A Study On Legal Issues Of Inclusion Of Aviation Activities In EU-ETS

On November19,2008, European Union Legislature adopted Directive2008/101/EC (“Directive”) to include aviation activities in the European UnionEmissions Trading System (EU-ETS). According to the Directive, starting fromJanuary1,2012, all flights arriving at and departing from European Unionaerodromes should be included in the EU-ETS. This legislation invoked broaddiscussions among States regarding its validity under international law. This articleanalyses the validity of the Directive under international environmental law,international aviation law and international customary law, and gives suggestions onhow China as a major developing country may response to the implementation ofsuch Directive.The first chapter of the article gives a brief introduction of the rules of theDirective and describes the legal issues the Directive encounters under internationalenvironmental law, international aviation law and international customary law. Thefollowing three chapters respectively give a detailed discussion on validity of theDirective under each subject of international law and the judgment of the Court of theEuropean Union on Case C-366/10. The article points out that (i) through unilaterallyincluding international flights in EU-ETS, the European Union violates its obligationsunder Kyoto Protocol which requires parties to reach an agreement on greenhouse gasemission of international aviation activities through ICAO and the principle ofcommon but differentiated responsibility under UNFCCC and Kyoto Protocol;(ii) theauction of emission allowance can be regarded as levying charges on aircraftoperators of international flights, thus the European Union violates provisions ofcustom duty in Chicago Convention; meanwhile the fact that the Directive relates emission to fuel consumption can be regarded as levying charges on fuels which isprohibited by Chicago Convention;(iii) by including emissions occurred on high seasand airspace of third countries in the calculation of the overall emission, the EuropeanUnion violates the sovereignty of States over their airspace, the principles of thefreedom of States’ to fly over the high seas and invalidity of claims of sovereigntyover the high seas.Based on the analysis of the above chapters, the fifth chapter of the articlemainly suggests possible measures China may adopt to response to such Directive:(i)to actively participate in international cooperation against the implementation of theDirective;(ii) to actively participate in international discussion on adopting a uniformmechanism on emission regulation of international aviation activities under ICAO;and (iii) to speed up the establishment and improvement of its national emissionstrading system.