The legality of the EU's stand-alone approach to the climate impact of aviation: The express role given to the ICAO by the Kyoto protocol

Review of European Community and International Environmental Law

Volumn 17, Issue 2, 2008, Pages 196-204

  Petersen, Malte ^a  

^a UNIVERSITY OF BONN   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; EMISSIONS TRADING; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLITICS; EUROPEAN UNION; INTERNATIONAL AGREEMENT; KYOTO PROTOCOL;

EURASIA; EUROPE;

EID: 49349086611     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2008.00596.x     Document Type: Review

References (75)

1. For an overview of the greenhouse effect and the relation between the increase in greenhouse gases and alterations of climate, see, for example, R. Abeyratne, 'Emissions Trading - Recommendations of CAEP/7 and the European Perspective', 32:4-5 Air and Space Law (2007), at 359.
2. For more information on the effects of aircraft on the climate and the atmospheric ozone, see J.E. Penner et al., Aviation and the global atmosphere (Cambridge University Press, 1999).
3. See also CE Delft, Giving wings to emission trading: Inclusion of aviation under the European emission trading system (ETS): Design and impacts (CE Delft, 2005), at 25.
4. Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11 December 1997).
5. Communication from the Commission, 'Reducing the Climate Change Impact of Aviation', COM (2005) 459 final, at 2.
6. United Nations Framework Convention on Climate Change (New York, 9 May 1992).
7. The provisions are looked at in detail in the text under the 'UNFCCC' heading below.
8. For more details, see text under the' Kyoto Protocol' heading below.
9. In its communication' Air Transport and the Environment, Towards Meeting the Challenges of Sustainable Development', COM (1999) 640 final, the European Commission proposed examining the use of market-based instruments and emissions trading as possible options for an EU solution to curb rising emissions from aviation.
10. CE Delft - founded as Centrum voor Energiebesparing (Center for Energy Conservation) - is an independent research and consultancy organization based in the Netherlands specializing in developing solutions to environmental problems.
11. See CE Delft, n. 2 above. It was published in July 2005.
12. See Communication from the Commission, n. 4 above, at 10.
13. See also, G.H. Kelly,' An Evaluation of the European Union's Emissions Trading Scheme in Practice', 15:6 European Environmental Law Review (2006), at 183.
14. Proposal for a Directive to the European Parliament and the Council amending Directive 2003/87/EC so as to include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading within the Community, COM (2006) 818 final.
15. An overview of the latest developments, as well as stakeholder positions and links to the most important documents, can be found in'Aviation and Emissions Trading', EurActiv (12 October 2007), available at: .
16. See further discussion, as well as the written statement of reservation on behalf of the Member States of the EC and the other States members of the European Civil Aviation Conference (ECAC), in' EU slams ICAO inaction on aviation emissions', EurActiv (12 October 2007), available at: .
17. 'Inclusion of Aviation Activities in the EU ETS', Council of the European Union, Press Release, 2842nd Council Meeting (16183/07 (Presse 286) 20 December 2007), at 9.
18. Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2006 establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and amending Council Directive 96/61, [2003] OJ L275/32.
19. For a broad overview of the development of emissions allowance trading in the EU, see L. Krämer, EC Environmental Law, 5th edn (Sweet and Maxwell, 2003), at 304
20. J. Lefevere,'The EU Greenhouse Gas Emission Allowance Trading Scheme', in F. Yamin (ed.), Climate Change and Carbon Markets: A Handbook of Emissions Reduction Mechanisms (Earthscan, 2005), at 95-101.
21. 2 emissions trading with the possible extension to other greenhouse gases'.
22. See also, G.H. Kelly, n. 11 above, at 175.
23. Road transport is covered by excise taxes, unlike aviation, while rail travel is indirectly covered by the EU ETS through its use of electricity.
24. See D. Meadows, 'The Emissions Allowance Trading Directive 2003/87/EC explained', in J. Delbeke (ed.), EU Energy Law, Volume IV: EU Environmental Law: The EU Greenhouse Gas Emissions Trading Scheme (Claeys and Casteels, 2006), at 113.
25. Directive 2004/101/EC of the European Parliament and of the Council of 27 October 2004 amending Directive 2003/87/EC establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community, in Respect of the Kyoto Protocol's Project Mechanisms, [2004] OJ L338/18.
26. For further information about the Linking Directive and in particular the Clean Development Mechanism, see B. Brattig, 'Die Zukunft des europäischen und internationalen Emissionshandels', ZUR Sonderheft (2004), 414
27. J. Lefevere, 'The EU ETS "Linking Directive" explained', in J. Delbeke (ed.), n. 20 above, at 117-151.
28. R. Geiger stressed that in the context of Community environment policy, it is acknowledged that the Community should make use of market-based measures and instruments. See R. Geiger, EUV/EGV - Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft, 4th edn (C.H. Beck, 2004), Article 174, EGV Rdnr. 3. This is of particular interest for emission trading.
29. See Sixth Community Environment Action Programme, n. 18 above, Article 2(2). Particularly with regard to the reduction of greenhouse gases, the programme states that environmental action is needed at an international level. Also see recitals 1, 6 and 30.
30. The European Court of Justice (ECJ) has dealt with the differentiation between Article 175 and Article 133 of the EC Treaty with respect to trade agreements with environmental relevance on several occasions. See, for example, ECJ Case C-281/01, Commission v. Council, ECR (2002) I-12049.
31. See CE Delft, n. 2 above, at 173
32. and see A. Hardeman, 'A Common Approach to Aviation Emissions Trading', 32:1 Air and Space Law (2007), at 18
33. and G. Schwarze, 'Including Aviation into the European Union's Emissions Trading Scheme', 16:1 European Environmental Law Review (2007), at 12.
34. For further information about distinguishing between Article 175 and Article 133 of the EC Treaty and with reference to the jurisdiction of the ECJ,
35. see C. Calliess,'Annotations to Article 175 EC Treaty', in C. Calliess and M. Ruffert (ed.), EUV/EGV - Das Verfassungsrecht der Europäischen Union mit Europäischer Grundrechtecharta, Kommentar, 3rd edn (C.H. Beck, 2007), Article 175 Rdnr. 18-20.
36. This principle is likewise relevant if the EU Member States adopt measures in the EU covering the EU territory.
37. I. Brownlie, Principles of Public International Law, 6th edn (Oxford University Press, 2003), at 115.
38. See P. Sands, Principles of International Environmental Law, 2nd edn (Cambridge University Press, 2003), at 236.
39. Convention on International Civil Aviation (Chicago, 7 December 1944).
40. For an overview of objectives, principles and commitments in the UNFCCC
41. see P.W. Birnie and A.E. Boyle, International Law and the Environment, 2nd edn (Oxford University Press, 2002), at 524-526.
42. Article 4(2) of the UNFCCC stipulates: 'These Parties may implement such policies and measures jointly with other Parties and may assist other Parties in contributing to the achievement of the objective of the Convention and, in particular, that of this subparagraph'.
43. R. Baron and M. Colombier refer to the possibility for countries to achieve their emission commitments jointly, as foreseen in the UNFCCC, as 'a direct reference to what would later become emissions trading'.
44. See R. Baron and M. Colombier, 'Emissions Trading under the Kyoto Protocol: How far from the Ideal?', in F. Yamin (ed.), n. 17 above, at 154.
45. For general information see, F. Yamin, 'The International Rules on the Kyoto Mechanisms', in F. Yamin (ed.), ibid., at 1-73.
46. See CE Delft, n. 2 above, at 176
47. and G. Schwarze, n. 26 above, at 13.
48. CE Delft, ibid., at 177.
49. Also see A. Hardeman, n. 26 above, at 13
50. G. Schwarze, n. 26 above, at 14. A. Hardeman describes the emission reduction requirement that would be applied to operators as'an operational standard of an environmental nature'.
51. Finally, even if the emission trading system would fall under the scope of Article 15 of the Chicago Convention, this would merely constitute a prohibition of discrimination, and not a basic obstacle to the inclusion of aviation in the EU ETS.
52. Regarding the scope, the following main scenarios are under discussion to be included in the EU ETS: All intra-EU flights; all arrivals to the EU (fuel burn over EU airspace only); all departures from the EU (fuel burn over EU airspace only); all arrivals and departures from the EU (fuel burn over EU airspace only); all arrivals to the EU (fuel burn over entire flight); all departures from the EU (fuel burn over entire flight); and all arrivals and departures from the EU (fuel burn over entire flight). For more information see G. Schwarze, n. 26 above, at 15.
53. For more information about this discussion, see U.M. Erling, 'Die Einbeziehung des Luftverkehrs in den EU-Emissionshandel', 1 Umwelt- und Planungsrecht (UPR) 2006, 7.
54. There are several possible options under discussion to avoid the problems that could arise if international aviation is included in the EU ETS. First, the scope of the Kyoto Protocol could be extended. A second option would be to borrow Assigned Amount Units (AAUs) from sectors that are not covered by the EU ETS. Another option would be to allocate no allowances to the aviation sector and force the sector to buy allowances for its emissions. Finally, the aviation sector could be allocated allowances that were not earmarked as AAUs but restrict trade from the aviation sector to stationary sources. See, for further reference, CE Delft, n. 2 above, at 75-84.
55. Further information about the legal questions related to the design of the proposed regime can be found at CE Delft, ibid.
56. G. Schwarze, n. 26 above, at 15-22
57. and U.M. Erling, n. 41 above, at 6-7.
58. The French version states '...en passant par l'intermédiaire de l'Organisation de...'.
59. The Spanish version states '... trabajando por conducto...'.
60. The German version - although not one of the official UN languages - is also ambiguous. It states '...setzen ihre Bemühungen ... im Rahmen der Internationalen Zivilluftfahrt- Organisation fort'.
61. Over the years, there has been cooperation on many occasions, including participation in various meetings, data collection, assistance, etc. See, for example, Reports on Inter-Sessional Activities - Emissions Resulting from Fuel used for International Transportation FCCC/SBSTA/ 2001/INF.1, 11 July 2002); Compilation of Data on Emissions from International Aviation, Submission from the International Civil Aviation Organization, SBSTA, Twenty-second session, Bonn 26 April 2005), available at:
62. Report of the Subsidiary Body for Scientific and Technological Advice on the work of its fourth session, Geneva, 16-18 September 1996 (FCCC/SBSTA/1996/20, 18 September 1996). For further information on cooperation between ICAO and SBSTA,
63. see M. Cames and O. Deuber, Emissionshandel im internationalen zivilen Luftverkehr (Öko-Institut, 2004), at 12-16.
64. ICAO, 'Consolidated statement of continuing ICAO policies and practices related to environmental protection', Assembly Resolution A35-5 (8 October 2004).
65. For further information about CAEP/7,
66. see R. Abeyratne, n. 1 above, at 358-375.
67. CAEP was established by the ICAO Council in 1983. The Committee is composed of members and observers and assists the ICAO Council in formulating new policies.
68. The Thirty-Sixth Assembly of the International Civil Aviation Organization took place in Montreal on 28 September 2007, when the Assembly passed a resolution on the use of market-based measures, such as emissions trading, which says that ICAO members should sign individual agreements with third parties operating in its airspace before applying such schemes to them. See, for further information, 'EU slams ICAO inaction on aviation emissions', n. 14 above.
69. See Proposal for a Directive to the European Parliament and the Council, n. 12 above, Recital 4.
70. Ibid., at 3.
71. Ibid.
72. For a discussion on the continuing leadership role of the EU in the international negotiations on climate change, see Y. Slingenberg, 'The international climate change policy developments of the 1990s: The UNFCCC, the Kyoto Protocol, the Marrakech Accords and the EU ratification decision',
73. in J. Delbeke (ed.), n. 20 above, at 35.
74. For the process for aviation's inclusion in the EU ETS, see the homepage of the European Commission, DG Environment: 'Aviation and climate change' (DG Environment, undated), available at: .
75. This intention was already expressed by the European Commission in the'Questions and Answers on aviation and climate change' (MEMO/06/506, 20 December 2006), available at: .