Ability-To-Pay Principle 277 Absolute Advantage Theory (Smith) Normative

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ability-to-pay principle 277 Belgium absolute advantage theory (Smith) carbon equalisation mechanism 77 normative comparative advantage energy taxes 128 vs. 90–91 BEPS (Base Erosion and Profit revised theory and environmental Shifting) project (OECD) 20, BTAs 85–86, 88–89, 97 284 traditional BTAs and 14, 31, 44–47 bilateral/double tax adjustment concept agreement/convention 1, 279 in environmental BTA tax design border carbon adjustment, use of term 122–124 49–50, 121–122 in traditional BTA tax design border concept 102–103 in environmental BTA tax design Agreement on Subsidies and 119–120 Countervailing Measures in traditional BTA tax design (ASCM) 165, 177, 192–195, 222 101–102 Annex I, footnote 58 179, 195–196, border tax adjustments (BTAs) 229 overview 1–5 Annex I, footnote 61 203–204 definition 23–25 Article 1.1/1.1(a)(1)(ii) 178–179, neutrality of 28–29, 33–34 196–197 tax models and 181–183 Article 3.1(a) 177, 178–180, 197 British thermal unit (BTU) energy tax, Article 8 246 proposed 72–73 direct vs. indirect taxes 179 exemptions from national Canada regulations 234 carbon taxes 128 indirect taxes, definition 195–196 disposal fees and BTAs 56–57 aim-and-effect test 214–215 carbon equalisation mechanism anti-dumping measures 97, 98, 120, 76–79, 148 153, 177–178 carbon/pollution leakage 2, 50–51, 66, Australia 68, 76, 82, 145, 247, 254 carbon pricing mechanism 85 carbon taxes 64, 75, 91–92, 127–129 Clean Energy Act (2011) 83, 84–85 model based on environmental Customs Tariff Act (1995) 124 excise duty 133–137 tax system and environmental BTAs carbon-added tax (CAT) 137–146 83–85, 129 carbon value vs. purchase price averaging, in tax rates 32, 73, 80–81, 139–142 194, 206, 236–238, 252 comparison to VAT system 139–142 aviation sector 78–80, 125, 262–263, critique of 144–146 267–268 environmental BTAs and 236–238

323

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324 Environmental border tax adjustments and international trade law

green-added tax and 142–143 corporate income taxes 190–191 retail carbon tax (RCT) and countervailing measures 49–50, 147–148 97–98, 120 carbon-related BTAs 68–69 see also Agreement on Subsidies cascade taxes 32, 41–42, 106–107, and Countervailing Measures 206 (ASCM) certification systems 150, 153–154, customs duties 24–25, 97, 98, 237–238 102–103, 110, 120, 153 Common but Differentiated customs value 139–142, 151, 166–167 Responsibilities (CBDR) principle 268–274 Denmark comparative advantage theory carbon taxes 127–128 (Ricardo) 184 general vs. specific taxes 25–26 energy taxes 127 in the efficiency-relevant sense value-added tax (1960s) 18 (Howse) 91 destination principle 23–24, 33, normative comparative advantage 39–43, 74, 80–81, 108, 115, vs. 91 184–188 OECD report citation of 59 destination-based corporate taxes (de revised theory and environmental la Feria and Devereux) 187–188, BTAs 85–88, 97, 189–190 194 tax neutrality 15–16, 28 destination-based X tax (Bradford) traditional BTAs and 12–17, 30–31, 182–183 44, 45, 103 developing countries 268–271 competitive advantage vs. 17 adoption of BTAs and 33–34, 69, competitiveness argument 2, 66 71–72, 145, 203–204, 236, absolute advantage theory (Smith) 256–257 46 CBDR principle and 268–271 adoption of environmental BTAs polluter-pays principle and 273–274 and 58–59, 62–63, 88–89, 97, direct vs. indirect taxes 13, 26–32, 132–134 39–40, 179, 188 double dividend hypothesis and 156 see also legal framework, of environmental border taxes and environmental BTAs; legal 50–51 framework, of traditional BTAs in EU 75–76, 81 directly competitive or substitutable excise taxes and 127–128, 226–227 (DCS) products 218–222 subsidies and 158 discriminatory taxes 34, 41, 80–81, see also legitimate absolute 210–211 advantage theory see also legal framework, of conflict diamonds 154, 244–245 environmental BTAs; legal consumption taxes 26–31, 107–114, framework, of traditional BTAs 189, 225–228, 277–278 dissimilar taxation concept 222 see also individual types double dividend hypothesis 156 Convention on Biological Diversity double taxation concept 59, 109–111, 266–267, 274 117, 123, 239–240, 245, Convention on International Trade in 278–281 Endangered Species of Wild Fauna and Flora (CITES) 275 economic allegiance 187–188

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Index 325

electricity (taxes on electricity) 65, revised absolute advantage theory 72–73, 80–82, 127–128 85–86, 88–89, 97 energy taxes 83, 127–128 revised comparative advantage energy-intensive products 73, 74, theory 85–88, 97 75–76, 91–92, 128–129, role of GATT in tax matters 55 133–137, 145, 148, 203–204, role of OECD in tax matters 54 252 summary conclusions 98 environmental border tax adjustments Swiss proposals for 82–83 (BTAs) taxes on inputs as eligible for overview 1–5, 287–288 adjustments 63–65 background of 56–57 US views on 70–74 call to political actors/stakeholders environmental law principles, and 286–288 Critical Legal Studies approach to environmental BTAs 265–276 4–5, 282–284 environmental tariffs 50 definition 58 see also countervailing measures economic foundation of 49–53 environmental taxes summary conclusions 282–288 with cross-border character environmental border taxes 50–53 278–280 environmental BTA history, and distinguished from traditional taxes GATT-WTO/OECD 48–98 224–225 background of 56–57 fiscal nature of 122 definition 58 market-based measures vs. 121–122 direct/indirect and on producers 148 production/product taxes as regulations vs. 3, 231–235 eligible for adjustments 60–63 revenue from 155–158 economic foundation of environmental value of products environmental border taxes 149–151 49–53 environmental VAT model 143–144, EU views on 74–82 146–147 externalities to be internalised 91, equalisation taxes see border tax 95–96, 97 adjustments (BTAs) externality costs 92–94 European Coal and Steel Community GATT/WTO Notes (1997) overview (ECSC) 57–58 Community of Experts, Tinbergen interactions between report 39–42 traditional/environmental BTAs European Court of Justice (ECJ) foundations 96–98 on compatibility with domestic Japanese reports on 82 electricity duty with EU law legitimate absolute advantage 80–81 theory 60, 85–86, 89–92, 95, on inclusion of aviation sector into 97, 285 EU ETS 262–263, 267–268 OECD Note (1994) overview 57–58 on polluter-pays principle 272 other international developments see also Table of Cases 66–69 European Economic Community rationales for 58–60 (EEC) reception of OECD/GATT reports Commission White Paper (1985) 65–66 42–43

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326 Environmental border tax adjustments and international trade law

tax harmonisation working group Article I, most-favoured nation 11, reports 40–44 166, 238–240, 243, 245, European Union (EU) 256–257, 268–269, 271, 280 Aviation Directive 78–80, 125, Article II/II:2(a) 167–177, 180, 192, 262–263, 267–268 199–201, 204, 242, 283 carbon equalisation mechanism Article III/III:1/III:2/III:4 167–177, 76–79 180, 184, 192–193, 199–202, Directive on energy products and 204–223, 231, 234, 242, 283 electricity 81 Article VI 177–180 emission-trading scheme (ETS) Article VII 166–167, 199 76–78, 121, 125, 148, 232, 234 Article XIX 243–244 excise taxes 43–44, 112–114 Article XVI 177, 180, 192–193, release for consumption, definition 195–196 112–113 Article XX 242–257, 274–276 VAT system 35, 41–43, 105, Article XXI 243–244 107–112, 172, 198, 229–230, Article XXIII 177 237 Article XXIV 243–244 views on environmental BTAs certification systems 154 74–82 Havana Charter 184 views on traditional BTAs 38–44, ‘Industrial Pollution Control and 78 International Trade’ (1971) 55, excise taxes 56, 61 competitiveness argument and Subsidies Code 177 127–128, 226–227 ‘Trade effects of Environmental during 1960s 106–107 Measures’ (1993) 61–62 in EU 43–44, 112–114 Working Party on BTAs 21–24, as models for environmental BTAs 33–34 125–129, 229–230 see also Agreement on Subsidies ODC taxes and 129–137, 236 and Countervailing Measures see also individual types (ASCM); legal framework, of exhaustible natural resources 253–255 environmental BTAs; legal framework, of traditional externalities, definitions 92–94 BTAs; Table of Cases; externality costs 90, 92–96, 146 traditional BTA history, and extraterritoriality 258–263, 278 GATT/OECD; World Trade Organisation (WTO) fair international trade concept 90 General Agreement on Trade in Finland, electricity taxes 80–81 Services (GATS) fiscal sovereignty principle 278 advertising services 201–202 fixed exchange rates 30 Article XIV 245 France exceptions provisions 243–245 carbon equalisation mechanism 77 taxes on services 104–106 TVA taxes 26, 106–107 GHG emissions 68, 124–125, 134, free-rider issues, and MEAs 78 142, 230, 264, 267 goods and services General Agreement on Tariffs and in environmental BTA tax design Trade (GATT) (1947) 11 124–125

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Index 327

in traditional BTA tax design environmental law principles 103–106 265–276 green economy concept 248 MEA limits on BTA adoption green labelling 3, 152 266–274 green VAT (De Camillis and MEA support for BTA adoption Goralczyk) 143–144, 235 274–276 grey emissions taxes 82–83 GATT Article XX provisions 242–257, 274–276 hazardous chemicals 70–71, 75, ASCM/TBT/SPS 245–246 135–136, 156–157 conditions of applicability 246–257 see also Superfund taxes, in US GATT/GATS exceptions human, animal or plant life or health, provisions 243–245 protection of 250–253 general GATT provisions 242–243 inputs, taxes on 63–65, 135–136 XX, chapeau provisions 255–257 internalisation policies 95–96, XX(a), protection of public 150–151 morals 247–250, 252 International Civil Aviation XX(b), protection of human, Organisation (ICAO) 78, 267 animal or plant life or health International Court of Justice (ICJ) 250–253 exclusion of soft law disputes XX(g), conservation of 269–270 exhaustible natural resources request for advisory opinion on 253–255 climate change by small island international public law 257–265 states 264 state exceptions and International Maritime Organization countermeasures 263–265 267 unilateral and extraterritorial international public law, and measures 258–263, 278 environmental BTAs 257–265 summary conclusions 280–281 ISO 14067 150 tax law principles 276–280 domestic tax laws 276–278 environmental taxes with Japan cross-border character ‘Utilization of Economic 278–280 Instruments in Environmental WTO law and rules 225–240 Policies – Taxes and Charges’ consumption vs. production taxes (1996) 82 225–228 views on environmental BTAs 82 direct vs. indirect taxes 228–230 environmental taxes vs. Kimberley Process Certification regulations 231–235 Scheme 154 MFN 238–240 Rough Diamonds 154, 244–245 national treatment (NT) principle Kyoto Protocol (1997) 83, 141, 145, 235–238 266, 267–268 taxes occultes 230–231 see also individual provisions legal framework, of environmental legal framework, of traditional BTAs BTAs 224–281 165–223

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general GATT provisions Marrakesh Agreement Establishing the border charges vs. internal World Trade Organization (1994) charges 170–177 55 directly competitive or Article IX (waivers) 243–245 substitutable (DCS) products see also World Trade Organisation 218–222 (WTO) dissimilar taxation concept 222 Mill, John Stuart 10, 190, 228 legal consequences 174–177 Montreal Protocol on Substances that like products concept 208–217 Deplete the Ozone Layer (1987) most-favoured nation principle 71, 83, 239, 267, 275 166 most-favoured nation principle (MFN) national treatment (NT) principle 11, 166, 238–240, 243, 245, 166, 167, 206–222 256–257, 268–269, 271, 280 taxes in excess concept 217–218 multilateral environmental agreements valuations rule 166–167 (MEAs) 51–52 OECD 1968 report Common but Differentiated BTA history 19–34 Responsibilities (CBDR) BTA practices 106–107 principle 268–274 definition of destination principle free-rider issues 78 184–188 as limitation to adoption of WTO law and rules 167–180 environmental BTAs 265–274 arguments over eligibility of sic utere tuo principle and 263–264 direct taxes on imports as supportive of environmental BTA 183–193 adoption 274–276 arguments over ineligibility of third countries and 60 direct taxes on exports unilaterality and 258 194–198 Multilateral Fund for the BTAs on exports 177–180 Implementation of the Montreal BTAs on imports 167–177 Protocol 160 eligibility of taxes occultes 198–206 national treatment (NT) principle CBDR principle and 268–269 national treatment (NT) principle directly competitive or substitutable 206–222 (DCS) products 218–222 practical consequences of dissimilar taxation concept 222 eligibility of direct taxes environmental BTAs and 235–238 193–194 like products concept 208–217 tax models and BTAs 181–183 taxes in excess concept 217–218 see also individual provisions traditional BTAs and 166, 167, legality principle, and domestic taxes 206–222 276–277 necessity test 248–252, 254, 264–265, legitimate absolute advantage theory 281 60, 85–86, 89–92, 95, 97, 285 negative externalities (Pigou) 92 life-cycle assessment (LCA) 94, 142, neutrality of BTAs 28–29, 33–34 150, 235 non-retroactivity principle 277 like products concept 208–217 normative comparative advantage (Regan) 90–91

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Index 329

Organisation for Economic adoption of BTAs and 278 Co-operation and Development assessment of environmental value (OECD) and 149–153, 237–238 BEPS (Base Erosion and Profit like products concept and 208, Shifting) project 20, 284 212–213, 216 BTA concept, definition 1–2 necessity test and 248–250 Centre for Tax Policy and political arguments over 252–254, Administration 19 283 Committee on Fiscal Affairs 19, 54, tax design and 256 56 producers, environmental tax design Environment Policy Committee 54, and 148 56 product taxes vs. general taxes 189 ‘Environmental Taxes and Border product vs. production/process taxes Tax Adjustments’ (1994) 48 60–63 Joint Session on Taxation and public morals, protection of 247–250 Environment 54 ‘The Political Economy of relationship requirement see necessity Environmentally Related test Taxes’ (2006) 66, 71 release for consumption, in EU role in tax matters 19–20 112–113 see also environmental BTA history, residence principle 187–188 and GATT-WTO/OECD; retail carbon tax (RCT) 147–148 traditional BTA history, and retail sales taxes, in US 36, 106–108, GATT/OECD 114–116 Organisation for European Economic Ricardo, David 10, 11 Co-operation (OEEC) (1948) 19 On the Principles of Political origin principle 33, 39–43, 186–187 Economy and Taxation 16 ozone-depleting chemicals (ODC) On Protection to Agriculture 12–13 taxes see also comparative advantage environmental excise duty models theory (Ricardo) based on 129–137, 236, 285 Rio Declaration 272 exemption regime of 239 imported taxable products, sales taxes definition 129 adoption of BTAs and 229–230 in US 71–72, 127, 129–132, during 1960s 106–107 134–136, 151, 154–155, sic utere tuo principle 263–264 226–228, 231, 239 single tax principle (Avi-Yonah) similarity to Australian taxes 83–85 279–280 Smith, Adam 10, 14 Paris Agreement (2015) 286 see also absolute advantage theory physical incorporation test 204 (Smith) Pigou, Arthur C. 91, 92, 95 soft law principles 257, 269–270 Pigouvian theory 95 source principle 187–188 polluter-pays principle 75, 93–94, sovereignty principle 257–263, 278 126, 272–274, 277 Subsidies Code (WTO) 177, 192–193, process and production methods 202–203, 206 (PPMs) Superfund taxes, in US

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allocation of revenue from 156–157 summary conclusions 161 as double adjustment 226 tax concept and 120–121 environmental excise duty models tax evasion and 151–155 based on 70–71, 129–133, 236 taxes vs. other market-based as form of revenue generation 88 instruments 102, 121–122 product list 130 traditional excise duty model taxes occultes and 231 125–129 Sweden valuation and environmental proxies questions on BTAs 60, 65 149–151 requests GATT Note on BTAs VAT-based models 137–147 (1993) 56, 57–58 tax design, of traditional BTAs Switzerland 101–118 proposals for BTAs 82–83 adjustment concept and 102–103 views on environmental BTAs border concept and 101–102 82–83 export/import practices during synthetic greenhouse gases (SGG) 1960s 106–107 taxes 83–85, 129 general consumption taxes, EU VAT 107–112 tariffs, history of 10–12 goods and services and 103–106 tax concept retail sales taxes, US 114–116 in environmental BTA tax design specific consumption taxes, EU 120–121 excise duties 112–114 in traditional BTA tax design 102 summary conclusions 116–118 tax design, of environmental BTAs tax concept and 102 119–161 tax evasion 151–155 adjustment concept and 122–124 tax law principles, and environmental allocation of environmental BTA BTAs 276–280 revenue 158–161 tax neutrality (Ricardo) 15–16, 28 allocation of revenue 155 tax shifting 30–33 anti-abuse measures 153–155 tax sovereignty 46, 65, 87, 198 border concept and 119–120 taxes in excess concept 217–218 carbon tax model 133–137 taxes occultes concept carbon-added tax (CAT) 137–146, averaging of tax rates and 32, 206 236–238 environmental taxes on producers environmental taxes on producers and 148 148 lack of clarity in reports 27–28 environmental VAT model 143–144, legal grounds for 175–177 146–147 OECD report definition 27–28, 199 fiscal nature of environmental taxes Superfund and ODC taxes vs. 122 131–132 goods and services and 124–125 taxes on inputs and 63–65, 135–136 models based on retail sales tax taxes on services and 104 147–148 WTO and environmental BTA model based on US Superfund and eligibility 198–206 ODC taxes 129–133 WTO law and traditional BTA revenue from environmental taxes eligibility 230–231 155–158 territorial sovereignty 257–263

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Index 331

theory of absolute advantage see UN Conference on Trade and absolute advantage theory Employment, Preparatory (Smith) Committee (1947) 199–200 theory of comparative advantage see UN Convention on the Law of the Sea comparative advantage theory (UNCLOS) 267 (Ricardo) UN Convention to Combat third territories, under TFEU 109, Desertification 274 110, 112 UN Environment Programme (UNEP) Tinbergen report (ECSC) 39–42 160 traditional BTA history, and WTO/UNEP Report, Trade and Climate Change (2009) 68 GATT/OECD 9–47 UN Framework Convention on absolute advantage theory (Smith) Climate Change (UNFCCC) 83, 14, 31, 44–47 94, 230–231, 274 background of reports 20–23 see also Kyoto Protocol (1997) comparative advantage theory UN Stockholm Conference on Human (Ricardo) 12–17, 30–31, 44, Environment (1972) 55 45–46 United States (US) definition of BTAs 23–25 Border Tax Equity Act, proposed 38 EU views on 35–44, 78 British thermal unit (BTU) energy first use of BTAs 18 tax, proposed 72–73 fiscal vs. non-fiscal factors 33 extension of BTA system to direct GATT on developing countries taxes and export companies, 33–34 proposed 35–36 history of tariffs and 10–12 Fair Tax Act, proposed 37 interim conclusions 47 ODC taxes 71–72, 127, 129–132, rationales for/against BTA adoption 134–136, 151, 154–155, 28–30 226–228, 231, 239, 285 role of GATT in tax matters 20 proposed amendments to Internal role of OECD in tax matters 19–20 Revenue Code 74 tax shifting as basis for BTAs proposed climate action bills 73–74 30–33 retail sales taxes 36, 106–108, 114–116 taxes eligible for BTAs 25–28 Superfund taxes 70–71, 88, Treaty on the Functioning of the 129–133, 156–157, 226, 231, European Union (TFEU) 80, 236 109, 272 upstream carbon tax proposal 127 turnover taxes views on environmental BTAs ECSC study on 39–42 70–74 in Germany 20–21, 26 views on traditional BTAs 21, 29, TVA taxes, in France 26, 106–107 198 Whiskey Act excise tax (1791) 18 UN Conference on Environment and upstream carbon taxes 127, 133–137, Development, Agenda 21 266 144–145 UN Conference on Trade and US Council for International Business Development (UNCTAD) 69, 203–204 233

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332 Environmental border tax adjustments and international trade law

US Customs 116 binding of tariffs 11 carbon-related BTAs 68 valuations rule 149–151, 166–167 Critical Legal Studies approach to VAT systems 282–284 in EU 35, 41–43, 105, 107–112, Customs Valuation Agreement 152 172, 198, 229–230, 237 Dispute Settlement Bodies 269–270 national treatment (NT) principle product vs. production/process taxes and 236–238 62–63 proposed for US 36–37 as successor to GATT (1995) 20 VAT-based models, for environmental ‘Taxes and Charges for BTAs 137–147 Environmental Purposes – carbon-added tax (CAT) 137–146 Border Tax Adjustment’ (1997) environmental VAT 143–144, 58 146–147 Vienna Convention 276 Tokyo Round Subsidies Code 177, 192–193, 202–203, 206 welfare factor 52 Uruguay Round 57–58, 177, 202 World Customs Organization WTO/UNEP Report, Trade and Authorized Economic Operator Climate Change (2009) 68 Programmes 153–154 see also Agreement on Subsidies World Trade Organisation (WTO) 12 and Countervailing Measures Agreement on Agriculture, the (ASCM); environmental BTA Agreement on Technical history, and Barriers to Trade (TBT) GATT-WTO/OECD; legal 240–241, 245–246 framework, of environmental Agreement on the Application of BTAs; legal framework, of Sanitary and Phytosanitary traditional BTAs; Measures (SPS) 240, 245–246 most-favoured nation principle anti-tax evasion abuse measures (MFN); Table of Cases 153–155

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