Emissions trading as a market-based option in air transport - Contractual issues

Environmental Policy and Law

Volumn 29, Issue 5, 1999, Pages 226-235

  Abeyratne, Ruwantissa I R ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

AIR TRANSPORTATION; AIRCRAFT EMISSION; ECONOMIC INSTRUMENT; EMISSIONS TRADING;

EID: 0033501481     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. See Ozone Science News, The Newsletter of the UNEPIE OzoneAction Programme, Number 26, April, 1998 at p. 7.
2. Ibid.
3. See A New Threat, Acid News 2, June 1997 at p. 15. In 1997 four European airlines launched a programme to measure ozone levels during flights to assess the impact of pollution on the environment. Air letter, Wednesday, 13 August 1997, No. 13, 805, p. 2.
4. Ibid.
5. Scientist David Fahey believes that aerosols of aircraft plumes could form the complex chemistry required for cirrus clouds. See Fred Pearce, Aircraft Wreck Havoc on Ozone Layer, New Scientist, 15 February 1997, at p. 18.
6. Another significant project carried out in Europe was the AERONOX project of the European Union which was in three stages: 1. The first stage calculated an exact worldwide inventory of aircraft emissions; 2. The second stage examined how the pollutants in the exhaust plume change from immediately after their emission from the engine until they reach a "stable" condition; 3. The third stage calculated the probable effects by means of models on the diffusion in the atmosphere and on chemical and physical changes. The key focus is on the nitrogen oxide emissions and their effects on the concentra-tions of ozone at high altitudes. This project has already been concluded.
7. Martin Hindley, Emission Control, Flight International, 31 January-6 February 1996 at p. 69.
8. See Global Atmospheric Effects of Aviation, Report of the Proceedings of the Symposium, Virginia Beach, Virginia, USA, 15-19 April 1996, NASA: USA, at p. 1.
9. Ibid, p. 4.
10. (1992) 31 I.L.M.849. On the negotiations and text of the Climate Change Convention see D. Bodansky, "The United Nations Framework Convention on Climate Change: A Commentary" (1993) 18 Yale J. Int. L. 451-558. See also J. Barrett, "the Negotiation and Drafting of the Climate Change Convention", in R. Churchill and D. Freestone (Eds), International Law and Global Climate Change (1991), pp. 183-200.
11. (1992) 31 I.L.M.849. On the negotiations and text of the Climate Change Convention see D. Bodansky, "The United Nations Framework Convention on Climate Change: A Commentary" (1993) 18 Yale J. Int. L. 451-558. See also J. Barrett, "the Negotiation and Drafting of the Climate Change Convention", in R. Churchill and D. Freestone (Eds), International Law and Global Climate Change (1991), pp. 183-200.
12. Kyoto Protocol to the United Nations Framework Convention on Climate change, UN Doc. FCCC/CP/1997/L.7/Add. 1.
13. Carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride.
14. UN Environment Programme (UNEP) Press Release, 11 Dec 1997.
15. The subject of emissions-trading falls within the purview of the Intergovernmental Panel on Climate Change (IPCC), which was established in 1988 by the World Meteorological Organization and the United Nations' Environment Programme (UNEP) to assess the scientific basis and impact of climate change. The IPCC's first scientific report was published in 1990 and recommended the negotiation of a framework convention to combat global warming. The United Nations Framework Convention on Climate Change (UNFCCC) was adopted on 9 May 1992 and the treaty entered into force on 21 March 1994. This article, being a legal one, will not address details of these bodies. For an extensive treatment of the IPCC's work and the UNFCC, see Global Wanning and the Kyoto Protocol, Colin Warbrick and Dominic McGoldric ed., 47 ICLQ, April 1998 at pp. 446-462.
16. The Protocol will enter into force 90 days after "not less than 55 Parties to the [Climate Change] Convention, incorporating Parties included in Annex 1 which accounted in total for at least 55 % of the total carbon dioxide emissions for 1990 of the Parties included in Annex 1" have ratified (Art. 24 of the Protocol).
17. Id., Art. 7(1). The Secretariat is located in Bonn, Germany. Its postal address is P.O. Box 260 124, D-53153, Bonn, Germany.
18. Id., Art. 8(1).
19. Id., Art. 8 (5). When the Conference of the Parties meets as the meeting of Parties to the Protocol, those States that are party to the Convention but not to the Protocol may participate but only as non-voting observers (idem. Art. 13 (1) and (2)). Parties to the Protocol will meet annually (Art. 13 (6)) to review the implementation of the Protocol (Art. 13 (4)).
20. Id., Art. 8 (6).
21. See J.K. Parikh, Joint Implementation and North South Cooperation for Climate Change, 1995, 7 (1) International Environmental Affairs, at pp 22-41.
22. Supra, see note 25.
23. See Article 12 (3) of the Kyoto Protocol.
24. Article 8 of the Protocol.
25. Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 I.L.M. 1550. The Montreal Protocol controls gases such as chlorofluorocarbons, which not only have ozone depleting characteristics but also contribute to the greenhouse effect. The Kyoto Protocol, by explicitly excluding the Montreal Protocol's role in ICAO's mandate, has included carbon dioxide, nitrogen oxides and compounds of sulphur emissions within ICAO's purview.
26. As contained in Doc 9082 (Statements by the Council to Contracting States on Charges for Airports and Air Navigation Services) and Doc 8632 (ICAO" Policies on Taxation in the Field of International Air Transport).
27. CAEP/4, Committee on Aviation Environmental Protection, Fourth Meeting, Montreal, 6-8 April 1998, ICAO: Montreal, at p. i-8.
28. 1925 RIAA ii 615 at 641.
29. Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at 269-270.
30. Yearbook of International Law Commission 1976, VoI II Part One at 29.
31. I.C.J. Reports, 1970 at 32.
32. Report of the International Law Commission to the General Assembly on the Work of the 1st Session, AJCN.4/13, June 9 1949, at 21.
33. (1932) PCIJ, Ser. A/B No. 46 . 46 at p. 167.
34. (1931) PCIJ, Ser. A/B No. 44 at p. 20.
35. Id., at p. 24.
36. See Fitzmaurice, 92 Hague Recueil (1957, II) at 89.
37. Lavarack v Woods of Colchester, ltd. [1967] 2Q.B. 278; [1966] 3 All. E.R. 683.
38. (1854) 9 Exch. 341 at p. 354.
39. Id. at 355.
40. Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2K.B. 528.
41. See Cuddee v flutter (1720) I.P. Wms. 570 where specific performance of an agreement to transfer £1000 company stock was refused.
42. (1875) 1 CH.D. 673.
43. (1840), 3 Beav. 334.
44. 724 F.Supp.605 (S.D. Ind. 1989).
45. Carow Towing Co. v. The "Ed. McWilliams" (1919), 46 D.L.R. 506 (Ex. Ct.).
46. Entores, Ltd. v. Miles Far East Corporation, [1955] 2 All E.R. 493 (C.A.).
47. See, for example, McDonald & Sons Ltd. v. Export Packers Co. Ltd. (1979), 95 D.L.R. (3d) 174 (B.C.S.C.). See also Re Viscount Supply Co. Ltd. (1963), 40 D.L.R. (2d) 501 (Ont. S. C.); and National Bank of Canada v. Clifford Chance (1996), 30 O.R. (3d) 746 (Gen. Div.).
48. Rosenthal & Rosenthal Inc. v. Bonavista Fabrics Ltd.,[1984] C.A. 52 (Que. C.A.).
49. Balcon (Joan) Sales Inc. v. Poirier (1991), 288 A.P.R. 377 (N.S. Co. Ct.).
50. Gunac Hawkes Bay (1986) Ltd. v. Palmer, [1991] 3 N.Z.L.R. 297 (H. Ct.).
51. Brinkibon Ltd. v. Stahag Stahl and Stahlwarenhandelsgesellschaft mbH, [1982] 1 All E.R. 293 (H.L.).
52. Ibid, at 296.
53. Arrowsmith v. Ingle (1810), 3 Taunt. 234.
54. The "Pendrecht" [1980] 2 Lloyd's Rep. 56 (Q.B.).
55. McDonald and Sons Ltd. v. Export Packers Co. Ltd. (1979), 95 D.L.R. (3dl 174 (B.C.S.C.) AT 180.
56. Jenner v. Sun Oil Co. Ltd. (1952) 16 C.P.R. 87 (Ont. H.C.J.). 56 Ibid at 98-99.
57. (1984) 49 O.R. (Ed) 58 (H.C.J.).
58. (1996) 30 O.R. (3d) 746 (Gen. Div.)
59. 636 So. 2d. 1351 (Fla. App. 1994).
60. th Cir.) (Westlaw).
61. Ibid. at 268.
62. Digital Equipment Corporation v. AltaVista Technology, Inc. 960 F. Supp. 456 (D. Mass. 1997). See also Cody v. Ward, 954 F. Supp. 43 (D. Conn. 1997), where a court took jurisdiction based on telephone and e-mail communications that consummated a business relationship begun over Prodigy's "Money talk" discussion forum for financial matters. In partially justifying this decision, the court noted that the use of fax technology, and even live telephone conferences, can greatly reduce the burden of litigating out-of-state.
63. Heroes, Inc. v. Heroes Foundation, 958 F. Supp. 1 (D.D.C. 1996).
64. Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
65. Resuscitation Technologies. Inc. v. Continental Health Care Corp., 1997 WL 148567 (S.D. Ind.) Weslaw). The Court in this case was not concerned that the defendants had never visited the forum state in person and concluded at para. 5: "Neither is the matter disposed of by the fact that no defendant ever set foot in Indiana. The 'footfalls' were not physical, they were electronic. They were, nonetheless, footfalls. The level of Internet activity in this case was significant." See also EDIAS Software International, L.L.C. v. BASIS International Ltd., 947 F Supp. 413 (D. Ariz. 1996). In this case the court summed up the essence of many of the Internet jurisdiction cases by stating at 420: "BASIS [the defendant] should not be permitted to take advantage of modem technology through an Internet Web page and forum and simultaneously escape traditional notions of jurisdiction." See also Gary Scott International, Inc. v. Baroudi, 981 F. Supp. 714 (D. Mass. 1997).
66. Panavision International, L.P. v. Toeppen, 938 F. Supp. 616 (CD-Cal. 1996); above note 215; Maritz, Inc. v. CyberGold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996). In the latter case the court observed at 165: In the present case. Instruction has directed its advertising activities via the internet and its toll-free number toward not only the state of Connecticut, but to all States. The Internet as well as toll-free numbers are designed to communicate with people and their businesses in every state. Advertisement on the Internet can reach as many as 10,000 Internet users within Connecticut alone. Further, once posted on the Internet, unlike television and radio advertising, the advertisement is available continuously to any Internet user. ISI has therefore, purposefully availed itself of the privilege of doing business within Connecticut.
67. Plus System, Inc. v. New England Network, Inc., 804 F. Supp. III (D. Colo. 1992).
68. 585 N.Y.S. 2d. 661 (Supp. 1992).