Legal Analysis On The Inclusion Of Aviation Into The EU Emissions Trading Scheme

On November19,2008，the European Union passed an instruction which broughtaviation industry into the EU Emissions Trading System（EU ETS）. It is known asdirective2008/101/EC. From the beginning of January1,2012, The directiveregulates the airlines which were flying into or departing from the EU were subjectedto the EU Emissions Trading System.All the international flights flying into ordeparting from EU will be limited by certain emissions quotas, the excess part will bebought from EU. Actually it is equivalent to the aviation carbon tax.This measure hascaused strong oppositions from non-EU countries and airlines,some countries havealso taken measures to boycott this action. Although the EU suspend theimplementation of the EU aviation carbon emissions trading under a lot of pressure,that do not mean EU will prohibit its action forever. It may continue aviation carbontax after eliminating all those obstacles.Directive2008/101/EC and its action of collecting aviation carbon tax were notcorresponding to the relevant international conventions and international law. First ofall,the EU collecting aviation carbon tax from all the airlines which are flying into ordeparting from the EU with no distinctions has against the common but differentiatedresponsibility principle(CBDR) under UNFCCC and Kyoto protocol. Under thecommitments of Kyoto protocol, developing countries have no mandatory obligationsfor reducing carbon emissions, however, the European Union’s action assigned thistough task to the developing countries on purpose. Secondly, the EU imposed aviationcarbon tax on those airlines which flying into or departing from the EU against theextraterritorial jurisdiction rules. According to the effect theory of internationalcustomary law, the extraterritorial application of a country’s domestic law must have amaterial impact to its country. Meanwhile,the extraterritorial application of a country’sdomestic law must have no damages to other countries and interests of the entireinternational community. However,the carbon emissions from the internationalaviation industry has no substantial and fundamental influence on EU.This measure isin order to transfer the aviation carbon cost rather than reduce the aviation carbonemissions.The extraterritorial application of the law has caused a great pressure to theentire international community, particularly in developing countries.Therefore,the EUinclude the international airlines into its EU ETS were not corresponding to the effect theory of international customary law.As the largest trading partner of EU and the biggest developing country to EU,thecollection of aviation carbon tax have a significant impact to the Chinese trade toEurope with no doubts. In consideration of the aviation industry’s low level,the heavyburden of aviation carbon tax will not benefit the further development of aircraftindustry. So it is necessary to pay much attention to the field of aviation carbonemissions trading scheme and find solutions positively.In this regard, on the onehand,China can through litigation way to challenge expansion of extraterritorial ofaviation from EU. On the other hand,China should build our own carbon tradingmarket positively,and establish equivalent mechanism to resist the collection ofaviation carbon tax.Meanwhile,China can also eliminate the negative impact throughdiplomatic channels,including joint with other countries in the world against the EU ’scollection of aviation carbon tax,etc.