Are Trade Measures to Tackle the Climate Crisis the End of Differentiated Responsibilities? The Case of the EU Carbon Border Adjustment Mechanism (CBAM)

32 Pages Posted: 24 Jan 2022 Last revised: 15 Sep 2022

See all articles by Ingo Venzke

Ingo Venzke

University of Amsterdam - Amsterdam Center for International Law

Geraldo Vidigal

University of Amsterdam

Date Written: January 10, 2022

Abstract

The European Commission has proposed a Carbon Border Adjustment Mechanism (CBAM) as part of its European Green Deal (EGD). While the EGD aims to increase prices for carbon emissions for EU producers, CBAM aims at countering competitive disadvantages and at preventing so-called carbon leakage. In the present article, we consider CBAM’s legality under the EU’s international trade obligations and highlight how, in its proposed format, it is bound to undercut the principles of Common but Differentiated Responsibilities (CBDR) and Special and Differential Treatment (SDT). CBAM subjects all imported products, no matter their origin, to the same carbon price. Against the background of competing normative arguments, concerns of practicality, as well as issues of powerplay, we ask whether the European Union’s CBAM proposal could legally differentiate between countries, and whether there are legal arguments suggesting that it should do so. We argue that there is indeed scope for differentiation, even if the criteria for remain highly contested in theory and practice.

Keywords: Climate Crisis, Carbon Border Adjustment Mechanism (CBAM), International Trade Law, Common but Differentiated Responsibilities (CBDR), Special and Differential Treatment (SDT), General Exceptions

Suggested Citation

Venzke, Ingo and Vidigal, Geraldo, Are Trade Measures to Tackle the Climate Crisis the End of Differentiated Responsibilities? The Case of the EU Carbon Border Adjustment Mechanism (CBAM) (January 10, 2022). Amsterdam Law School Legal Studies Research Paper No. 2022-02. A revised version of this paper is available in 51 Netherlands Yearbook of International Law 2020 187., Available at SSRN: https://ssrn.com/abstract=4013767 or http://dx.doi.org/10.2139/ssrn.4013767

Ingo Venzke (Contact Author)

University of Amsterdam - Amsterdam Center for International Law ( email )

REC A - Nieuwe Achtergracht 166
Amsterdam, 1018WV
Netherlands

HOME PAGE: http://www.uva.nl/profiel/v/e/i.venzke/i.venzke.html

Geraldo Vidigal

University of Amsterdam ( email )

P.O. Box 1030
Amsterdam, 1000 BA
Netherlands

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