Tuesday, October 18, 2011
Having previously analyzed the Advocate General's claims that the EU is not bound by the Chicago Convention and that the ETS does not violate prohibitions on extraterritorial regulation, today we look at the opinion's assertion that the EU is free to act unilaterally on emissions regulation, rather than being compelled to work through ICAO to achieve a multilateral solution. The Advocate General identifies two potential sources of law that might prohibit unilateral action, Article 2(2) of the Kyoto Protocol and Article 15(3) of the EU/U.S. Open Skies Agreement.
Article 2(2) of the Kyoto Protocol says that the parties "shall pursue limitation or reduction of emissions of greenhouse gases ... working through the International Civil Aviation Organization ... ." See Kyoto Protocol to the United Nations Framework Convention on Climate Change (available here). The Advocate General interprets this clause as a "preference" for finding a multilateral solution through ICAO, but not a commitment to working exclusively through ICAO. The AG bases this opinion on two practical considerations: not all ICAO members were parties to the Kyoto Protocol, so an assignment of exclusive authority to ICAO would give outsider nations a prominent role in implementing obligations under an agreement they didn't sign; and not all Kyoto signatories are ICAO members (including, notably, the EU) so exclusive ICAO authority would prevent a Kyoto party from participating in the implementation of its Kyoto obligations. One could argue in response that the question shouldn't be whether it was a good idea for the Kyoto parties to assign airline emissions exclusively to ICAO, but whether that is what the Kyoto parties did. The AG seems to be of the opinion that because it wasn't a good idea, it couldn't have been what was intended by the Kyoto Protocol. It would be interesting to look at minutes from the Kyoto meetings to see if there is any extrinsic evidence supporting the AG's conclusion that the word "shall" in Article 2(2) was meant as a preference and not an exclusive commitment. The AG goes on to argue that this "preference" constitutes only a "very general obligation of conduct" and that, by attempting to work through ICAO on the emissions issue for a decade, the EU had satisfied that general obligation of conduct and must now be free to "take the measures necessary to achieve the Kyoto objectives." This perhaps summarizes the underlying theory of treaty interpretation the AG appears to be applying: reading the treaty as broadly or generously as necessary to permit conduct in furtherance of the treaty's underlying objectives.
Article 15(3) of the EU/U.S. Open Skies Agreement requires the parties to follow the environmental standards adopted by ICAO in the annexes to the Chicago Convention. Because ICAO has not adopted any emissions standards in the Convention annexes, the AG is on firmer ground in finding no prohibition to unilateral action here. The AG does note the 2007 and 2010 ICAO Assembly resolutions. In support of the AG's opinion, the 2010 resolution seemingly permits unilateral action as Brian F. Havel and Gabriel S. Sanchez point out in Towards a Global Aviation Agreement (available here). It is interesting to observe that, despite the more favorable 2010 resolution, the AG took the time to discuss the 2007 resolution that was more negatively disposed toward unilateral action, calling it "a non-binding political declaration." This could be seen as a blow to those who tout the efficacy of pluralism and "soft" law, as the AG seems to make clear that only binding commitments matter. It also should give notice to the ICAO Assembly in advance of the November meeting that a resolution condemning the EU's emissions scheme is unlikely to carry much weight with the Europeans. Multilateral approval of adding emissions standards to the Chicago Convention annexes or some kind of brokered agreement between members will likely be necessary to alter the EU's plans.
Edited for clarity 10/19.