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Volumn 36, Issue 2, 2012, Pages 351-385

Toward an international aviation emissions agreement

Author keywords

[No Author keywords available]

Indexed keywords

ATMOSPHERIC POLLUTION; CARBON DIOXIDE; CARBON EMISSION; CLIMATE CHANGE; ECONOMIC GROWTH; ENVIRONMENTAL IMPACT; GREENHOUSE GAS; HUMAN ACTIVITY; ORGANIZATIONAL FRAMEWORK;

EID: 84877702751     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review
Times cited : (15)

References (148)
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    • The IPCC has scheduled the release of its next inclusive report for 2014
    • see IPCC, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY (Martin Parry et al. eds., 2007), available at http://www.ipcc.ch/publications- and-data/ar4/wg2/en/contents.html. The IPCC has scheduled the release of its next inclusive report for 2014.
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    • As a political matter, and in order to support its exposition of a multilateral response, this Article assumes that the IPCC's conclusions are correct: that global warming is a real phenomenon; that projected temperature increases are likely to have detrimental, if not catastrophic, effects on many countries in the world in the decades to come; and that these outcomes are due to anthropogenic greenhouse gas emissions. See generally IPCC, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS (Susan Solomon et al. eds., 2007), available at http://www.ipcc.ch/publications-and-data/publications-ipcc-fourth-assessment- report-wg1-report-the-physical-science-basis.htm.
    • (2007) IPCC, Climate Change 2007: The Physical Science Basis
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    • Backgrounder: Deforestation and greenhouse-gas emissions
    • Dec. 21
    • Though the problem is noticeably exacerbated by deforestation, see Toni Johnson, Backgrounder: Deforestation and Greenhouse-Gas Emissions, COUNCIL ON FOREIGN RELATIONS (Dec. 21, 2009), http://www.cfr.org/publication/14919/ deforestation-and-greenhousegas-emissions.html, and modern agricultural and land-use processes
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    • 0003564167 scopus 로고    scopus 로고
    • see IPCC, SPECIAL REPORT ON EMISSIONS SCENARIOS 141-45 (2000), industrial emissions have driven the worldwide public debate concerning what (if anything) should be done to offset the environmental harm wrought by humanity. And while future negotiations for a comprehensive climate treaty cannot ignore any of the measurable contributors to global warming, we expect that more immediate attention will be paid to the manufacturing andservice (specifically transport) sectors that have a more visible role in emitting greenhouse gases.
    • (2000) IPCC, Special Report on Emissions Scenarios , pp. 141-145
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    • United nations framework convention on climate change
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    • See United Nations Framework Convention on Climate Change, opened for signature May 9, 1992, 1771 U.N.T.S. 107.
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    • 84897930486 scopus 로고    scopus 로고
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • See ICAO, http://www.icao.int (last visited June 14, 2012) (on file with the Harvard Law School Library). For a detailed discussion of ICAO's history, organizational structure, and functions
    • ICAO
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    • Convention on international civil aviation
    • Dec. 7, 15 U.N.T.S. [hereinafter Chicago Convention]
    • See Convention on International Civil Aviation, opened for signature Dec. 7, 1944, 15 U.N.T.S. 295 [hereinafter Chicago Convention].
    • (1944) Opened for Signature , pp. 295
  • 14
    • 84897951520 scopus 로고    scopus 로고
    • Cancun climate change conference- november 2010
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • These stages in the negotiating process failed to achieve consensus on specific reduction targets. For a full archive of videos, documents, and other statements released during the 16th Conference of the Parties to the UNFCCC, see Cancun Climate Change Conference-November 2010, UNFCCC, http://unfccc.int/ meetings/cop-16/items/5571.php (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • UNFCCC
  • 15
    • 84897945283 scopus 로고    scopus 로고
    • Establishment of an ad hoc working group on the durban platform for enhanced action
    • Dec.
    • See Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Draft Decision-/CP.17 (Dec. 2011), available at http://unfccc.int/files/meetings/durban-nov-2011/decisions/application/pdf/ cop17-durbanplatform.pdf. While Durban promises a comprehensive climate change treaty to be completed by 2015, the proposed accord would not come into effect any sooner than 2020.
    • (2011) Draft Decision-/CP.17
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    • 84897942974 scopus 로고    scopus 로고
    • Why a climate treaty is impossible
    • Aug. 24
    • See, e.g., William Yeatman, Why a Climate Treaty is Impossible, GLOBALWARMING. ORG (Aug. 24, 2009), http://www.globalwarming.org/2009/08/24/why- a-climate-treaty-isimpossible
    • (2009) Globalwarming. ORG
    • Yeatman, W.1
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    • 84866491700 scopus 로고    scopus 로고
    • International climate treaties: The case for pessimism
    • Others, however, hold out hope
    • see also Ole Røgeberg et al., International Climate Treaties: The Case for Pessimism, 1 CLIMATE L. 177 (2010). Others, however, hold out hope.
    • (2010) Climate L. 177 , vol.1
    • Røgeberg, O.1
  • 19
    • 47749083114 scopus 로고    scopus 로고
    • Climate change justice
    • Such a treaty, presumably, would require consensus on apportioning the burdens of greenhouse gas reduction across the world's 194 states. Regions facing the greatest economic, ecological, and social harms from rising temperatures-for example, Africa and Southern Asia-are the least likely to accept onerous ex ante obligations to reduce emissions for ex post benefits. Rising powerhouses like China, Brazil, and Russia are also reluctant to assume emissions reduction obligations and have even advanced a doctrine- "common but differentiated responsibilities"-holding that the common goal of overcoming climate change must also recognize that nations such as the United States and the members of the European Union should bear much greater reduction costs because of their history of atmospheric pollution since the Industrial Revolution. Eric A. Posner &Cass R. Sunstein, Climate Change Justice, 96 GEO. L.J. 1565, 1583-1602 (2008). Embedded in this doctrine is a claim for reparations to be paid by historical polluters to current or potential victims of global warming. This Article does not address further whether any climate change treaty ought to address the politically contentious demands of distributive justice.
    • (2008) GEO. L.J. 1565 , vol.96 , pp. 1583-1602
    • Posner, E.A.1    Sunstein, C.R.2
  • 20
    • 84897934402 scopus 로고    scopus 로고
    • Economic transfer arguments of this kind are powerfully criticized
    • Economic transfer arguments of this kind are powerfully criticized in Posner and Sunstein's Climate Change Justice. Id. For detailed discussion of the geopolitical divisions identified here, along with critical commentary
    • Posner and Sunstein's Climate Change Justice
  • 21
    • 84897950121 scopus 로고    scopus 로고
    • Responses to global warming: The law, economics, and science of climate change
    • see Symposium, Responses to Global Warming: The Law, Economics, and Science of Climate Change, 155 U. PA. L. REV. 1353 (2007).
    • (2007) U. PA. L. REV. 1353 , vol.155
  • 22
    • 33846200646 scopus 로고    scopus 로고
    • By this we mean a system where a governmental authority establishes a ceiling on the amount of carbon a particular industrial sector (or sectors) may release during a specified period of time. Firms within the capped industry are then allocated a set number of discharge permits or credits which they are then free to trade in a secondary market to other firms seeking to emit beyond their allotted permits. Such schemes may allow for either "open trading" whereby firms across multiple capped industries may engage in cross-sectoral trading or "closed" whereby firms are limited to intra-sectoral trading. See generally THOMAS H. TIETENBERG, EMISSIONS TRADING: PRINCIPLES AND PRACTICE (2006).
    • (2006) Emissions Trading: Principles and Practice
    • Thomas, H.T.1
  • 24
    • 84897932620 scopus 로고    scopus 로고
    • ICAO Doc. 9902
    • compiled in Assembly Resolutions in Force, at I-54, ICAO Doc. 9902 (2007) [hereinafter Assembly Resolution A36/ 22]. ICAO remains wedded to the idea of creating a multilateral carbon-trading market for aviation, though for reasons discussed in Part II, infra, we are skeptical of its prospects.
    • (2007) Compiled in Assembly Resolutions in Force
  • 25
    • 84897943440 scopus 로고    scopus 로고
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • See IATA, http://www.iata.org (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • IATA
  • 26
    • 84882621309 scopus 로고    scopus 로고
    • International air transport association
    • Christian Tietje &Alan Brouder eds
    • For more on IATA see Brian F. Havel &Gabriel S. Sanchez, International Air Transport Association, in HANDBOOK OF TRANSNATIONAL ECONOMIC GOVERNANCE REGIMES 755, 755-64 (Christian Tietje &Alan Brouder eds., 2009).
    • (2009) Handbook of Transnational Economic Governance Regimes , vol.755 , pp. 755-764
    • Havel, B.F.1    Sanchez, G.S.2
  • 28
    • 84870212621 scopus 로고    scopus 로고
    • ICAO, Assemb. Res. A-37/19 compiled in Resolutions Adopted by the Assembly: Provisional Edition, ¶ 4, [hereinafter Assembly Resolution A-37/19]
    • Consistent with our strictly "political" view of global warming, see supra note 4, we need not consider whether the reduction benchmarks established by IATA in 2009, or ICAO's more modest 2010 pledge for a two percent annual fuel efficiency improvement through 2050, could either meet or exceed an optimal level for capping aviation emissions proportionate to the industry's contribution to global warming. ICAO, Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection-Climate Change, Assemb. Res. A-37/19, compiled in Resolutions Adopted by the Assembly: Provisional Edition, at 58, ¶ 4 (2010) [hereinafter Assembly Resolution A-37/19].
    • (2010) Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection-Climate Change , pp. 58
  • 29
    • 84897930377 scopus 로고    scopus 로고
    • Air transport and the eu's emissions trading scheme: Issues and arguments
    • See generally Martin Staniland, Air Transport and the EU's Emissions Trading Scheme: Issues and Arguments, 8 ISSUES AVIATION L. &POL'Y 153 (2009). For more on opposition to the application of the ETS to non-EU airlines, see infra Part I.B. 18 The latest estimates on aviation's contribution to climate change indicate that approximately three percent of world carbon emissions are attributable to the sector. When other greenhouse gases are measured, however, air transport is apportioned six percent of the blame.
    • (2009) Issues Aviation L. &POL'Y 153 , vol.8
    • Staniland, M.1
  • 30
    • 71549114538 scopus 로고    scopus 로고
    • Climate change and the contribution of transport: Basic facts and the role of aviation
    • Werner Rothengatter, Climate Change and the Contribution of Transport: Basic Facts and the Role of Aviation, 15 TRANSP. RESEARCH PART D 5, 11 (2010).
    • (2010) Transp. Research Part D 5 , vol.15 , pp. 11
    • Rothengatter, W.1
  • 31
    • 72949114891 scopus 로고    scopus 로고
    • Scenarios of carbon dioxide emissions from aviation
    • But see Karen Mayor &Richard S.J. Tol, Scenarios of Carbon Dioxide Emissions From Aviation, 20 GLOBAL ENV'T CHANGE 65, 65 (2010) (stating that aviation accounts for only three percent of global emissions). There is considerable disagreement about how to measure aviation's impact on the earth's atmosphere, although it does appear that estimates which only assess air transport's "carbon footprint" and overlook the detrimental effects of other aircraft emissions do not provide a fully accurate picture. Cf.
    • (2010) Global Env't Change 65 , vol.20 , pp. 65
    • Mayor, K.1    Tol, J.R.S.2
  • 33
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    • 2035: A vision
    • Dec. present air transport as a not insignificant contributor to global warming.
    • Commentators worry that the sizeable increases in aviation emissions since the 1990s, see Rothengatter, supra note 18, at 11, coupled with the sector's projected growth in the coming decades, see 2035: A Vision, AIRLINE BUS., Dec. 2010, at 90, present air transport as a not insignificant contributor to global warming.
    • (2010) Airline Bus. , pp. 90
  • 34
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    • Emissions from aviation- battle lines are drawn
    • June 23, (3:40 PM)
    • See Steve Hucklesby, Emissions From Aviation-Battle Lines Are Drawn, PRAXIS (June 23, 2011, 3:40 PM), http://jointpublicissues.blogspot.com/2011/06/ emissions-fromaviation-battle-lines.html ("UK churches and many church members have called for emissions from international aviation and shipping to be taken into account in international targets.").
    • (2011) Praxis
    • Hucklesby, S.1
  • 35
    • 84897944985 scopus 로고    scopus 로고
    • discussing the singular role of aviation in the global economy
    • See IATA, supra note 16, at 6. It might be contended that one of the virtues of a multisectoral agreement is that objective benchmarks could be set without paying heed to special interest squabbling. But it is also true that international aviation, an industry almost uniquely susceptible to exogenous shocks, remains more economically fragile than more geographically "fixed" industries (coal power generation, for example). It is also true that a "one size fits all" approach in an industry like aviation-which has significant collateral effects on most national economies and the functioning of the world trade system-could also inflict undue harm on other significant sectors (intermodal travel and tourism, for example). See generally OXFORD ECON., AVIATION: THE REAL WORLD WIDE WEB (2009) (discussing the singular role of aviation in the global economy).
    • (2009) Oxford Econ., Aviation: The Real World Wide Web
  • 36
    • 84897938151 scopus 로고    scopus 로고
    • 7th ed.
    • The industry could also use its embrace of MBMs to spur governments toward a "holistic" policy for emissions reduction for this sector. For example, although there are ideological and political differences over public funding for infrastructure and research and development that primarily benefit private market actors, see, e.g., CATO INST., CATO HANDBOOK FOR POLICYMAKERS 75-76 (7th ed. 2008) (suggesting that airports and air traffic management services should be privatized), many industry stakeholders believe that governments, not airlines, bear responsibility for air routing inefficiencies (and emissions) that result from antiquated air traffic management systems
    • (2008) Cato Inst., Cato Handbook for Policymakers , pp. 75-76
  • 38
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    • Impact of congestion on taxi times, fuel burn, and emissions at major airports
    • see generally Ioannis Simaiakis &Hamsa Balakrishnan, Impact of Congestion on Taxi Times, Fuel Burn, and Emissions at Major Airports, 2184 TRANSP. RESEARCH REC. 22 (2010); and deficient public research and development programs in "green" technologies for transport (including biofuels).
    • (2010) Transp. Research Rec. 22 , vol.2184
    • Simaiakis, I.1    Balakrishnan, H.2
  • 39
    • 78049373703 scopus 로고    scopus 로고
    • Aviation industry-mitigating climate change impacts through technology and policy
    • For further discussion on how to create a "greener" air transport industry, see Sam Capoccitti et al., Aviation Industry-Mitigating Climate Change Impacts Through Technology and Policy, 5 J. TECH. MGMT. &INNOVATION 66, 69-73 (2010)
    • (2010) J. Tech. Mgmt. &Innovation 66 , vol.5 , pp. 69-73
    • Capoccitti, S.1
  • 40
    • 77950861246 scopus 로고    scopus 로고
    • A post-carbon aviation future: Airports and the transition to a cleaner aviation sector
    • Robbert Kivits et al., A Post-Carbon Aviation Future: Airports and the Transition to a Cleaner Aviation Sector, 42 FUTURES 199 (2010).
    • (2010) Futures 199 , vol.42
    • Kivits, R.1
  • 41
    • 84897947037 scopus 로고    scopus 로고
    • Members and observers
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • This incremental approach to global cooperation is not an unprecedented venture in the realm of international law. The original General Agreement on Tariffs and Trade had 23 state parties in 1947, expanding to 128 in 1994 when it was succeeded by the World Trade Organization ("WTO"). Since 1994, the Organization's membership has expanded to 155 states. See Members and Observers, WTO, http://www.wto.org/english/thewto-e/whatis-e/tif-e/org6-e.htm (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • WTO
  • 42
    • 84897950395 scopus 로고    scopus 로고
    • U.S.-EU Apr. 30, 46 I.L.M. 470 [hereinafter U.S.-EU Agreement]
    • See Air Transport Agreement, U.S.-EU, Apr. 30, 2007, 46 I.L.M. 470 [hereinafter U.S.-EU Agreement].
    • (2007) Air Transport Agreement
  • 43
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    • U.S.-EU, Mar. 25, 2010 O.J. (L 223), [hereinafter U.S.-EU Protocol]
    • as amended by Protocol to Amend the Air Transport Agreement, U.S.-EU, Mar. 25, 2010, 2010 O.J. (L 223) 3 [hereinafter U.S.-EU Protocol].
    • (2010) Protocol to Amend the Air Transport Agreement , pp. 3
  • 44
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    • Do we need a new chicago convention?
    • For another application of this principle to international aviation, see Brian F. Havel &Gabriel S. Sanchez, Do We Need a New Chicago Convention?, 11 ISSUES AVIATION L. &POL'Y 7 (2011).
    • (2011) Issues Aviation L. &POL'Y 7 , vol.11
    • Havel, B.F.1    Sanchez, G.S.2
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    • RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 206(a) (1987). "Incontrovertibility" here does not imply a repackaging of the well-traveled doctrine of jus cogens. Rather, we are suggesting only that sovereignty is common ground shaping theories of international law across multiple jurisdictions.
    • (1987) Restatement (Third) of Foreign Relations Law of the United States § 206(a)
  • 46
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    • Universal exceptionalism in international law
    • See generally Anu Bradford &Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L.J. 1 (2011).
    • (2011) Harv. INT'L L.J. 1 , vol.52
    • Bradford, A.1    Posner, E.A.2
  • 48
    • 84897934710 scopus 로고    scopus 로고
    • Convention on international civil aviation-doc 7300
    • See Convention on International Civil Aviation-Doc 7300, ICAO, http://www.icao.int/publications/Pages/doc7300.aspx (follow " Status" hyperlink) (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • ICAO
  • 49
    • 84897939149 scopus 로고    scopus 로고
    • Civil aircraft emissions and international treaty law
    • See Heather Miller, Civil Aircraft Emissions and International Treaty Law, 63 J. AIR L. &COM. 697, 714 (1998). In addition to its weak regulation of gas discharges, Annex 16 mandates that aircraft engines must be built to prevent liquid fuel expulsions during operation ("fuel venting"). Id. at 713.
    • (1998) J. AIR L. &COM. 697 , vol.63 , pp. 714
    • Miller, H.1
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    • supra note 8
    • See Chicago Convention, supra note 8, art. 37.
    • Chicago Convention , pp. 37
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    • supra note 8
    • See Chicago Convention, supra note 8, art. 38.
    • Chicago Convention , pp. 38
  • 52
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    • The impotence of the chicago convention's dispute settlement provisions
    • See id. art. 84. In fact, the Chicago Convention's dispute settlement provisions lack the sophistication of the WTO Dispute Settlement Body or the International Tribunal for the Law of the Sea. See Gabriel S. Sanchez, The Impotence of the Chicago Convention's Dispute Settlement Provisions, 10 ISSUES AVIATION L. &POL'Y 27 (2010).
    • (2010) Issues Aviation L. &POL'Y 27 , vol.10
    • Gabriel, S.S.1
  • 53
    • 84897951152 scopus 로고    scopus 로고
    • Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 2(2), opened for signature Dec. 11, 1997, 37 I.L.M. 22. The Protocol makes a distinction between Annex I and II Parties which commit to reduce greenhouse gas emissions, and non-Annex Parties comprising developing countries that are not directed to make any emissions reduction commitments unless they volunteer to join Annex I. Application of the doctrine of common but differentiated responsibilities, see supra note 12, means that three of the world's leading greenhouse gas emitters-China, India, and Brazil-are not Annex I Parties. See LARRY PARKER &JOHN BLODGETT CONG. RESEARCH SERV. RL 32721 GREENHOUSE GAS EMISSIONS: PERSPECTIVES ON THE TOP 20 EMITTERS AND DEVELOPED VERSUS DEVELOPING NATIONS 14 (2008).
    • (2008) Research SERV. RL 32721 Greenhouse Gas Emissions: Perspectives on the Top 20 Emitters and Developed Versus Developing Nations , vol.14
    • Parker, L.1    Blodgett Cong, J.2
  • 54
    • 84897952759 scopus 로고    scopus 로고
    • ICAO assembly
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • The ICAO triennial Assemblies are made up of delegates from all of the Chicago Convention's state parties. In addition to hosting special working groups on pressing air transport issues, the Assembly typically results in non-binding resolutions which can be interpreted as signaling global attitudes on a range of issues, from aviation and climate change to counterterrorism measures. For a comprehensive overview of the last Assembly, including video and working papers, see ICAO Assembly, ICAO, http://legacy.icao.int/Assembly37 (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • ICAO
  • 55
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    • Some reflections on the relationship of treaties and soft law
    • Cf. Alan E. Boyle, Some Reflections on the Relationship of Treaties and Soft Law, 48 INT'L &COMP. L.Q. 901, 905 (1999) (describing General Assembly resolutions as a form of soft law). Some commentators, however, have noted that "[m]any (and perhaps most) agreements between nations" take the form of soft law.
    • (1999) INT'L &Comp. L.Q. 901 , vol.48 , pp. 905
    • Alan, E.B.1
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    • 72549100845 scopus 로고    scopus 로고
    • International agreements: A rational choice approach
    • Jack L. Goldsmith &Eric A. Posner, International Agreements: A Rational Choice Approach, 44 VA. J. INT'L L. 113, 114 (2003). Others have found that soft law possesses some utility for states wishing to solve, for instance, straightforward coordination problems.
    • (2003) VA. J. INT'L L. 113 , vol.44 , pp. 114
    • Goldsmith, J.L.1    Posner, E.A.2
  • 58
    • 84897942143 scopus 로고    scopus 로고
    • May 12
    • See, e.g., Assembly Resolution A37/19, supra note 16, ¶ 13. The vagueness of the Resolutions mirrors the obstacles faced by the UNFCCC drafters in aligning carbon reduction goals with the multiple geopolitical agendas of the participating states. More cynical observers would also suggest that ICAO's not-undeserved dilatory reputation makes it a congenial forumfor those states that are either resisting climate change remediation measures or prefer non-MBM approaches (such as air traffic management improvements). While the United States, for example, could fall into either of those categories, Federal Aviation Administration ("FAA") officials typically argue that non-MBMs can be more effective and will not unduly burden airlines with additional costs. See Carl Burelson, Director, FAA Office of Env't and Energy, Greening U.S. Aviation, Presentation to the ICAO Colloquium on Aviation and Climate Change (May 12, 2010), http://www.icao.int/CLQ10/Docs/Audio/0- CarlBurleson-13.mp3.
    • (2010) Director, FAA Office of Env't and Energy, Greening U.S. Aviation, Presentation to the ICAO Colloquium on Aviation and Climate Change
    • Burelson, C.1
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    • supra note 16, annex
    • See Assembly Resolution A-37/19, supra note 16, annex.
    • Assembly Resolution , vol.A-37 , Issue.19
  • 60
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    • supra note 14
    • Assembly Resolution A36/22, supra note 14, at I-56.
    • Assembly Resolution , vol.A36 , Issue.22
  • 61
    • 84897938348 scopus 로고    scopus 로고
    • Id. app. A, at A-1
    • Portugal, acting on behalf of the EU member states and the members of the European Civil Aviation Conference, entered a reservation to this part of Assembly Resolution A36/22. Id. app. A, at A-1; see also infra Part I.B-C (discussing the legal and policy implications of the EU ETS).
    • Assembly Resolution , vol.A36 , Issue.22
  • 62
    • 84897939296 scopus 로고    scopus 로고
    • supra note 8
    • See Chicago Convention, supra note 8, arts. 37-42.
    • Chicago Convention , pp. 37-42
  • 63
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    • ICAO Policies on charges for airports and air navigation services
    • ICAO, 7th ed
    • See ICAO, ICAO Policies on Charges for Airports and Air Navigation Services, ICAO Doc. 9082/7 ¶ 8 (7th ed. 2004).
    • (2004) ICAO Doc. 9082/7 ¶ 8
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    • Council resolution on taxation of international air transport, in policies on taxation
    • ICAO, Feb. 24
    • This interpretation is supported by ICAO's own statement, in relation to Article 24 of the Convention, that customs duties levied by a state taxing authority on fuel, lubricants, or aircraft stores taken into a state via an international airline service cannot be imposed "except to the extent that they are based on the actual costs of providing airports or air navigation facilities and services and used to finance the costs of providing them[.]" ICAO, Council Resolution on Taxation of International Air Transport, in Policies on Taxation, ICAO Doc. 8632 ¶ 1(e) (Feb. 24, 1999) [hereinafter Policies on Taxation]. As the Commendutary on the Resolution, in Policies on Taxation also makes clear, the name attached to a levy (e.g., tax, charge, emissions trading) is not dispositive of its effects. See id. ¶ 5. In other words, within the Convention system, there is no such thing as a permissible tax that bears no relationship to a cost incurred for a service provided. It should be noted, however, that ICAO's self-understanding of the Chicago Convention only carries persuasive authority. Unlike the WTO, it lacks power to issue binding interpretations of its own agreements. Cf.
    • (1999) ICAO Doc. 8632 ¶ 1(e)
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    • Environmental management
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • Whether such a rational relationship can be demonstrated would seem speculative, although some airports have established abatement programs for emissions produced during take-off, landing, and taxiing operations that arguably would fall within this somewhat wider view of Article 15. See, e.g., Environmental Management, MUNICH AIRPORT, http://www.munich-airport.de/en/ company/umwelt/management/index.jsp (last visited June 14, 2012) (on file with the Harvard Law School Library). But we do not think that a more moderate interpretation would allow a generalized "environmental" tax, where emissions are targeted in gross without specific cost remediation actions. In a recent challenge to an aviation eco-tax imposed by the Dutch government, the Dutch Supreme Court conceded that a "charge" does require a consideration, but held that the final sentence of Article 15 ("in respect solely of the right of transit over or entry into or exit") does not prohibit charges that do not have a consideration, such as a "green" ticket tax. The Dutch Court, however, did not examine the broader context of how "charges" are treated in the Chicago Convention, nor ICAO's longstanding prophylactic interpretations of the Convention's provisions on taxation.
    • Munich Airport
  • 67
    • 84897931309 scopus 로고    scopus 로고
    • HR 10 juli, LJN: BI3450 (BARIN/Netherlands) (Neth.)
    • See HR 10 juli 2009, LJN: BI3450 (BARIN/Netherlands) (Neth.), available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BI3450. The authors are grateful to Niels van Antwerpen, Vice President Legal, AerCap Group Service, Schiphol Airport, for providing translation and analysis of the relevant points in the Dutch Supreme Court's ruling.
    • (2009) Vice President Legal, AerCap Group Service, Schiphol Airport
    • Van Antwerpen, N.1
  • 68
    • 84897941351 scopus 로고    scopus 로고
    • United Airlines, Inc. v. The Secretary of State for Energy and Climate Change , O.J. (C 260)
    • The suit, which was filed by a consortium of U.S. airlines in 2009, was referred by the United Kingdom in July 2010 to the Court of Justice of the European Union ("CJEU") for a preliminary ruling on certain key legal issues. See generally Reference for a Preliminary Ruling from the Queen's Bench Division (Administrative Court) of the High Court of Justice (United Kingdom) Made on 22 July 2010-The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc. v. The Secretary of State for Energy and Climate Change, 2010 O.J. (C 260) 12. In December 2011, the CJEU ruled that the application of the EU ETS to non-EU airlines is compliant with international law.
    • (2010) The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc. , pp. 12
  • 69
    • 84897937937 scopus 로고    scopus 로고
    • Air Transp. Ass'n of Am. et al. v. Sec'y of State for Energy and Climate Change Case C-366/10, Dec. 21, [hereinafter Case C-366/10]
    • See Air Transp. Ass'n of Am. et al. v. Sec'y of State for Energy and Climate Change, Case C-366/10 (Dec. 21, 2011) [hereinafter Case C-366/10], available at http://curia.europa.eu/juris/document/document.jsf?text=&docid= 117193&pageIndex=0&doclang=en&mode=doc&dir=&occ= first&part=1&cid=515524. But the Court side-stepped a direct analysis of how the Chicago Convention might affect the ETS by holding that the Convention binds only the twenty-seven EU member states and not the Union itself. Id. ¶¶ 60-71.
    • (2011) , pp. 60-71
  • 70
    • 84891805811 scopus 로고    scopus 로고
    • The triumph of politics: Reflections on the judgment of the court of justice of the european union validating the inclusion of non-EU airlines in the emissions trading scheme
    • For a detailed critique of both the Court's ruling and the prior opinion of the Advocate General that was largely followed by the Court, see Brian F. Havel &John Q. Mulligan, The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme, 37 AIR &SPACE L. 3 (2012).
    • (2012) AIR &SPACE L. 3 , vol.37
    • Havel, B.F.1    Mulligan, J.Q.2
  • 71
    • 84889004954 scopus 로고    scopus 로고
    • Is the eu's application of its emissions trading scheme to aviation illegal?
    • May
    • See Mark Bisset &Georgina Crowhurts, Is the EU's Application of its Emissions Trading Scheme to Aviation Illegal?, AIR &SPACE LAW., May 2011, at 17
    • (2011) AIR &SPACE LAW. , pp. 17
    • Bisset, M.1    Crowhurts, G.2
  • 72
    • 84897950301 scopus 로고    scopus 로고
    • supra note 8
    • see also Chicago Convention, supra note 8, art. 15 (containing the text of Article 15 in all of the Convention's official languages).
    • Chicago Convention , pp. 15
  • 73
    • 84897930178 scopus 로고    scopus 로고
    • supra note 8
    • See Chicago Convention, supra note 8, art. 15.
    • Chicago Convention , pp. 15
  • 74
    • 84897936155 scopus 로고    scopus 로고
    • opened for signature May 23, 1969, 1115 U.N.T.S
    • Vienna Convention on the Law of Treaties art. 58(1), opened for signature May 23, 1969, 1115 U.N.T.S. 331.
    • Vienna Convention on the Law of Treaties Art , vol.58 , Issue.1 , pp. 331
  • 75
    • 77955504979 scopus 로고    scopus 로고
    • supra note 28, pt. III, intro. note. 67
    • The Convention adds the caveat that suspensions must be temporary, though it fails to provide a definite timetable. Id. While Article 4 of the Convention stipulates that its provisions do not apply retroactively to treaties concluded before it entered into force in 1980, id. art. 4, the Convention is generally recognized as a codification of the customary international law rules of treaty interpretation, see RESTATEMENT (THIRD), supra note 28, pt. III, intro. note. 67.
    • Restatement (Third)
  • 77
    • 84897948338 scopus 로고    scopus 로고
    • The reason is simple: the tax would, arguably, still violate Article 15 with respect to all non-EU airlines. See supra notes 54-60 and accompanying text. 70 The EU ETS, which was launched in 2005, presently covers power stations, combustion plants, oil refineries, and iron and steel works, as well as factories making cement, glass, lime, bricks, ceramics, pulp, paper, and board. See EUROPEAN COMM'N, THE EU EMISSIONS TRADING SCHEME 13 (2009), available at http://ec.europa.eu/clima/publications/docs/ets-en.pdf.Aviation, as noted, is scheduled to be included into the system beginning in 2012. Id. For the purposes of our discussion, all references to the ETS are solely with respect to its application to the air transport sector.
    • (2009) European Comm'n, the Eu Emissions Trading Scheme , vol.13
  • 78
    • 84897936065 scopus 로고    scopus 로고
    • Flyless campaign asks: Is your journey really necessary?
    • June-July
    • One can speculate as to why the European Union pursued this course. Several factors may be at play in the Union's seeming willingness to subvert established international law principles in a paroxysm of fiat justitia, et pereat mundus ("let right be done even as the world perishes"). First, there is a widespread EU culture that vilifies aviation, which is reflected in the Aviation Environment Federation's "Flyless Campaign," see Flyless Campaign Asks: 'Is Your Journey Really Necessary?', COMMUNIQUE AIRPORT BUS., June-July 2005, at 29, and even clerical pronouncements exhorting Christians to be trustees for God's creation by avoiding short-haul flights and taking long-haul flights only sparingly, see supra note 19 and ac-companying text. Second, the ethos of the European Union has long favored social policies (like welfare rights and diversity) over trade liberalization. See Bradford &Posner, supra note 28, at 16. And finally, it may be that the Union's long experience with integration has eroded the rhetorical force of sovereignty within its borders.
    • (2005) Communique Airport Bus. , pp. 29
  • 79
    • 84897947088 scopus 로고    scopus 로고
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • The ATA has since laid claim to a more patriotic sensibility by renaming itself Airlines for America. See AIRLINES FOR AM., http://www.airlines.org (last visited June 14, 2012) (on file with the Harvard Law School Library).
    • Airlines for Am.
  • 80
    • 84897943936 scopus 로고    scopus 로고
    • ATA challenges the application of the EU ETS to U.S. Airlines
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • ATA Challenges the Application of the EU ETS to U.S. Airlines, AIR TRANSP. ASSOC., http://www.airlines.org/Pages/ATA-challenges-the-application-of- the-EU-ETS-to-U.S.-Airlines.aspx (last visited June 14, 2012) (on file with the Harvard Law School Library) (emphasis added). In its later submission on a preliminary reference on points of law made by the English High Court to the CJEU, the ATA provided a further example of a flight departing from San Francisco and landing in London. On the standard flight path, 29% of emissions occur in U.S. airspace, 37% in Canadian airspace, 25% over the high seas, and only 9% in the airspaces of EU member states. Yet 100% of the emissions are subject to the EU regulations.
    • Air Transp. Assoc.
  • 81
    • 84897951727 scopus 로고    scopus 로고
    • 3c, 2009 O.J. (L 8)
    • See Council Directive 2008/101, art. 3c, 2009 O.J. (L 8) 3 (EC). The annex of the Directive provides a list of exempted categories of air transportation, including flights with a takeoff mass of less than 5700 kilograms, flights performed under visual flight rules, flights made for official government business, and rescue flights. Council Directive 2008/101, 2009 O.J. (L 8) 17 (EC). But even with allowable exemptions, the Directive's coverage still embraces a substantial portion of all EU flight activity.
    • Council Directive 2008/101 , pp. 3
  • 82
    • 84897945556 scopus 로고    scopus 로고
    • See supra note 13 (noting the difference between "open" and "closed" carbon trading systems
    • See supra note 13 (noting the difference between "open" and "closed" carbon trading systems).
  • 83
    • 84897949825 scopus 로고    scopus 로고
    • This regulatory right extends from the Chicago Convention's recognition that all civil aircraft-the aircraft flown by private commercial airlines-"have the nationality of the State in which they are registered." Chicago Convention, supra note 8
    • This regulatory right extends from the Chicago Convention's recognition that all civil aircraft-the aircraft flown by private commercial airlines-"have the nationality of the State in which they are registered." Chicago Convention, supra note 8, art. 17.
  • 84
    • 84897937703 scopus 로고    scopus 로고
    • Routes such as the Dallas-London service mentioned supra note 73 and accompanying text
    • Routes such as the Dallas-London service mentioned supra note 73 and accompanying text.
  • 85
    • 84897953722 scopus 로고    scopus 로고
    • World's shortest scheduled flight-1:31min-guinness world record
    • Oct. 3
    • According to The Guinness Book of Records, the world's shortest commercial flight (approximately 90 seconds when conditions are suitable) is from Westray to Papa Westray in the Orkney Islands off the north coast of Scotland. See CyberTom77, World's Shortest Scheduled Flight-1:31min-Guinness World Record, YOUTUBE (Oct. 3, 2009), http://www.youtube.com/watch?v= 5NAahDr1r2E.
    • (2009) Youtube
  • 86
    • 33749550762 scopus 로고    scopus 로고
    • 2d ed
    • See DAMIAN CHALMERS ET AL., EUROPEAN UNION LAW 187-88 (2d ed. 2010). As a matter of international law, however, the United Kingdom and the twenty-six other individual EU member states remain bound by the Chicago Convention, regardless of any other conflicting transnational arrangements they have entered into.
    • (2010) European Union Law , pp. 187-188
    • Chalmers, D.1
  • 87
    • 84897936834 scopus 로고    scopus 로고
    • supra note 8
    • Chicago Convention, supra note 8, art. 12.
    • Chicago Convention , pp. 12
  • 88
    • 84897951577 scopus 로고    scopus 로고
    • The ETS arguably does have a navigational impact, since it is levied based on fuel burn and conflicts with free operational and navigational activities as aircraft conserve fuel to avoid higher emissions charges
    • The ETS arguably does have a navigational impact, since it is levied based on fuel burn and conflicts with free operational and navigational activities as aircraft conserve fuel to avoid higher emissions charges.
  • 89
    • 84897934487 scopus 로고    scopus 로고
    • See supra note 54 and accompanying text. 90 As noted, the ETS directive does not specify how the EU member states are to use revenues captured from the emissions allowance auctions. See supra note 76
    • See supra note 54 and accompanying text. 90 As noted, the ETS directive does not specify how the EU member states are to use revenues captured from the emissions allowance auctions. See supra note 76.
  • 90
    • 84897938054 scopus 로고    scopus 로고
    • Case C-366/10, Air Transp. Assoc. of Am. v. Sec'y of State for Energy and Climate Change, Oct. 6
    • See generally Case C-366/10, Air Transp. Assoc. of Am. v. Sec'y of State for Energy and Climate Change, available at http://ec.europa.eu/clima/news/docs/ 2011100601-case-c366-10-en.pdf (Oct. 6, 2011) (unpublished opinion of Advocate General Kokott). For fuller treatment of the Advocate General's views, see Havel &Mulligan, supra note 54.
    • (2011)
  • 91
    • 84897945359 scopus 로고    scopus 로고
    • Rising to the environmental challenge to aviation: The need for a global solution
    • Jan. 9
    • There is good reason to doubt that a formal ICAO challenge could, in itself, stay the European Union's regulatory hand. See Sanchez, supra note 34 (discussing the limits of dis-pute settlement under the Chicago Convention). The January 1, 2012 launch date of the ETS for aircraft emissions was entirely unaffected by the making of a formal complaint to the ICAO Council, possibly setting the stage for a formal challenge to the ETS before the Organization in accordance with Article 84 of the Chicago Convention. See Vijay Poonoosmay, Rising to the Environmental Challenge to Aviation: The Need for a Global Solution, CAPA CENTRE FOR AVIATION (Jan. 9, 2012), http://www.centreforaviation. com/analysis/rising-to-the-environmental-challenge-to-aviation-the-need-for-a- global-solution-65766.
    • (2012) Capa Centre for Aviation
    • Poonoosmay, V.1
  • 92
    • 84897947086 scopus 로고    scopus 로고
    • Jan. 10
    • See, e.g., U.S.-EU Agreement, supra note 25, art. 19. In international aviation, ASAs are the primary mechanism by which states exchange market access rights for their air carriers. Though there are literally thousands of ASAs currently in force, many with different provisions related to dispute settlement, U.S. ASAs typically rely on a mix of consultations and arbitration to resolve differences. See U.S. Dep't of State, Air Transport Agreement Between the Government of the United States of America and the Government of [Country] arts. 13-14 (Jan. 10, 2008), available at http://www.state.gov/documents/ organization/114970.pdf.
    • (2008) U.S. Dep't of State, Air Transport Agreement between the Government of the United States of America and the Government of [Country] , pp. 13-14
  • 93
    • 46649102174 scopus 로고    scopus 로고
    • Emissions trading-recommendations of caep/7 and the european perspective
    • See, e.g., Ruwantissa Abeyratne, Emissions Trading-Recommendations of CAEP/7 and the European Perspective, 32 AIR &SPACE L. 358 (2007)
    • (2007) AIR &SPACE L. 358 , vol.32
    • Abeyratne, R.1
  • 94
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    • A common approach to aviation emissions trading
    • Andreas Hardeman, A Common Approach to Aviation Emissions Trading, 32 AIR &SPACE L. 3 (2007)
    • (2007) Air &Space L. 3 , vol.32
    • Hardeman, A.1
  • 95
    • 84897930094 scopus 로고    scopus 로고
    • Overcoming the barriers to international aviation greenhouse gas emissions abatement
    • Andrew Macintosh, Overcoming the Barriers to International Aviation Greenhouse Gas Emissions Abatement, 33 AIR &SPACE L. 403 (2008).
    • (2008) Air &Space L. 403 , vol.33
    • Macintosh, A.1
  • 96
    • 84897949874 scopus 로고    scopus 로고
    • Europe's Emissions Trading System: Questioning its Raison D'être
    • For a different approach that attacks the EU ETS on economic and policy grounds, see P. Paul Fitzgerald, Europe's Emissions Trading System: Questioning its Raison D'être, 10 ISSUES AVIATION L. &POL'Y 189 (2011).
    • (2011) Issues Aviation L. &Pol'Y 189 , vol.10
    • Paul Fitzgerald, P.1
  • 97
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    • The inclusion of aviation into the EU emission trading scheme-impact on competition between European and non-European network airlines
    • Though somewhat peripheral to the thrust of our argument, there are pragmatic reasons why the European Union might abandon its plan to bring non-EU airlines under its ETS. Regardless of the measure's legality, the Union's insistence on an internationally unpopular and contentious regulation could sour its aeropolitical relations with some of the world's biggest aviation powers. Cooperation on vital issues such as air transport liberalization, aviation security, and safety could be in jeopardy. Also, analysts have forecast that the ETS, even if applied to non-EU carriers, is still likely to inflict competitive harms on EU airlines. See Janina Scheelhaase et al., The Inclusion of Aviation into the EU Emission Trading Scheme-Impact on Competition Between European and Non-European Network Airlines, 15 TRANSP. RESEARCH PART D 14 (2010). A global agreement which apportions standardized emissions reduction measures to all of the world's airlines is likely to ensure that EU carriers are not competitively disadvantaged vis-à-vis non-EU carriers.
    • (2010) Transp. Research Part D 14 , vol.15
    • Scheelhaase, J.1
  • 98
    • 84897950294 scopus 로고    scopus 로고
    • European unilateralism
    • Mar. 31
    • See, e.g., Gabriel S. Sanchez, European Unilateralism, NAT'L L.J., Mar. 31, 2008, at 23.
    • (2008) NAT'L L.J. , pp. 23
    • Gabriel, S.S.1
  • 99
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    • London's big bang in international context
    • Outside of the field of cosmology, "big bang" is typically deployed to refer to sudden, even unexpected, measures, such as the Thatcher Government's 1986 rollback of controls on the London Stock Exchange. See John Plender, London's Big Bang in International Context, 63 INT'L AFFAIRS 39 (1986). In an ideal world, global collective action problems, such as reducing greenhouse gases at the international level, would be solved by equally sudden measures.
    • (1986) Int'l Affairs 39 , vol.63
    • Plender, J.1
  • 102
    • 84897948550 scopus 로고
    • A change is said to be pareto superior if it makes at least one person better off and no one worse off
    • "A change is said to be Pareto superior if it makes at least one person better off and no one worse off." RICHARD A. POSNER, THE ECONOMICS OF JUSTICE 54 (1981). The exacting standard of Pareto efficiency is oftentimes tempered by the Kaldor-Hicks or Potential Pareto Superiority criterion, "which requires not that no one be made worse off by a change in allocation of resources but only that the increase in value be sufficiently large that the losers can be fully compensated." Id. at 91.
    • (1981) The Economics of Justice , vol.54
    • Richard, A.P.1
  • 103
    • 84897942751 scopus 로고    scopus 로고
    • The environment
    • last visited June 14, 2012 (on file with the Harvard Law School Library)
    • See generally The Environment, EMIRATES, http://www.emirates.com/au/ english/about/emvironment/emvironment.aspx (last visited June 14, 2012) (on file with the Harvard Law School Library) (discussing the fuel efficiency of Emirates' state-of-the-art aircraft).
    • Emirates
  • 104
    • 84897945537 scopus 로고    scopus 로고
    • Aviation relations between the united states and china: Are open skies on the horizon?
    • Indeed, China remains committed to protectionism and managed trade in air services with foreign states. See generally Ashley Renee Beane, Aviation Relations Between the United States and China: Are Open Skies on the Horizon?, 72 J. AIR L. &COM. 803 (2007).
    • (2007) J. Air L. &Com. 803 , vol.72
    • Renee Beane, A.1
  • 105
    • 84897937211 scopus 로고    scopus 로고
    • China resists emissions caps in climate policy
    • June 4
    • Cf. Anthony Kuhn, China Resists Emissions Caps in Climate Policy, NPR (June 4, 2007), available at http://www.npr.org/templates/story/story.php? storyId=10693465 (noting China's resistance to emissions caps that would curtail economic growth across its industrial sectors).
    • (2007) NPR
    • Kuhn, A.1
  • 107
    • 84897948074 scopus 로고    scopus 로고
    • Opponents to european airline emissions law prepare their countermeasures
    • Moreover, Chinaand India are among a consortium of states which oppose the application of the EU ETS to their airlines. See Andrew E. Kramer, Opponents to European Airline Emissions Law Prepare Their Countermeasures, N.Y. TIMES, Feb. 22, 2012, http://www.nytimes.com/2012/02/23/business/global/opponents-to- european-airline-emissions-law-prepare-their-countermeasures.html.
    • N.Y. Times, Feb. , vol.22 , pp. 2012
    • Andrew, E.K.1
  • 108
    • 84897940850 scopus 로고    scopus 로고
    • Is anyone tough enough to push through an aviation emissions agreement?
    • Dec. 2
    • See generally Gabriel S. Sanchez, Is Anyone Tough Enough to Push Through an Aviation Emissions Agreement?, CONVERSATION (Dec. 2, 2011), http://theconversation.edu.au/isanyone-tough-enough-to-push-through-an-aviation- emissions-agreement-4555.
    • (2011) Conversation
    • Gabriel, S.S.1
  • 109
    • 84897941513 scopus 로고    scopus 로고
    • See supra Part I.B.-C. (analyzing the legal controversy surrounding the application of the EU ETS to non-EU airlines
    • See supra Part I.B.-C. (analyzing the legal controversy surrounding the application of the EU ETS to non-EU airlines).
  • 110
    • 84897929462 scopus 로고    scopus 로고
    • supra note 74
    • This is not even a contentious legal point. The EU ETS regulation, as it currently stands, does not cover flights that do not originate from, terminate in, or pass over the territory of one or more EU member states. See generally Directive 2008/101/EC, supra note 74.
    • Directive 2008/101/EC
  • 111
    • 67649312432 scopus 로고    scopus 로고
    • Aviation and global climate change in the 21st century
    • In line with ICAO's wishes, presumably any future agreement (multilateral or otherwise) that addresses aviation emissions ought to rely on MBMs. See Assembly Resolution A-37/19, supra note 16, annex. Moreover, arguments have been made that MBMs, such as the EU ETS, can have significant abatement effects. See, e.g., David S. Lee et al., Aviation and Global Climate Change in the 21st Century, 43 ATMOSPHERIC ENV'T 3520 (2009).
    • (2009) Atmospheric Env't 3520 , vol.43
    • Lee, D.S.1
  • 112
    • 84897951916 scopus 로고    scopus 로고
    • Aviation and the environment-what's so special about the industry?
    • Mar. 11
    • See Gary Crichlow, Aviation and the Environment-What's So Special About the Industry?, AVIATION 2020 BLOG (Mar. 11, 2010), http://www.ascendworldwide. com/2010/03/aviation-and-the-environment-whats-so-special-about-the-industry. html.
    • (2010) Aviation 2020 Blog
    • Crichlow, G.1
  • 114
    • 84897934879 scopus 로고    scopus 로고
    • supra note 20, pt. I
    • According to a recent study, aviation supports more than 15 million jobs and $1.1 trillion of GDP worldwide. Moreover, if the air transport sector were a country, its GDP would be $425 billion-outpacing even some members of the G20. See OXFORD ECON., supra note 20, pt. I.
    • Oxford Econ
  • 115
    • 84897942278 scopus 로고    scopus 로고
    • See HAVEL, supra note 118, at 235-301 (surveying the history of U.S. air transport regulation and its progressive liberalization)
    • See HAVEL, supra note 118, at 235-301 (surveying the history of U.S. air transport regulation and its progressive liberalization).
  • 117
    • 84897929046 scopus 로고    scopus 로고
    • supra note 16, annex
    • See Assembly Resolution A37/19, supra note 16, annex.
    • See Assembly Resolution , vol.A37 , Issue.19
  • 118
    • 84897937705 scopus 로고    scopus 로고
    • Id. It is not only because of Article 15 that reinvestment should occur. Pragmatically, an incremental agreement that obligates states to assign MBM revenues to their air transport sectors should assuage industry fears that airlines are being targeted by states to help fill national coffers. Which specific projects ought to be undertaken can be decided on a state-bystate basis. For instance, countries with heavy traffic volumes and an outmoded air traffic management system (e.g., United States) could use the revenues to accelerate their transition from radar-based to satellite-based systems. Other countries that face serious congestion attheir airports (e.g., EU member states) could expand airport capacity or, in instances of strong public resistance, invest in making secondary airports more attractive. Other possible initiatives could include subsidizing research and development in "green" aircraft technology. See WORLD ECON. FORUM, POLICIES AND COLLABORATIVE PARTNERSHIP FOR SUSTAINABLE AVIATION 24 (2011). While some stakeholders may want to tame the temptation of some states to use MBM revenues to subsidize their national carriers, such restrictions are likely to be resisted at the international level. As the recent history of aviation in the European Union has shown, even liberal air transport regimes have tolerated public aid to ailing air carriers. See HAVEL, supra note 118, at 497-502 (discussing efforts by Greece and Italy to prop up their ailing airlines with public subsidies).
    • (2011) World Econ. Forum, Policies and Collaborative Partnership for Sustainable Aviation , vol.24
  • 119
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    • Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, Legal Instruments-Results of the Uruguay Round, Apr. 15, 1869 U.N.T.S. 183, 33 I.L.M. 1125
    • Incidentally, there is no international agreement which addresses air transport subsidies. Aviation remains largely outside the WTO's General Agreement on Trade in Services ("GATS"). See General Agreement on Trade in Services [GATS], Annex on Air Transport Services, Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, Legal Instruments-Results of the Uruguay Round, Apr. 15, 1994, 1869 U.N.T.S. 183, 33 I.L.M. 1125, 1167
    • (1994) General Agreement on Trade in Services [GATS], Annex on Air Transport Services , pp. 1167
  • 120
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    • Assessing the general agreement on trade in services
    • Will Martin &L. Alan Winters eds
    • see also Bernard Hoekman, Assessing the General Agreement on Trade in Services, in THE URUGUAY ROUND AND THE DEVELOPING COUNTRIES 88, 97 (Will Martin &L. Alan Winters eds., 1996) ("GATS does not impose general disciplines on subsidies either, only subjecting them to general obligations.").
    • (1996) The Uruguay Round and the Developing Countries 88 , pp. 97
    • Hoekman, B.1
  • 121
    • 84897940088 scopus 로고    scopus 로고
    • The dutch ticket tax and article 15 of the chicago convention
    • As mentioned, the EU ETS leaves open this possibility. Other state "eco-taxing" schemes with respect to aviation, such as the now-defunct takeoff tax imposed by the Netherlands in 2009, have failed to earmark the revenues for emissions abatement purposes. See Brian F. Havel &Neils van Antwerpen, The Dutch Ticket Tax and Article 15 of the Chicago Convention, 34 AIR &SPACE L. 141 (2009).
    • (2009) Air &Space L. 141 , vol.34
    • Havel, B.F.1    Van Antwerpen, N.2
  • 122
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    • U.S. Steps UP its effort against a european system of fees on airline emissions
    • Sept. 9
    • See James Kanter, U.S. Steps Up Its Effort Against a European System of Fees on Airline Emissions, N.Y. TIMES, Sept. 9, 2010, at A1.
    • (2010) N.Y. Times
    • Kanter, J.1
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    • Pub. L. No. 112-95, § 509, 126 Stat
    • Cf. FAA Modernization and Reform Act of 2012, Pub. L. No. 112-95, § 509, 126 Stat. 11 (2012) (noting Congress's displeasure that the EU ETS circumvents the "consensus-based" approach of ICAO for emissions regulation).
    • (2012) FAA Modernization and Reform Act of 2012 , pp. 11
  • 124
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    • Airlines continue to attack EU ETS
    • FAA, May 5
    • See, e.g., Aaron Karp, FAA, Airlines Continue to Attack EU ETS, ATW ONLINE, May 5, 2011, http://atwonline.com/international-aviation-regulation/ news/faa-airlines-continue-attack-eu-ets-0504
    • (2011) ATW Online
    • Karp, A.1
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    • 2 cap should protect poor countries
    • May 11
    • China Says EU Airline CO2 Cap Should Protect Poor Countries, REUTERS, May 11, 2011, http://af.reuters.com/article/energyOilNews/idAFB9E7FC01Q20110511.
    • (2011) Reuters
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    • Restoring global aviation's "cosmopolitan mentalité& quot;
    • The European Union finalized a similar accord with Canada in 2008. See Brian F. Havel &Gabriel S. Sanchez, Restoring Global Aviation's "Cosmopolitan Mentalité", 29 B.U. INT'L L.J. 1, 31-36 (2011) (discussing the agreement and its future implications for liberalization). The European Union is currently in negotiations with Australia for a highly liberal air services treaty.
    • (2011) B.U. INT'L L.J. 1 , vol.29 , pp. 31-36
    • Havel, B.F.1    Sanchez, G.S.2
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    • The ASEAN multilateral agreement on air services: En route to open skies?
    • Alan Khee-Jin Tan, The ASEAN Multilateral Agreement on Air Services: En Route to Open Skies?, 16 J. AIR TRANSP. MGMT. 289 (2010).
    • (2010) J. Air Transp. Mgmt. 289 , vol.16
    • Khee-Jin Tan, A.1
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    • supra note 25, arts. 8-10
    • See U.S.-EU Agreement, supra note 25, arts. 8-10, 14-15.
    • U.S.-EU Agreement , pp. 14-15
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    • supra note 25
    • U.S.-EU Protocol, supra note 25, art. 3(1).
    • U.S.-EU Protocol , Issue.1 , pp. 3
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    • supra note 28, § 312 cmt.b
    • A plurilateral agreement offers non-parties the opportunity to accede after the agreement has come into effect among its founding parties, but typically the latecomers must accept the terms of the agreement in their entirety. See RESTATEMENT (THIRD), supra note 28, § 312 cmt.b.
    • Restatement (Third)
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    • supra note 25
    • See U.S.-EU Agreement, supra note 25, art. 18(5).
    • U.S.-EU Agreement , Issue.5 , pp. 18
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    • On Canada's liberalized aeropolitical ties to the United States and European Union, see Havel &Sanchez, supra note 137
    • On Canada's liberalized aeropolitical ties to the United States and European Union, see Havel &Sanchez, supra note 137, at 22-28.
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    • Hyperlexis: Our national disease
    • Cf. Bayless Manning, Hyperlexis: Our National Disease, 71 NW. U. L. REV. 767, 767 (1976) ("Hyperlexis is America's national disease-the pathological condition caused by an overactive law-making gland.").
    • (1976) NW. U. L. REV. 767 , vol.71 , pp. 767
    • Manning, B.1
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    • Fragmentation of international law: Difficulties arising from the diversification and expansion of international law
    • U.N., Int'l Law Comm'n, Apr. 13
    • U.N., Int'l Law Comm'n, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682, at 15, ¶ 16 (Apr. 13, 2006) [hereinafter Fragmentation].
    • (2006) U.N. Doc. A/CN.4/L.682, at 15, ¶ , vol.16
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    • supra note 153, at 12, ¶
    • see also Fragmentation, supra note 153, at 12, ¶ 9 ("Some [international law] commentators have been highly criticalof what they see as the erosion of general international law, [the] emergence of conflicting jurisprudence, forum-shopping and the loss of legal security.")
    • Fragmentation , pp. 9
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    • The empire's new clothes: Political economy and the fragmentation of international law
    • Eyal Benvenisti &George W. Downs, The Empire's New Clothes: Political Economy and the Fragmentation of International Law, 60 STAN. L. REV. 595 (2007).
    • (2007) Stan. L. Rev. 595 , vol.60
    • Benvenisti, E.1    Downs, G.W.2
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    • supra note 153, at 12, ¶
    • Fragmentation, supra note 153, at 12, ¶ 9.
    • Fragmentation , pp. 9
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    • Regime-collisions: The vain search for legal unity in the fragmentation of global law
    • See generally, e.g., Andreas Fischer-Lescano &Gunter Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT'L L. 999 (2003)
    • (2003) MICH. J. INT'L L. 999 , vol.25
    • Fischer-Lescano, A.1    Teubner, G.2
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    • Fragmentation of international law? Postmodern anxieties
    • Martti Koskenniemi &Päivi Leino, Fragmentation of International Law? Postmodern Anxieties, 15 LEIDEN J. INT'L L. 553 (2002); see also Benvenisti &Downs, supra note 155, at 619-25 (discussing the formidable political challenges to overcoming fragmentation).
    • (2002) Leiden J. INT'L L. 553 , vol.15
    • Koskenniemi, M.1    Leino, P.2
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    • See POSNER &WEISBACH, supra note 104, at 59-64 (discussing the shortcomings of the UNFCCC and the Kyoto Protocol)
    • See POSNER &WEISBACH, supra note 104, at 59-64 (discussing the shortcomings of the UNFCCC and the Kyoto Protocol).
  • 146
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    • Climate deal falls short of key goals
    • Dec. 19
    • See Juliet Eilperin &Anthony Faiola, Climate Deal Falls Short of Key Goals, WASH. POST, Dec. 19, 2009, at A1
    • (2009) Wash. Post.
    • Eilperin, J.1    Faiola, A.2
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    • Copenhagen-historic failure that will live in infamy
    • Dec. 20
    • Joss Garman, Copenhagen-Historic Failure That Will Live in Infamy, INDEPENDENT, Dec. 20, 2009; see also POSNER &WEISBACH, supra note 104, at 193-97.
    • (2009) Independent
    • Garman, J.1
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    • High-speed rail: The wrong road for America
    • Oct. 31
    • See generally Randal O'Toole, High-Speed Rail: The Wrong Road for America, POL'Y ANALYSIS, Oct. 31, 2008, at 1 (describing plans for installing a cost-heavy high-speed rail system as "promising little or no congestion relief, energy savings, or other environmental benefits.").
    • (2008) Pol'y Analysis , pp. 1
    • O'toole, R.1


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