According to the controversial China—Raw Materials and China—Rare Earths decisions, China is prohibited from using export duties to address any environmental problems, including those associated... Show moreAccording to the controversial China—Raw Materials and China—Rare Earths decisions, China is prohibited from using export duties to address any environmental problems, including those associated with climate change. This is unfortunate because a number of climate studies have suggested that export duties can be useful to tackle carbon leakage in China, being the largest emitter and exporter of carbon dioxide emissions.This thesis argues that there is a need to consider ‘greening’ the absolute ban on China’s export duties. It accordingly proposes that, export duties - solely restricting exports - should be prohibited outright, while ‘export duties plus’ – restricting both exports and domestic consumption - should be allowed in pursuit of environmental advantages. There are three most feasible ways to achieve this balanced outcome: (i) a waiver as a stopgap measure, (ii) a Ministerial Decision or Declaration as a more flexible alternative, and (iii) a legal interpretation for the Appellate Body to distinguish between export duties and ‘export duties plus’ as a judicial correction. With regard to the proposed judicial correction, even if the Appellate Body is no longer operational, it remains relevant for the purpose of injecting valuable flexibility into the WTO’s precedent system. Show less
The state of our environment is a global concern. Despite an increasing awareness, setting internationally binding commitments has proven to be a challenging process. In the absence of a... Show more The state of our environment is a global concern. Despite an increasing awareness, setting internationally binding commitments has proven to be a challenging process. In the absence of a stringent international framework, states seek alternatives to promote environmental protection. Can states unilaterally impose trade measures targeting foreign production processes in order to protect transboundary environmental resources? Does WTO law allow for these ‘extraterritorial’ trade measures? This thesis examines extraterritoriality in the trade-environment debate. The WTO legal texts are silent on their jurisdictional scope and the case law has been scarce and incoherent. Part I discusses the relevant legal provisions and dispute settlement reports dealing with jurisdictional issues. Part II adopts a comparative perspective on extraterritoriality in different legal fields. Part III builds upon the lessons learned in Part II, proposing an extraterritoriality decision tree to assess the acceptability of trade measures targeting production within the framework of Article XX GATT. This decision tree is tested through case-studies: the WTO case US-Shrimp is revisited, in addition to EU environmental measures (fishing, emission trading, timber). This research demonstrates that the WTO legal regime does not constitute an impediment to global environmental action. Current WTO law leaves more room than is often thought. Show less
