Washington International Law Journal


This article argues that carbon-related border tax adjustments (“CRBTAs”) can be used effectively to complement the compliance mechanisms of the Paris Agreement against a truly recalcitrant party. The soft enforcement mechanisms envisioned by the Paris Agreement—facilitative assistance and political or moral suasion—are unlikely to provide a sufficient response to a party that becomes truly recalcitrant. CRBTAs provide parties to the Paris Agreement with a hard-edged economic tool able to respond to a party that disavows the Paris regime. This article outlines the features of a CRBTA regime that would be lawful under the General Agreement on Tariffs and Trade and argues that the international political economy of the Paris Agreement supports the development of complementary CRBTA measures. By situating a proposed CRBTA regime in the multilateral context of the Paris Agreement, this article argues that it is possible to overcome the political hurdles that have restrained states from unilaterally adopting these measures. Finally, the Article posits that the Trump Administration has set the United States on a course of recalcitrance that has increased the likelihood that CRBTA measures may be deployed against the United States by other parties to the Paris Agreement.

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