It argues that there are opportunities to increase the environmental and trade impact of the Agreement on Climate Change, Trade and Sustainability (ACCTS) by broadening the scope of environmental goods negotiations to offer tariff preferences for 'environmentally preferred products' with a carbon footprint. under a benchmark. This could also increase legal certainty, as there is a low risk of a WTO panel concluding that the ACCTS tariff preferences for 'ecologically preferred products' are discriminatory against 'like products', contrary to Article I.1 of the General Agreement on Tariffs and Trade (GATT). . While there are practical and implementation issues to be overcome during the negotiations, agreeing tariff preferences for "environmentally preferred products" in the ACCTS would break new ground and serve as a lightning rod to normalize the adoption of trade measures to encourage the transition to low tariffs . carbon PPMs.
INTRODUCTION
Committee on Trade and Investment “APEC Cuts Environmental Good Tariffs” (press release, 28 January 2016)
THE IMPORTANCE OF TRADE MEASURES TO INCENTIVISE LOW
Trade measures are one of the policy instruments available to governments to stimulate the transition to a green economy. Second, the importing country may try to reduce the market demand arising within its own borders for an ecologically unhealthy product, thereby reducing the global intensity of environmental damage. States have been slow to realize the potential to use trade policies to support the green transition to lower carbon PPMs.
THE CHILLING EFFECT OF UNCERTAINTY IN THE WTO’S ‘LIKE
However, the debate continues regarding PPMs that are "without consequence and have no impact on the final quality of the product"51F52 - known as non-product-related PPMs (NPR-PPMs). The crux of the issue lies in the WTO's principle of non-discrimination, which states that products are likeable. The GATT drafters did not include a precise definition of the phrase "like product".
The accordion of 'uniformity' stretches and presses in different places as different provisions of the WTO Agreement are applied. Accordingly, it is well established that the similarity of two products must always be determined on a case-by-case basis,88F89 interpreted in light of the way in which the phrase is used in the relevant article. Sifonios makes sense of the conflicting jurisprudence by outlining three different theoretical approaches to 'like product' analysis that have developed over time: objective, economic and subjective.89F90.
Initially, this was done in connection with consideration of the physical properties of the products. Today, a panel is expected to conduct a more careful examination of the same product issue. The Alcoholic Beverages II case must be seen in the context of the arguments advanced by Japan on the interpretation of the phrase "to provide protection" in GATT Article III:113F114.
Others believe that the Appellate Body does indeed take into account the regulatory purpose of the measure in its case law on Article I of the GATT. As noted above, the Appellate Body confirmed that the textual context of the phrase. Note that this article focuses on the second part due to word limit limitations.
PATHWAYS TO CERTAINTY ON THE LEGALITY OF LOW CARBON
Essentially, this argument is based on the impugned measure containing an invisible "government policy" PPM which, according to Charnovitz, would still have been discriminatory under GATT Article I, but perhaps could have been saved under GATT Article XX(b ), if the United States had States provided specific evidence of the existence of different levels of security. Bacchus explores the idea of redefining "like product", but concludes that since the similarity test was developed through "seven decades of judgment by WTO jurists", it reopens to introduce the possibility of distinguishing between products on the basis of the amount of carbon used or emitted during their making, would again raise concerns about Bhagwati's 'slippery slope':158F159. It should be noted that a solution that required the creation or modification of WTO rules would require the consensus of the entire WTO membership, which has proven to be a challenging proposition in recent times.
Since negotiated solutions in the WTO are unlikely to produce results, a third option is to wait for a judicial clarification of the existing rules. The latest announcement in EU — Palm oil (Indonesia) indicates that the panel expects to deliver its report in the 2nd quarter of 2022,165F166 after which one of the disputing parties may choose to appeal the panel's findings.166F167 There is also a risk that, that like these. Another – faster – path is needed to provide the certainty states need to act to prevent catastrophic climate change by using all the measures in their toolkit.
Including such products in the scope of the ACCTS environmental goods negotiations would strengthen the ACCT's environmental and trade impacts while achieving outcomes for participating countries. Accordingly, new treaty law that conflicts with existing rules "will require the cure of illegality to become valid international law, such as by general recognition" or a decision by an international law authority.169F170 Several features of ACCTS negotiations increase the likelihood that tariff preferences for products using low-carbon PPMs will receive this recognition either through tacit acceptance by WTO membership or through WTO dispute settlement. Products that did not meet the carbon footprint standard for tariff preferences in the ACCTS could still be legally imported and sold in the domestic markets of ACCTS participating countries, albeit at a likely higher cost to consumers to cover the additional cost to the importer of the normal applied tariff rate. 172F173 Accordingly, it would be unlikely that a potential complainant would be able to demonstrate that there had been violations of Article II or III of the GATT.
This would mean that the scope of the legal issues under discussion would be limited to GATT Article I, allowing for judicial clarification of the "same product" analysis as it relates to PPM-based tariff preferences with low carbon content.
OBSTACLES IN THE PATHWAY TO INCLUDING
In addition, the involvement of two developing countries, Costa Rica and Fiji, in the ACCTS negotiations may help dispel the perception that tariff preferences for eco-friendly products were wrongly directed at developing countries. ACCTS participating countries would have a systemic interest in cooperating with each other in defense of a legal challenge within the WTO, allowing the smaller countries to pool their resources. Another example is Indonesia's attempts to include rubber and palm oil in the APEC Environmental Goods list: “Editorial: Damaging our green campaign” The Jakarta Post (online issue, July 1, 2013).
PPM standards should be set for each product in order to have the best chance of avoiding legal challenge at the WTO. It would take time to apply this approach on a comprehensive basis to all products listed in the HS Code. Third, the tariff nomenclature in the International Convention on the Harmonized Commodity Description and Coding System190F191 (HS Code) that provides a framework for tariff negotiations does not necessarily assist negotiators in identifying environmental goods.
In the context of an agreement aimed at supporting sustainability and climate change, the question is whether all of these commodities should benefit from tariff preferences, even though some could be considered 'environmentally preferable' to others on the market. In the longer term, it seems clear that trade negotiators should try to make the HS Code a better tool to facilitate negotiations on environmental goods and environmentally friendly products. The lack of specificity in the HS code and the use of 'ex outs' and additional product specifications can also pose challenges for the implementation of the ACCTS at the border.
The HS code allows countries to introduce differentiation at the seven and eight digit level, which can potentially be used in the ACCTS context to simplify customs administration by giving goods with low emission PPMs a unique HS code.
CONCLUSION
Recommendation on the inclusion of subheadings in national statistical nomenclatures to facilitate the collection and comparison of data on the international movement of substances controlled under the Kigali Amendments to the Montreal Protocol on Substances that Deplete the Ozone Layer (June 27, 2019) The G20's Role in Reconciling Trade and Climate Change Rules (International Center for Trade and Sustainable Development, White Paper, 2018). Kenji Omi Current situation, analysis and observations on waste control at customs borders (WCO, Policy Research Paper No. 50, December 2020) United Nations Environment Program Emissions Gap Report 2019 (UNEP, 26 November 2019) New Zealand Ministry of Foreign Affairs and Trade
