Exempting Least Developed Countries from carbon border adjustments: A legal and economic analysis

Key points

·       The EU Carbon Border Adjustment Mechanism (CBAM) extends EU carbon (ETS) pricing to imported products in six heavily traded sectors.
·       As of October 2023, the EU has commenced the first reporting phase of CBAM; the UK government is consulting on whether to introduce CBAM.
·       UK CBAM could be significant for the exports to the UK of several least developed countries (LDCs) and low and lower-middle income countries (L/LMICs), especially Sierra Leone and the Central African Republic with regards to iron and steel. But as none of these countries rely heavily on the exports of these products to the UK, the UK CBAM would not pose a major threat to these economies.
·       The impact of the EU CBAM will be more significant for the exports of LDCs and L/LMICs to the EU, especially for Mozambique with regards to aluminium as well as for Uzbekistan, Egypt, Ukraine, Zimbabwe and India for various products. Given the size of exports, the EU CBAM could even impact the whole economies of these countries.
·       The UK and the EU do not import products regulated under CBAM intensively from LDCs. Therefore, if the UK or the EU exempted LDC and L/LMIC exports from their CBAMs it would not do material damage to the CBAM’s objective of reducing the emissions of goods consumed in their territories.
·       It would, however, relieve these countries of a major reporting burden and allow them longer periods to adjust to cleaner techniques, which seems justifiable given their income levels and small contributions to current global CO2 levels.
·       WTO law and jurisprudence do not render the matter free of legal challenges. The outcome of any discrimination allegation at a WTO dispute will depend on how adjudicators decide to apply the existing law and jurisprudence to the specific case.

We also collected similar evidence on the exports from LDCs/ and L/LMICs to the EU. Table 2 is similar to Table 1 except for showing exports to the EU. The impact of the EU CBAM could be quite significant for the exports of LDCs and L/LMICs to the EU.9 Among LDCs, regulated-product exports to the EU accounted for 62.2% of Mozambique’s exports to the EU for in 2022 and a huge 22.86% of that country’s total exports. They are comprised entirely of aluminium.

For the L/LMICs, apart from Mozambique, Uzbekistan, Egypt, Ukraine, Zimbabwe and India exported regulated products accounting for 27.0%, 19.5%, 12.3%, 12.1% and 11.7% of their total exports to the EU, respectively, in 2022. Given the size of the EU, it is not surprising that the exports of regulated products to the EU account for significant percentages of the total exports of Ukraine (7.83%), Egypt (6.83%), Algeria (4.5%), Tunisia (2.9%) and Morocco (2.33%).

We further examine the regulated exports of the hardest-hit countries relative to their GDP in 2022: Mozambique (10.67%), Ukraine (2.24%), Egypt (0.71%), Algeria (1.43%), Tunisia (1.15%) and Morocco (0.71%). This suggests that the EU CBAM could impact the exports and even the whole economies of these countries. Most of these countries’ exports of regulated products to the EU are of iron & steel and aluminium but fertilisers also figure for some L/LMICs.

Finally, we explore the import shares of LDCs and L/LMICs in total UK and EU imports of regulated products. Table 3 displays these shares along with their total values for 2022. The UK and the EU do not import regulated products intensively from LDCs. In total, imports from LDCs take up 0.03% (for the UK) and 0.38% (for the EU) of the total regulated-product imports. However, imports from the L/LMICs as a group account for 4.59% (for the UK) and 5.38% (for the EU) of the total imports and these shares surge to 13.9% (for the UK) and 10.7% (for the EU) in the cement industry and 18.45% of the EU’s imports of fertilisers.

These results suggest that if the UK or the EU exempted LDC and L/LMIC exports from their CBAMs they would leave only about 5% of their imports of regulated products untreated, and thus not do material damage to the CBAM’s objective of reducing the emissions of goods consumed in their territories. It would, however, relieve these countries of a major reporting burden as well as from potentially paying significantly for their exports to Europe, depending upon the kind of preferential treatment selected.

Clearly, long-run climate objectives would leave no supplier outside the emissions-reduction apparatus, so ultimately, exemptions would need to expire, but allowing poor countries longer periods to adjust to cleaner techniques would seem justifiable given their income levels and small contributions to current global CO2 levels. We now move on to the legal feasibility of exemption.

Part IV of the GATT titled “Trade and Development” provides another set of relevant provisions. It contains mandatory obligations to reduce barriers on a high priority basis to products of particular export interest to “less-developed countries” and to refrain from imposing new barriers, or increasing existing ones, on such products. Developed countries are also to “give active consideration to the adoption of other measures designed to provide greater scope for the development of imports from less-developed contracting parties and collaborate in appropriate international action to this end”. Ad Article XXXVII provides a non-exhaustive list of such other measures, such as steps to promote domestic structural changes, to encourage the consumption of particular products, or to introduce measures of trade promotion. They shall also “have special regard to the trade interests of less-developed contracting parties when considering the application of other measures permitted under this Agreement to meet particular problems and explore all possibilities of constructive remedies before applying such measures where they would affect essential interests of those contracting parties”. Individually and collectively, these provisions mandate developed countries to eliminate trade barriers and refrain from imposing fiscal measures such as the CBAM in relation to imports from less-developed country members of the WTO. Failure to consider the trade interests of affected developing countries and explore all possibilities of constructive remedies could thus be a violation of Article XXXVII commitments.

Like the Enabling Clause, there is little WTO case law clarifying the applicability of these obligations but one pre-WTO GATT Panel in EEC - Restrictions on Imports of Dessert Apples - Complaint by Chile, a dispute regarding EU agricultural quotas, found that commitments in Part IV of the GATT are effective only if the challenged measure were permitted under Parts I – III, which include the main non-discrimination obligations of the GATT.18 Therefore, there is legal uncertainty about whether Article XXXVII of the GATT would protect the UK from a potential discrimination allegation. Two types of disputes could foreseeably arise: given any kind of preferential treatment to developing countries, non-DC countries could allege a MFN violation, and developing countries not in receipt of exemptions or dissatisfied with the level of exemptions, could allege that the kind of preferential treatment does not meet the requirements of Part IV of the GATT. In our view, Article XXXVII could be used by the UK to defend a challenge by a DC regarding non-consideration of SDT or adequacy thereof, but the provision is not designed to justify an exemption, if the challenge were brought by non-DCs. In any event, whether such discrimination complies with the Parts I – III of the GATT must first be analysed under Parts I – III of the GATT, including Article XX of the GATT (see analysis below). One could imagine that if the measure passed this test, Article XXXVII could then be invoked if the concerned DC disagrees with the level of SDT given.

Regardless, Article XXXVII specifically and Part IV of the GATT generally provide strong normative credence to the need to provide preferential treatment to developing countries to support their economic development, including by mitigating or reducing the trade-restrictiveness of measures imposed by developed countries

Any violations of the non-discrimination obligation under the GATT may still be justified by the UK, under the “General Exceptions” provision in Article XX of the GATT that allows for measures based on public policy objectives. The two-pronged test requires the CBAM to first attain provisional justification under the environment-related exceptions in Article XX (b) and (g); and second, to meet the conditions of the chapeau. Assuming that the measure is found to be “necessary to protect human, animal or plant life or health” under Article XX(b) and “relates to the conservation of exhaustible natural resources” under Article XX(g), the measure must pass muster under the chapeau of Article XX.

The chapeau requires that the CBAM does not result in discrimination; that the discrimination should not be arbitrary or unjustifiable in character; and that there should be no such discrimination between countries where the same conditions prevail.19 There should also be no disguised restriction on international trade.

To consider that the CBAM creates arbitrary or unjustifiable discrimination, it must be shown that the cause of discrimination bears no rational connection to the objective of reducing emissions.20 In other words, for the UK’s measure to be justified, the discriminatory aspects of the CBAM must be rationally related to its policy objective.21 The UK needs to prove that the time-bound preferential treatment towards developing countries is related to its climate policy objectives and the need to level the playing field for domestic producers, but with normative regard to developmental status of partner countries.  While the UK cannot deny the discriminatory application of the measure, it can stress the economics of the relaxation, whereby even a full exemption to imports from developing countries does not materially impact the emissions reduction objectives of the CBAM.

Further, the AB has held that “discrimination exists…when the application of the measure does not allow for any inquiry into the appropriateness of the regulatory programme for the conditions prevailing in those exporting countries.”22 Accordingly, a CBAM must provide the flexibility to check the appropriateness of the CBAM under different national conditions, especially in low-income and least developed countries affected most by the measure.23 Thus, the UK could potentially justify less stringent regulatory requirements on imports from developing countries on this basis. In recognition of the fact that measuring embedded emissions is a cumbersome task, the use of default emissions to assess the payments necessary under a CBAM could be argued to simplify such barriers in meeting the CBAM requirements. However, the use of default emissions in and of itself is not without legal challenge. The UK must take care to not resort to adverse inferences. An approach more favourable to developing countries would be to imply that best available technology (BAT) was used when calculating default emissions levels. If this favourable BAT benchmark is not available to all countries, however, it could be challenged as arbitrary or unjustifiable discrimination under the chapeau of Article XX.24

Next, the UK must stress that the chapeau prohibits any discrimination between countries where the same conditions prevail. Since any relaxation afforded by the CBAM would be limited to developing countries, the UK may be able to argue that the CBAM can legally discriminate between countries where different conditions prevail.25 As per existing jurisprudence, the conditions that the chapeau refers to must be understood in the context of the sub-paragraph under which the measure was provisionally justified, as well as the substantive obligations under the GATT 1994 with which a violation was found. If a respondent considers that the conditions prevailing in different countries are not ‘the same’ in relevant respects, it bears the burden of proving that claim.26 Presumably, since the substantive violation of the MFN obligation would be found owing to preferential treatment towards developing countries, their economic and developmental status is useful to understanding the meaning of relevant “conditions”.

The UK will have to bear the burden to prove that the levels of development in developing countries are different from those of more developed countries such that they need time-bound preferential treatment to prepare to comply with the CBAM.

Several scholars have argued for the harmonized reading of the Common but Differentiated Responsibility and Respective Capacities (CBDR-RC) principle of international environmental law with WTO law, relying upon Article 31(3)(c) of the Vienna Convention on the Law of Treaties.27 CBDR-RC is also a foundational principle of the Paris Agreement, which sets out that developing countries have less individual responsibility to contribute to emissions reduction,28 lending support to a differentiated approach to bearing the CBAM burden. While CBDR-RC can ideally help in the interpretation of WTO law, how it would manifest in the adjudicator’s decision-making is unclear. The UK could argue that CBDR-RC helps to characterize the terms “discrimination” and “where the same conditions prevail” present in the chapeau. However, preferential treatment for only a subset of developing countries may be harder to justify since CBDR-RC extends to all developing countries.

There are complex legal challenges concerning the design of a WTO-compatible CBAM. One cannot rule out an allegation of discrimination obligations by WTO members that are not covered under the stated category and consider themselves at a level of development that warrants preferential treatment. Therefore, blanket exemptions to a strictly defined list of countries may confront various legal challenges. Table 4 below provides an overview of the policy options available to the UK, along with their potential legal challenges.

If the CBAM were to take the form of an internal tax, the Enabling Clause has not been interpreted to allow preferential treatment by developed countries. Another option is for the UK to approach the Ministerial Conference to request the grant of waiver from its non-discrimination obligations. Article IX of the Marrakesh Agreement lays down the procedure for attaining such a waiver, but the decision to grant the waiver must be by consensus of the WTO membership, failing which, a 3/4th majority vote will decide.29 However, if the CBAM were designed as an import tariff, preferential treatment under the GSP could be leveraged to comply with the Enabling Clause.

Instead, as has been stressed in WTO jurisprudence, the use of objective standards (rather than, for example, country-based distinctions) for any form of differentiation insures against risks of violation, although an allegation of de facto MFN violation could be made. In terms of development, criteria such as GDP or GDP per capita could be used to differentiate between levels of development, but their appropriateness and accuracy have been controversial. A blanket exemption to imports based on de minimis quantitative thresholds is another option, where thresholds could exist in the form of maximum shipment weights or average quantities imported from a country. But the actual value of such thresholds must also be determined and set through objective standards, with well-reasoned explanations regarding the choice of such thresholds. Countries could also circumvent the maximum shipment weight threshold by exporting greater numbers of smaller weights at a time.30 One way to get around the latter problem would be to institute an aggregation rule, such that preferential treatment would be suspended for the remainder of a year when the value or quantity threshold was exceeded or lost permanently if exports exceeded the threshold for x consecutive years. However, the potential for a de facto discrimination violation would still remain whereby the UK may be required to justify the measure based on its policy objectives.

The UK could also consider introducing phase-in periods for the CBAM based on a variety of objective criteria, such that countries at different levels of development are granted different transition periods. Such an approach should be easier to defend than permanent exemption under the GATT since there is no exemption involved, but it would still deliver temporary discrimination commensurate with their economic differentiation.

It may also be possible to invoke paragraph 2(d) of the Enabling Clause which allows LDCs to be treated separately from other developing countries, provided the UK extends the relaxation in the form of phase-in to all developing countries and then allows LDCs a longer phase-in period.

Another option could be to exempt from the CBAM, imports based on objective environmental criteria regarding total or per-capita emissions levels defined in the United Nations Framework Convention on Climate Change (UNFCCC) or the Paris Agreement. If the UK were to devise a method to rely upon information submitted to and analysed by the UNFCCC, regarding emissions and performance in pursuance of nationally determined contributions (NDCs), such an approach might be: a) based on objective criteria b) aimed at achieving climate goals, and c) therefore, not an arbitrary or unjustifiable form of discrimination. Differentiated CBAM rates could also be considered, based on Annex I and non-Annex I countries of the UNFCCC, reserving the most preferential treatment for LDCs. To further differentiate amongst non-Annex I countries, there will need to be consideration of other objective criteria. Globally recognised indices recording and rating different countries’ climate action responses could be used for this exercise too.31 The challenge is to ensure that there is global acceptance of such indices. The World Bank, International Monetary Fund, UNFCCC, United Nations Conference on Trade and Development, and Intergovernmental Panel on Climate Change in particular can play a crucial role.

1.      See several blogs and working papers:/publications?_sf_s=CBAM and a fuller analysis here, which discusses exemption in principle on pages 67-70.
2.      LDCs include 46 countries classified as such by the United Nations – see List of LDCs – United Nations;  Lower Income Countries include 28 countries and Lower Middle-Income Countries include 54 countries classified by the World Bank in 2022 – see List of Lower-/Lower Middle-Income countries - World Bank 2022.  The group of L/LMICs covers 82 countries in total, including the LDCs.
3.      The EU’s introduction to its CBAM is at https://taxation-customs.ec.europa.eu/carbon-border-adjustment-mechanism_en
4.      See Ember Carbon Price Tracker: https://ember-climate.org/data/data-tools/carbon-price-viewer/
5.      See the precise definitions of regulated products in EUR-Lex - Ares(2023)4079551 - EN - EUR-Lex (europa.eu).
6.       We caution that there are significant discrepancies between the UK import numbers from different sources, e.g. between HMRC, HMRC trade data table and the International Trade Centre’s, Trade maps. We use the HMRC data for UK imports in this paper.
7.       Previous studies of the impact of the EU CBAM on LMICs/LDCs include: the African Climate Foundation and the Firoz Lalji Institute for Africa at LSE focus on CBAM’s implications on Africa (The impact of EU CBAM on Africa), and Carnegie Europe’s report that the most affected countries are either low-income countries or LDCs or developing countries in the EU’s neighbourhood (A political economy perspective on the EU's carbon border tax)
8.      18 out of 46 LDCs and 44 out of 82 LMICs exported to the UK in 2022. Only countries with a share of regulated exports to the UK higher than 1% are listed in Table 1.
9.      26 out of 46 LDCs and 76 out of 82 LMICs exported to the EU in 2022. Only countries with a share of regulated exports to the UK higher than 1% were listed in Table 2.
10.      Article 3.8, Agreement on Fisheries Subsidies, WT/MIN(22)/33, 2022.
11.       For example, the EU’s Economic Partnership Agreement with the East African Community proposes for certain goods a tariff liberalization period commencing 12 years after the Agreement comes into force and ending 25 years after.
12.       Whether CBAM is a tariff or internal tax has been debated in various analyses; we briefly examine the issue here: Emily Lydgate, L. Alan Winters, Peter Dodd, Camilla Jensen, Guillermo Larbalestier, Chloe Anthony and Camille Vallier,  Trade policies and emissions reduction: establishing and assessing options, Committee on Climate Change, June 2021, pp. 81-82. For internal political/procedural reasons, the EU had to deem the CBAM an administrative matter, but the UK is probably not similarly constrained. It would still, however, have to renegotiate its tariff bindings if the CBAM-enhanced tariff would exceed the existing bound rates; this is highly likely and is a major diplomatic challenge.
13.       Appellate Body Report, Brazil – Taxation, Para. 5.414.
14.        Appellate Body Report, Brazil – Taxation, Para. 5.432: “Paragraph 2(b) of the Enabling Clause, following the entry into force of the WTO Agreement, thus provides for the adoption of a limited category of differential and more favorable treatment, namely treatment that concerns non-tariff measures governed by provisions of instruments multilaterally negotiated under the auspices of the WTO.”
15.       Ingo Venzke and Geraldo Vidigal, ‘Are Trade Measures to Tackle the Climate Crisis the End of Differentiated Responsibilities? The Case of the EU Carbon Border Adjustment Mechanism (CBAM)’ (Amsterdam Law School 2022) 22.
16.       Article XXV.1 of the GATT states that “Wherever reference is made in this Agreement to the contracting parties acting jointly they are designated as the CONTRACTING PARTIES.”
17.       Tim Gore, Eline Blot, Tancrede Voituriez, Laura Kelly, Aaron Cosbey, Jodie Keane, What Can Least Developed Countries and Other Climate Vulnerable Countries Expect from The EU Carbon Border Adjustment Mechanism (CBAM)?, Institute for European Environmental Policy, 2021.
18.       See also, Panel Report, European Economic Community - Restrictions on Imports of Dessert Apples - Complaint by Chile, L/6491, adopted on 22 June 1989, 36S/93, 134, para. 12.32.
19.       Appellate Body Report, US – Shrimp, para. 150.
20.       Appellate Body Report, Brazil – Retreaded Tyres, paras. 226-228.
21.        Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico), para. 7.316.
22.       Id. at para. 164-165.
23.        Brandi, C. (2013). Trade and Climate Change: Environmental, Economic and Ethical Perspectives on Border Carbon Adjustments. Ethics, Policy & Environment, 16(1), p. 79-93. https://doi.org/10.1080/21550085.2013.768395.
24.        Hillman, J. (2013). Changing Climate for Carbon Taxes: Who’s Afraid of the WTO? Climate Advisers, 8; Howse also writes that determining baselines on the basis of assumptions about domestic production processes may also violate Article III.2. Howse, R. (2015). Non-tariff Barriers and Climate Policy: Border-Adjusted Taxes and Regulatory Measures as WTO-Compliant Climate Mitigation Strategies. European Yearbook of International Economic L., p. 10.
25.      Joost Pauwelyn, David Kleimann, Trade Related Aspects of a Carbon Border Adjustment Mechanism. A Legal Assessment, Briefing, European Parliament Directorate-General for External Policies, 2020, p. 11, https://www.europarl.europa.eu/cmsdata/210514/EXPO_BRI(2020)603502_EN.pdf.
26.       Appellate Body Reports, EC – Seal Products, paras. 5.299-5.301.
27.       Gracia Marín Durán, Securing Compatibility of Carbon Border Adjustments With The Multilateral Climate And Trade Regimes, 72 International & Comparative Law Quarterly 73–103 (2023); Joel P. Trachtman, The Domain of WTO Dispute Resolution, Harv. Int'l L.J., 40: 333 1999; Gabrielle Marceau, Conflicts of Norms and Conflicts of Jurisdictions, The Relationship between the WTO Agreement and MEAs and other Treaties, 35 J.W.T. 6: 1081-1131, 2001; Gabrielle Marceau, WTO Dispute Settlement and Human Rights, 13 E.J.I.L. 4: 753, 2002; Joost Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go?, A.J.I.L.95: 535-578, 2001; Joost Pauwelyn, Conflict of Norms in Public International Law, How WTO Law Relates to Other Rules of International Law, Cambridge University Press, Cambridge, UK, 2003; Isabelle Van Damme, Treaty Interpretation by the WTO Appellate Body, Oxford University Press, Oxford, UK, 2009; David Palmeter and Petros C. Mavroidis, The WTO Legal System: Sources of Law, A.J.I.L. 92: 398-413, 1998.
28.       Article 2(2) ; https://unfccc.int/sites/default/files/english_paris_agreement.pdf.
29.       In the WTO system, waivers have been overwhelmingly granted by way of consensus. James Bacchus, The Case for a WTO Climate Waiver, CIGI, 2017, https://www.cigionline.org/sites/default/files/documents/NEWEST%20Climate%20Waiver%20-%20Bacchus.pdf.
30.       Elisabetta Cornago , Sam Lowe, Avoiding The Pitfalls of an EU Carbon Border Adjustment Mechanism, Centre for European Reform, 5 July 2021, https://www.cer.eu/insights/avoiding-pitfalls-eu-carbon-border-adjustment-mechanism.
31.       For example, Climate Change Performance Index, https://ccpi.org/countries/.