WTO 체제에서의 탄소관세(국경세 조정)에 관한 연구

Abstract

This paper studies the trade law legality of Carbon Tariff(Border Tax Adjustment) for a greenhouse gas emission trading system. After the Copenhagen climate change negotiation fell apart without binding agreement, countries were left alone for cutting greenhouse gas in a fight against climate change. Because unilateral action increases domestic industries’ burden compared with foreign competitors leading to possible carbon leakages, the move toward a carbon tariff in developed countries is expected to gain its momentum. Under these circumstances, this paper questions and analyses whether a carbon tariff can be justified under the GATT/WTO regime and applies the legal argument developed here to the United States Climate Security Act of 2008(Lieberman-Warner Bill) to obtain some insight. Especially, we conclude that a Carbon Tariff is highly likely to be legal not only under the GATT XX (environmental exception) but also under other GATT clauses including non-discrimination principle. In other words, a carbon tariff may be regarded as one of the Border Tax Adjustment under the WTO regime. This conclusion is reached after reviewing a series of recent WTO Panel/Appellate Body decisions where the equal treatment under the GATT :2requires the comparison of actual tax burden including prior stage taxes. This means identical tax burden on products that contain equal amount of carbon can pass National Treatment test as well as Most Favored Nation test, even though different nominal taxes are levied on domestic product and imports. Also such interpretation eliminates what is required for a legal border tax adjustment, that is, physical incorporation and prior stage cumulative taxes test. It was claimed that, because accurate estimation of carbon emission for import is nearly impossible, carbon tariff could not be implemented in real world. However,calculating emission permits based on such criterion as industry average rate rather than actual emission does not always violate the WTO rules. Armed with proper procedure and objective standard, emission permit calculation may be based on other legal criteria. As the environmental exception requires justifiable treatment, not identical treatment, the burden for a admissible environmental regulation is less than the burden for legal border tax adjustment. On the other hand, the implementation is much more complex for the former measure because it must satisfy different treatment for countries under different condition. However, environmental exception contain much more room for arbitrary manipulation. This may be one of reason why the Lieberman-Warner Bill was structured for GATT XX.