, however.  In a July 2001 paper, Matthias Buck and Roda Veheyen, current and former researchers at Hamburg University’s Research Unit Environmental Law, assert that as a result of the Shrimp-Turtle case, trade restrictive environmental measures – including PPM-based measures – can be justified under GATT provisions if such measures were agreed and negotiated multilaterally.[17]  They also argue that unilateral measures might be acceptable if they were adopted after serious efforts to reach an international agreement with states whose WTO rights might be affected by an environmental policy measure.

 

Turning to countries such as the U.S., which have not agreed to Kyoto, they make the following claim:

 

“…(I)t is important to stress that legally required minimum cooperation effort at the trade and climate change interface not only imposes obligations on more progressive governments, but will also serve to judge the behavior of industrialized countries which seek to avoid any meaningful steps to address the climate change challenge.  Viewed from this angle, one would have to ask whether WTO parties that resist or even obstruct international cooperation on climate change, and thus violate their international obligations to cooperate in this field, lose some of their legitimacy to challenge climate change policy measures adopted by more constructive and progressive governments as WTO-incompatible.

 

In sum, if progressive governments meet the ‘minimum cooperation efforts’ threshold, this will shift the line of equilibrium between their WTO obligations and their other obligations resulting from international law on climate change in favor of the WTO-compatibility of a climate change policy measure.  Governments which violate their international cooperation obligations in the area of climate change may not be able to exercise rights conferred to them under the WTO-regime to an extent which will undermine the effectiveness of climate change policies adopted by more progressive governments to the benefit of the global climate and of humankind as a whole.”[18]

 

While these scholars appear to take a more radical approach to the issue than their legal brethren elsewhere, they do raise an important point in their references to international obligations.  Article 18 of the Vienna Convention on the Law of Treaties is relevant in that regard and states as follows:

 

“A state is obliged to refrain from acts which would defeat the object and purpose of a treaty when:

 

(a) it has signed the treaty of has exchanged instruments constituting the treaty subject to ratification, acceptance or approval until it shall have made the intention clear not to become a party to the treaty…”[19]

 

Since the U.S. has signed the UN Framework Convention on Climate Change even if it has not ratified the Kyoto Protocol, the U.S. could therefore lose some of the protections afforded it under WTO rules in any WTO dispute brought by the EU or other Kyoto participant.  Unless the U.S. takes a formal step to withdraw from the Framework Convention, as it did in the case of the International Criminal Court, a WTO Dispute Panel or the Appellate Body could, in keeping with the Vienna Convention and customary international law, deny the U.S. legal standing to challenge, for example, EU measures to enforce Kyoto.
 

Border Tax Adjustments and the WTO

 

If the arguments outlined above have any validity, it is not difficult to imagine a situation, for example, where the EU takes trade measures against firms to protect their firms from foreign competitors not subject to the Kyoto rules.  These advantages might include, for example, lower fossil fuel costs in the U.S. and other non-Annex 1 countries.

 

Such an approach might involve use of a carbon tax coupled with some sort of border tax adjustment.  Consider a situation whereby the EU imposed an internal tax on the carbon emitted in the production of goods.  The tax would encourage the reduction of greenhouse gas emissions and the prices of energy-intensive goods and goods whose production caused high greenhouse gas emissions would rise as a result.  But the tax would penalize EU producers, who could complain that they could not compete with foreign firms not subject to those taxes.  Consequently, the Kyoto signatory country – the EU in this example -- might impose a tax on imported goods equal to what would have been paid had these goods been manufactured domestically.  Of course, under such a scheme exported goods probably would be eligible for a full rebate of internal taxes.

 

The legality of such a border tax system under GATT rules, that is, before conclusion of the Uruguay Round would be doubtful.  Border tax adjustments on imports or exports of products were permitted for any indirect taxes levied on the product itself or on products physically incorporated or exhausted in the production of the final good.  Adjustments were not allowed for indirect taxes levied on products or services consumed in the course of production.

 

But the Uruguay Round Agreement on Subsidies and Countervailing Measures may have called that previous understanding into question.  The new agreement is broader in scope than that concluded in 1979 in that indirect taxes on “inputs that are consumed in the production of exported products” may be rebated without being subject to any countervailing duties.  Such inputs are further defined as inputs “physically incorporated, energy, fuels and oil used in the production process and catalysts which are consumed in the course of their use to obtain the exported product.”

 

While the reference in the agreement is to the rebate of export taxes, it seems reasonable to assume that, under this provision, the WTO would allow full taxation of imports so that domestically produced goods and imports would be treated equally.

 

In 1994, then USCIB President Abraham Katz sought clarification from the Clinton Administration on this point.  The reply from USTR, which is quoted in a 1997 WTO Secretariat report, indicates that the new language was the object of an informal agreement among developed countries whereby:

 

“…It was proposed to address a specific and very narrow issue involving certain energy-intensive exports from a limited number of countries.  It was never intended to fundamentally expand the right of countries to apply border adjustment for a broader range to taxes on energy, especially in the developed world…We (the U.S.) discussed the matter with other developed countries involved in the Subsidies Code negotiations.  We are satisfied that they share our views on the purpose of the text as drafted and the importance of careful international examination before any broader policy conclusions should be drawn regarding border adjustments and energy taxes.”[20]

 

This so-called “Gentlemen’s Agreement” has never been tested.  However, the actual language in the Subsidies and Countervailing Measures Agreement stands as written and ratified.  And with the evolution of WTO case law, as exemplified by the Shrimp-Turtle decision, it is conceivable that a Kyoto Annex 1 country could claim that a border tax, for example, is entitled to an environmental exception under GATT Article XX.

 

Indeed, the 1996 report of the WTO’s Committee on Trade and Environment to the Singapore Ministerial explicitly states, “Scope exists under WTO provisions for Member governments to apply environmental charges and taxes.”  The report went on to note that the CTE had done only preliminary work on this latter, concluding that “Further work on this Item is needed.”[21]

 

Conclusion

 

The Appellate Body’s decision in Shrimp-Turtle has seemingly established the principle that non-product related PPMs are acceptable restraints on trade where a country claims to be protecting a resource that is found in the global commons.  There is some risk then that the EU and other like-minded countries might resort to trade measures in the form of border tax adjustments or other barriers to offset the competitive advantage allegedly enjoyed by firms in the U.S. and other non-Annex 1 countries because of their non-adherence to Kyoto.  And they might have a good, legal case against a trade challenge launched by those countries in the WTO if recent case law is an accurate guide.

 

How realistic are these threats? Right now, the risk is probably low.  Many of the views quoted in this paper are highly speculative in nature with respect to the linkages between a climate change agreement and the WTO.   Moreover, it is hard to imagine the EU or any other country or trading bloc being in a position to create some compensatory or trade retaliatory regime before Kyoto is fully implemented. 

 

The U.S. Administration is mindful of the threat.  For the moment, however, U.S. officials are waiting to see what, if any, specific measures the EU or others develop.  They have noted that the Kyoto Protocol is silent on trade measures and that Kyoto imposes no trade obligations.  Therefore, it is argued, any trade action taken by the EU or others would have to be consistent with WTO rules and benefit from an Article XX exception.  The position of other non-Annex 1 countries is not clear on this point.

 

But that is the rub.  The business community cannot count on any challenge in the WTO against trade measures designed to promote compliance with Kyoto being upheld by a Dispute Panel or the Appellate Body.  The Shrimp-Turtle decision and the revised treatment of inputs in the Uruguay Round’s agreement on subsidies have opened the door to such measures.  And it is clear that there are some groups and governments seemingly prepared to test the system at some future point.  Such a challenge would be significant not only for business, but also for the functioning and international standing of the WTO.

 



[1] ZhongXiang Zhang and Lucas Assunção, Domestic Climate Policies and the WTO, Fondazione Eni Enrico Mattei, Milan, Italy, December 2001, p. 3.

[2] Zhang and Assunção, ibid., p.3.

[3] European Union, Trade and the Environment: Support Sustainable Development, an EU policy statement posted on its website (http://europa.eu.int/comm/trade/index_en.htm), p.2.

[4] Greenpeace International, Greenpeace Recommendations to the Conference, a paper prepared for the Doha Ministerial and available at http://www.greenpeace.org/politics/wto/Doha/html/greeningD.html, p.1.

[5] Friends of the Earth Europe, Press Release dated September 16, 2002, available at http://www.foeeurope.org/press/AW_16_09_02_GMOsynergy.htm.

[6] Woodrow Wilson International Center for Scholars, Trade and Environment Forum, The WTO and MEAs: Time for a Good Neighbor Policy, January 2002.

[7] Gary P. Sampson, “WTO Rules and Climate Change: The Need for Policy Coherence,” in Inter-linkages between the Kyoto Protocol and other Multilateral Regimes, Joint Project of the United Nations University, Institute ofAdvanced Studies, and Global Environment Information Centre.  Available at http://www.geic.or.jp/climgov.

[8] Sampson, op. cit., p.35.

[9] National Association of Manufacturers, Clearing the Air: The WTO and America’s Public Health, Safety and Environment, a Public Policy Summary, November 18, 1999.

[10] Above analysis of Appellate Body decision is based on a briefing paper prepared by the Office of the United States Trade Representative, Appellate Body Report in WTO Shrimp-Turtle case, 1998.

[11] Economic Strategy Institute, Reconciling Trade and the Environment in the WTO, January 7, 2002.  Available at http://www.econstrat.org.

[12] Geoffrey Shaffer, A Trade and Environment Conflict: the Shrimp-Turtle Case, a paper prepared for the Round Table Meeting of Experts, International Council on Metals and the Environment, July 2001.

[13] Arthur E. Appleton, The World Trade Organization’s View: Emissions Reduction in a Free Trade World, Swiss Re Centre for Global Dialogue, Rüschlikon, Switzerland, October 11, 2001.

[14] Ibid. p. 13.

[15] Ibid. p. 13.

[16] Appleton, op. cit., p.16.

[17] Matthias Buck and Roda Verheyen, International Trade Law and Climate Change – A Positive Way Forward, FES-Analyse Ökologische Marktwirtshaft, July 2001. 

[18] Ibid, p. 38.

[19] The Vienna Convention on the Law of Treaties available at http://www.un.org/law/ilc/texts/treaties.htm.

[20] World Trade Organization, Taxes and Charges for Environmental Purposes – Border Tax Adjustment, Document WT/CTE/W/47, 2 May 1997, p.18.

[21] World Trade Organization, Report of the WTO Committee on Trade and Environment, Document PRESS/TE 014, 18 November 1996, p.31.





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