Legality of EU environmental regulation challenged under international law.
Both international travelers and legal scholars should be interested in a recent hearing before the European Court of Justice (ECJ), since the outcome may affect the cost of air travel and the rules of customary international law.
The Air Transport Association of America and American, Continental, and United Airlines have asked the ECJ to decide whether the European Union (EU) can apply its emissions trading regulations to non-EU air carriers operating flights to, from, and within the EU. Under a policy the EU has adopted, starting January 1, 2012, all airlines will be required to surrender allowances for greenhouse gas emissions released throughout journeys to and from EU airports. Airlines that are unable to reduce their emissions sufficiently will have to buy emissions credits from other, “cleaner” airlines.
The US-based airlines initially challenged the scheme through the UK High Court. With the case subsequently referred by the UK court to the ECJ, eleven governments and five environmental groups, namely the Aviation Environment Federation (AEF), the World Wildlife Fund, the European Federation for Transport and Environment, the Environmental Defense Fund, Earthjustice, have now intervened in support of the defendant UK Government.
The airlines argue that the EU emissions trading scheme is contrary to customary international law because it violates the sovereignty of third states by regulating emissions outside of EU airspace. Arguing against this, the AEF claims that the EU emissions trading scheme “merely lays down conditions under which aircraft may depart from, or arrive in, the aerodromes of Member States.” Importantly, the ECJ has been asked to rule on the existence of a disputed principle of international law concerned with jurisdiction over aircraft as they fly over the high seas.
The airlines also dispute the unilateral application of the EU emissions trading scheme to the aircraft of third states because it is contrary, they claim, to provisions of the Kyoto Protocol that require states to pursue the reduction of GHG emissions from aviation by a global sectoral approach through the International Civil Aviation Organization (ICAO).
Finally, the airlines argue that the extra cost of the allowances constitutes an unlawful charge under the Chicago Convention and the EU-US Open Skies Agreement.
The UK Government acknowledges that customary international law principles could determine the scope of EU regulation, but argues that in this case the airlines cannot rely upon customary law or International Agreements to challenge the application of the EU emissions trading scheme to non-EU air carriers.
Submissions from the parties and interveners reveal the uncertainty surrounding the existence and scope of provisions of customary law on jurisdiction and extraterritorial regulation in the field of aviation, and what provisions of international law may be used by private parties to challenge EU law in domestic courts.
On this latter issue, Jean Galbraith, Sharswood Fellow in Law and International Affairs at the University of Pennsylvania Law School, notes that “the circumstances under which private parties can raise international law claims is a hot issue.” Given that the U.S. Supreme Court adopted a relatively restrictive position on this issue in a case several years ago, “it will be interesting to see where the ECJ goes with it,” Galbraith said.
Officials from the US, China, and India have all criticized the application of the EU emissions regulation scheme to foreign airlines. The ECJ is expected to hand down its judgment later in this year.
