Friday, November 11, 2011
Wednesday, November 9, 2011
Blog readers interested in an interpretation of international law that is more favorable to the EU's emissions plan may want to read Kati Kulovesi's 'Make Your Own Special Song Even if Nobody Else Sings Along': International Aviation Emissions and the EU Emissions Trading Scheme (Nov. 4, 2011) (available from SSRN here). From the abstract:
This article focuses on the escalating international row over the decision by the European Union to include aviation emissions in its Emissions Trading Scheme from 2012 onwards. The main point of controversy is that the ETS will apply to foreign airlines to the extent they operate flights to and from EU airports. The article sheds light on the background of the dispute by providing an overview of the slow progress on aviation emissions under the UNFCCC and the International Civil Aviation Organization. It describes the main features of the EU scheme and discusses the pending request for a preliminary ruling from the Court of Justice of the European Union concerning the compatibility of the ETS with international law. The article concludes that there is a good case to be made for the legal design of the EU’s scheme for aviation emissions under international law. Furthermore, from a climate-policy perspective, the scheme can be seen as a necessary first step towards controlling rapidly growing aviation emissions. At the same time, the continuing global impasse on climate change mitigation raises concerns over fragmentation of climate change law and the spread of unilateral climate policies and retaliatory measures.
Tuesday, November 8, 2011
China Air Transport Association (CATA) Deputy Secretary General Chai Haibo indicated Monday that the CATA and multiple Chinese carriers were planning to file a lawsuit challenging the EU's plan to incorporate foreign carriers into the ETS. See Zhang Xiang, China Urges EU to Drop Aviation Emission Scheme, Lawsuit Looms, Xinhua News, Nov. 8, 2011 (available here). It is unclear where this legal challenge would be filed or whether it would include legal claims distinct from those brought by the American carriers in their suit before the ECJ. The article also includes the following paragraph:
The emission charges should not be imposed on airlines but on European and U.S. companies which supply most of the engines used on major airlines' planes, as engines are the real culprits for carbon emissions, Zhang Hongbiao, an official in charge of technologies with Aviation Industry Corporation of China, told the China Economic Weekly.
The quote suggests China's opposition to extraterritorial regulations would not extend to regulations applied only to its primary manufacturing competitors. China is like most of the actors in this ETS drama in that its commitment to international law principles arguably might seem to vary in proportion to the anticipated impact on its domestic economic interests, but a successful international law regime requires consistent adherence to the principles enshrined in its treaties.
Monday, November 7, 2011
Blog readers interested in the latest on the ETS controversy should read today's article at Air Transport World. See Karen Walker, EU MP: Europe Will Not Back Down on ETS, Air Transport World, Nov. 7, 2011 (available here). The story quotes European Parliament Transport Committee chairman Brian Simpson, speaking at the 55th annual meeting of the Association of Asia Pacific Airlines, who makes three provocative assertions. First, he states that many EU governments view the ETS as a potential revenue source, which would belie Advocate General Juliane Kokott's characterization of the regulation as distinct from a tax, and would strengthen ETS opponents' argument that the ETS violates the Chicago Convention. Second, Simpson says that he has suggested a compromise limiting application of the emissions regulation to only the portion of flights by non-EU carriers that is conducted in EU airspace. The proposed compromise would be effective for two years while ICAO worked to facilitate a global emissions agreement. This compromise would put the ETS on much sounder legal footing by limiting regulation to EU airspace where the EU's authority to regulate is much clearer. Though, if what Simpson says about the ETS as a revenue-generating mechanism is true, even applied just to EU airspace the ETS could presumably be considered a tax in violation of Article 15 of the Chicago Convention. Finally, according to Simpson, his compromise has been rejected by EU leaders because they anticipate that other nations, aside from the U.S., will capitulate and comply with the ETS when it enters effect January 1. This suggests that EU leaders are willing to undertake a trade war if the U.S. is the only holdout.