The EU's conditioning of the ‘extraterritorial’ carbon footprint: A call for an integrated approach in trade law discourse

• Date: 01 April 2018
• Published date: 01 April 2018
• DOI: http://doi.org/10.1111/reel.12226
• Author: Natalie L. Dobson

ORIGINAL ARTICLE

The EU’s conditioning of the ‘extraterritorial’carbon footprint:

A call for an integrated approach in trade law discourse

Natalie L. Dobson

Correspondence

Email: n.l.dobson@uu.nl

Funding information

European Research Council Starting Grant

Scheme, Grant/Award Number: Proposal

336230 –UNIJURIS; Dutch Organization for

Scientific Research (NWO), Grant/Award

Number: VIDI Scheme –No 016.135.322

Circumventing the territorial system boundaries of the climate change regime, the

European Union continues to regulate foreign production processes contributing to

the carbon footprint of goods and services consumed in its market. While it is well

established that such measures raise issues of ‘extraterritoriality’, legal discourse

remains divided on the applicable jurisdictional rules. This is particularly evident in

the field of trade law, where persistent discussions remain as to the ‘true’extraterri-

toriality of trade measures, and the jurisdictional limitations under the law of the

World Trade Organization, particularly the General Agreement on Tariffs and Trade.

Turning, however, to the customary international law of State jurisdiction, there are

valuable opportunities for clarification that have received insufficient attention to

date. This article therefore proposes a more integrated approach to the jurisdictional

analysis, advocating a sequential interest-balancing test that further harmonizes cus-

tomary principles with specific trade law concerns.

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INTRODUCTION

The post-Paris ambition gap has confirmed the persistence of climate

change as a common concern in need of a more ambitious

response.

1

A key part of this response is the reduction of green-

house gases such as carbon dioxide (CO

2

), released into the atmo-

sphere as a result of human activities, in particular the production

and consumption of industrialized goods and services. Attempting to

reflect their true climate change impact, the notion of the ‘carbon

footprint’offers a means of calculating the life-cycle emissions of

such goods and services, and includes the sourcing, production meth-

ods and transport phases, irrespective of their location.

2

Taking a

proactive stance on climate protection, the European Union (EU) has

introduced several measures targeting the carbon footprint of goods

and services consumed in the Union. Circumventing the territorial

‘system boundary’of the United Nations Framework Convention on

Climate Change (UNFCCC), Kyoto Protocol and Paris Agreement, it

is not stopping at its own borders, and continues to introduce import

requirements regulating elements of the carbon footprint originating

abroad.

3

Key examples discussed in this article include the Fuel Qual-

ity Directive, the Timber Regulation and the Maritime Emissions Reg-

ulation.

4

These measures are directed at the conduct of foreign

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©2017 The Authors. Review of European, Comparative & International Environmental Law Published by John Wiley & Sons Ltd.

1

Paris Agreement (adopted 15 December 2015, entered into force 4 November 2016) 55

ILM 740; United Nations Environment Programme (UNEP), The Emissions Gap Report 2017:

A UN Environment Synthesis Report (UNEP 2017) (UNEP Emissions Gap Report 2017)

<https://wedocs.unep.org/bitstream/handle/20.500.11822/22070/EGR_2017.pdf>.

2

M Berners-Lee, How Bad Are Bananas? The Carbon Footprint of Everything (Profile Books

2011) 6. See further Section 2.

3

United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered

into force 21 March 1994) 1771 UNTS 107 (UNFCCC); Kyoto Protocol to the United

Nations Framework Convention on Climate Change (adopted 11 December 1997, entered

into force 16 February 2005) 2303 UNTS 148. See further on the ‘system boundary’,J

Scott, ‘The Geographical Scope of the EU’s Climate Responsibilities’(2015) 17 Cambridge

Yearbook of European Legal Studies 92, 100.

4

Directive 98/70/EC of 13 October 1998 relating to the quality of petrol and diesel fuels

and amending Council Directive 93/12/EEC [1998] OJ L350/58 (Fuel Quality Directive) (as

amended); Regulation 995/2010 of 20 October 2010 laying down the obligations of opera-

tors who place timber and timber products on the market [2010] OJ L295/23 (Timber Reg-

ulation); Regulation 2015/757 of 29 April 2015 on the monitoring, reporting and

verification of carbon dioxide emissions from maritime transport, and amending Directive

2009/16/EC [2015] OJ L123/55 (Maritime Emissions Regulation).

DOI: 10.1111/reel.12226

RECIEL. 2018;27:75–89. wileyonlinelibrary.com/journal/reel

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