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

Date01 April 2018
Published date01 April 2018
The EUs conditioning of the extraterritorialcarbon footprint:
A call for an integrated approach in trade law discourse
Natalie L. Dobson
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 trueextraterri-
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.
The post-Paris ambition gap has confirmed the persistence of climate
change as a common concern in need of a more ambitious
A key part of this response is the reduction of green-
house gases such as carbon dioxide (CO
), 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
footprintoffers 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.
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 boundaryof 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
Key examples discussed in this article include the Fuel Qual-
ity Directive, the Timber Regulation and the Maritime Emissions Reg-
These measures are directed at the conduct of foreign
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in
any medium, provided the original work is properly cited and is not used for commercial purposes.
©2017 The Authors. Review of European, Comparative & International Environmental Law Published by John Wiley & Sons Ltd.
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)>.
M Berners-Lee, How Bad Are Bananas? The Carbon Footprint of Everything (Profile Books
2011) 6. See further Section 2.
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 EUs Climate Responsibilities(2015) 17 Cambridge
Yearbook of European Legal Studies 92, 100.
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;27:7589.

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