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

Abstract

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’ extraterritoriality 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 customary principles with specific trade law concerns.