Research On The EU Marine ETS In The Context Of International Law

Although most industries which produce carbon emissions has been incooperated into the Kyoto Protocol when it was made into effects, international shipping and aviation, in view of their speciality, were not regulated by the Kyoto Protocol. Dispite the totoal amount of international shipping emissions are not as high as other majority land-based industries, as the international trading increasing, according to the IMO's anticipate, GHG emissions from international shipping will grow exponentially in the consideration that there were not any effective measures against the emissions. IMO has been focused on this issue for a long time and made a series of technical and operational standards which serve as avenues for international shipping emissions reduction. However, these standards can not reduce the emissions fundamentally, the only way to resolve the problem, as quoted from the IMO's research, is to establish a global market-based mechanism for international shipping emissions. Unfortunately, it seems extremily hard for fulfill it ambition in a predictable future considering the intertangled interests among shipping states, trading states and small islands states. In this circumstance, the EU put forward that the EU should and need to take similar unilateral measures as it did in international aviation to establish an EU emissions trading system. There are two basic problems which are in relating to the proposed EU unilateral measures. Firstly, does EU have the right to take unilateral measure against the international shipping emissions? If the answer is positive, then, the second issue is that does EU has the right to take unilateral measures against emission behaviors of foreign vessels conducted outside the EU's jurisdictional sea area according international law? This research will discusses these two issues by six chapters.In the first chapter mainly introduces the general development of EU's marine shipping emissions reduction policies and legislations. As the leadership of international climate change, the EU focuses on the reduction and adoptatoin of climate change give rise to anthropogenic GHG emissions. In view of international marine shipping emissions, besides putting forward the legislation relating to shipping emissions reduction in the IMO, the EU also make some regional policy arrangement in relating to marine shipping emissions reduction. Currently, the EU plans to establish a marine shipping emissions trading system following the proposal of the European Commission. In order to make sure the draft into practice, a premeasure, the MRV measure has been taken into effects.The second chapter centred on a basic issue that does EU is authorized to take unilateral action against the international shipping emissions according to the acticle 2.2 of Koyoto Protocol. There is no other provision regulating GHG emissions arsing from international bunker fuel except the arctile 2.2 of Koyoto Protocol which provides that the "Annex I" countries should "work through" the IMO and ICAO to reduce and limit the GHG emissions from international shipping and aviation. There are different understandings about this provision. Some thought that this provision in fact prohibit member states, especially "Annex I" countries to take any unilateral action against international shipping and aviation emissions but can only achieve that aim through international cooperative action via IMO and ICAO. However, this opinion is some kind of misunderstanding regarding this provision. In fact, this research think that the obligation contained in this provision is not substituted one, but only a procedure regulation which requires Parties to cooperate with other international community members as possible as it can do. There is no obligation for any Parties to get an final agreement with other countries about solve of GHG emissions from international bunker fuels. All Parties need to do is negotiation with others in good faith. Based on this opinion, this research examined the performance of the EU in this international law obligation and concluded that since the EU has negotiation with other parties in the IMO in terms of the reduction of international shipping emissions, and therefore it is rightful for the EU to take necessary domestic measures against the international marine shipping emissions.The third charpter has a systematic analysis about the extraterritoriality of the the EU marine ETS through customary international laws. The research concludes that the extraterritoriality of the proposed EU marine ETS can not pass the test of so-called "reasonable jurisdiction test" which is the most important customary international rule that assess the legality of extraterritorial jurisdiction.The fourth chapter assesses the legality of the extraterritorial jurisdiction of the EU marine ETS and thought that firstly, provisions relating to vessel-source pollution does not entitled EU to regulate the extraterritorial emissions behaviors of foreign vessels, and secondly, even the EU mairne ETS could be disguised as condition for port entry of foreign vessels, the extraterritorial jurisdiction will still limited by its enforcement jurisdiction over foreign vessels which violated the port entry condition.The fifth chapter evaluates the the legality of the EU mairne ETS in the context of the WTO rules. Alghough currently discussed is about the mairne emissions and the relevant market-based mechanism which desgined to reduce them; the proposed EU marine ETS would affect the good transportation and finally impact the international trade and therefore under the regulation of the WTO rules. As a result, the proposed EU marine ETS constructed as a trade-related environmental measures. According to the drefted design, further voyage the foreign vessel, higher carbon allocation allowance cost would have to be undertaken. In this circumstance, this cost undertaken by ship-owner and transferred to shippers will becomes discrimination among similar conducts imported from different states, and therefore will be imcompatible with the "most favored nations" and "national treatment". Further, EU can not get exemption by citing the "environmental exceptions" contained in article 20 (b), (g) of GATT.The sixth chapter firstly assesses and analysises the potential impact of the EU marine ETS on China's foreign trade and shipping industry, based on which provides some advises about how should China do to offset the passive influences the proposed EU marine ETS bringing forward from law, politics and diplomacy.