Legitimacy Analysis Of EU Aviation Carbon Emissions Trading System

Emissions from aviation was included into the European Union Emissions Trading System ("EU ETS") according to the Directive2008/101/EC, which has imposed a cap on CO2emissions from flights arriving at or departing from the airports in European Union ("EU") countries. There is a view that the unilateral measure has violated the Chicago Convention, the Kyoto Protocol, the EU-U.S. Open Skies Agreement and customary international law. Chapter1of this article mainly introduces the background and content of EU ETS on aviation.It is legal that the EU ETS covers the part of emissions that take place within EU airspace. Firstly, Article2.2of the Kyoto Protocol does not grant the International Civil Aviation Organization ("ICAO") the exclusive competence on the emissions from aviation. EU has the power to set environmental standards on aviation activities within EU airspace. Secondly, the particular content of the Princple of Common but Differentiated Responsibilities and Respective capabilities relies on international negotiations, which compose international obligations But there are no such obligations on emissions of aviation. Thirdly, the EU ETS on aviation is different from charge or tax since it does not direct on fuel or oil, but emissions. So it does not violate the Chicago Convention or the Open Skies Agreement. However, it is illegal that the EU ETS covers the part of emissions that take place outside EU airspace for it being violating the Principle of National Sovereignty and the Principle that No State May Subject Any Part of the High Seas to Its Sovereignty. Chapter2and Chapter3discuss the legality and illegality of the EU ETS on aviation respectively.In April2013, the EU decided to suspend enforcement of the EU ETS requirements for flights from or to non-European countries temporarily till30April2014, while continuing to apply the legislation to flights within and between countries in Europe. In the autumn of2013, the EU took its initiative to give time to the Assembly of the ICAO to reach a global agreement to tackle aviation emissions. In October2013, the ICAO convened the38th Session Assembly, and decided to develop a global Market-Based Mechanism ("MBM") by2016and apply it by2020. The MBM is designed to control and reduce the international aviation emissions. Within consideration of the ICAO outcome and the promotion of global discussions, the European Commission ("EC") has proposed to amend the legislation, indicating that only the part of emissions taking place within the European Environment Agency airspace should be covered by the EU ETS. Chapter4mainly introduces and discusses A38-18Resolution of ICAO and the proposal of the EC, which legalizes the Directive2008/101/EC.