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EMA Climate Change
Conference
Title: “Integration of international civil aviation
into the EU Emissions Trading System and
developing countries”
Author: LAM Van Trien, LL.M “ European
Practice of Law ”
Outline

Incidence of international civil aviation on climate change

Integration of international civil aviation into the EU Emissions
Trading System

Strong opposition from developing countries
 Exclusion of unilaterality in international law
 Principle of « common but differentiated responsibilities »

Propositions from developing countries
 Reinforcement of negotiation on the principle of mutual
agreement through the International Civil Aviation Organization
 Consideration of principle of "common but differentiated
responsibilities" in the EU ETS
Incidence of international civil aviation on
climate change
( Source: Communication of European Commission on 27 September 2005
on “Reducing the Climate Change Impact of Aviation” )

The impact of aviation on the climate increases considerably.

While the EU's total greenhouse gas emissions fell by 5,5 %
from 1990 to 2003, its greenhouse gas emissions from
international aviation increased by 73% from 1990 to 2003.

Emissions of international flights from EU airports will by 2012
increase by 150 % since 1990.

This growth in aviation emissions would offset more than a
quarter of the reductions required by the European
Community’s target under the Kyoto Protocol.
Integration of international civil aviation into
the EU Emissions Trading System

Emissions from international aviation are not covered by
national targets under the Kyoto Protocol.

European Commission proposes inclusion of international civil
aviation into EU ETS to reduce aviation's climate impact in a
cost-effective and economically efficient manner.

Directive 2008/101/EC of the European Parliament and of the
Council of 19 November 2008 amending Directive 2003/87/EC
so as to include aviation activities in EU ETS.

This directive was published in the EU Official Journal on 13
January 2009.
Integration of international civil aviation into
the EU Emissions Trading System

The system will cover all flights arriving at or departing from an
airport in the European Community as of 1 January 2012.

Aircraft operators will be allocated a number of emission
allowances.

Allowances can be traded.

In complying with the principle of non-discrimination under the
Chicago Convention, EU ETS will apply for all airlines, whatever
their nationality.
Strong opposition from developing countries
Legal basis :

Exclusion of unilaterality in international law

Principle of "common but differentiated
responsibilities"
Exclusion of unilaterality in international law

Principle 24 of Stockholm Declaration 1972 on Environment :
« International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries, big
and small, on an equal footing. Cooperation through multilateral or bilateral
arrangements or other appropriate means is essential to effectively control,
prevent, reduce and eliminate adverse environmental effects resulting from
activities conducted in all spheres, in such a way that due account is taken of
the sovereignty and interests of all States. »
Exclusion of unilaterality in international law

Principle 12 of Rio Declaration 1992 on Environment and
Development : « Unilateral actions to deal with environmental challenges
outside the jurisdiction of the importing country should be avoided.
Environmental measures addressing transboundary or global environmental
problems should, as far as possible, be based on an international
consensus. »

Working paper n° A36-WP/198-P/16 presented by Portugal on
behalf of the European Community and its member states at the
36th Session of ICAO Assembly: “while the EU and its Member
States are intent on taking action on aviation emissions, they are firm
believers in international cooperation (notably in the context of ICAO) and
will continue to participate fully in global and bilateral dialogue on this issue
in the years to come.”
Principle of "common but differentiated
responsibilities"

Article 3.1 of UNFCCC : « The Parties should protect the climate system for
the benefit of present and future generations of humankind, on the basis of
equity and in accordance with their common but differentiated responsibilities
and respective capabilities. Accordingly, the developed country Parties should take
the lead in combating climate change and the adverse effects thereof. »

Article 3.2 of UNFCCC : « The specific needs and special circumstances of
developing country Parties, especially those that are particularly vulnerable to the
adverse effects of climate change, and of those Parties, especially developing
country Parties, that would have to bear a disproportionate or abnormal burden
under the Convention, should be given full consideration. »
Principle of "common but differentiated
responsibilities"

Kyoto protocol didn’t impose any binding emissions reduction
targets on developing countries.

Inclusion of airlines of developing countries into EU ETS is
contrary to the principle of "common but differentiated
responsibilities" of UNFCCC and Kyoto protocol.
Principle of "common but differentiated
responsibilities"

Working paper n° A36-WP/251-EX/82 presented by Nigeria on
behalf of African States at the 36th Session of ICAO Assembly :
« since Kyoto Protocol does not set emission targets for developing countries,
inclusion of airlines from developing countries in the EU ETS would
amount to setting for them emission targets through the back door »
Principle of "common but differentiated
responsibilities"

Working paper n° A36-WP/235-EX/76 presented by China at
the 36th Session of ICAO Assembly : « According to UNFCCC
and its Kyoto Protocol, emissions trading can be only applied to UNFCCC
Annex I countries. In addition, such “cap and trading” mechanism is unfair
to developing countries’ air transport industries which are still undergoing the
growing period. Therefore, the Parties not included in Annex I should not be
imposed such coercive duty on emissions trading »

In its working paper n° A36-WP/88-EX/36 presented at the
36th Session of ICAO Assembly, Egypt worries about adverse
effect of inclusion of international civil aviation into EU ETS on
the competitiveness of the airlines of developing countries.
Propositions from developing countries

Reinforcement of negotiation on the principle
of mutual agreement through the International
Civil Aviation Organization

Consideration of principle of "common but
differentiated responsibilities" in the EU ETS
Reinforcement of negotiation on the principle
of mutual agreement through the ICAO

Article 2.2 of Kyoto protocol : « The Parties included in Annex I
shall pursue limitation or reduction of emissions of greenhouse gases […]
from aviation […], working through the International Civil Aviation
Organization […], respectively. »

Working paper n° A36-WP/251-EX/82 presented by Nigeria on
behalf of African States at the 36th Session of ICAO Assembly:
« they do not support unilateral inclusion of third party airlines in the
Emission Trading Scheme (ETS) of European Union (EU) without their
mutual consent, […], inclusion of aviation emissions in Emission Trading
Scheme (ETS) should follow ICAO guidelines based on mutual agreement
of States and airlines involved; »
Reinforcement of negotiation on the principle
of mutual agreement through the ICAO

Working paper n° A36-WP/88-EX/36 presented by Egypt at the
36th Session of ICAO Assembly: « no decision concerning emissions
trading for aviation, should be taken unilaterally by a State or group of
States that might have adverse economical effect on other ICAO Contracting
States, and on developing and poor countries in particular. »

Working paper n° A36-WP/285-EX/92 presented by Chile at
the 36th Session of ICAO Assembly : « Consensus is fundamental to
the establishment of new obligations. It would be acceptable to implement the
emissions trading system for international civil aviation only through
agreements between States. This excludes unilateral measures. Consensual
obligations between States are rooted in sovereignty and are always based on
consent and free will. »
Reinforcement of negotiation on the principle
of mutual agreement through the ICAO

Working paper n° A36-WP/39-EX/10 presented by the Council
of ICAO at the 36th Session of ICAO Assembly : « a majority of
States represented on the ICAO Council indicated that any approach for the
inclusion of international civil aviation in emissions trading schemes should
respect the sovereignty of Contracting States and be on the basis of mutual
agreement. »

The role of ICAO for negotiation concerning inclusion of
international aviation into ETS for the post-Kyoto period cannot
be ignored by European Community.
Consideration of principle of "common but
differentiated responsibilities" in the EU ETS

Inclusion of airlines of developing countries into EU ETS is
contrary to the principle of "common but differentiated
responsibilities" of UNFCCC and Kyoto protocol.

Principle of non-discrimination under article 11 of Chicago
Convention on International Civil Aviation : « […] the laws and
regulations of a contracting State relating to the admission to or departure
from its territory of aircraft engaged in international air navigation, or to
the operation and navigation of such aircraft while within its territory, shall
be applied to the aircraft of all contracting States without distinction as to
nationality, […] »
Consideration of principle of "common but
differentiated responsibilities" in the EU ETS

Exemption of airlines of developing countries can violate the
principle of non-discrimination.

Inclusion of airlines of developing countries can violate the
principle of « common but differentiated responsibilities » .

Is there a conflict between the principle of non-discrimination
and the principle of « common but differentiated
responsibilities » ?
Consideration of principle of "common but
differentiated responsibilities" in the EU ETS

In practice, ICAO recognizes both 2 principles.

With the respect of these 2 principles, ICAO approves inclusion of
international aviation into voluntary ETS.

A voluntary ETS can weaken the efficiency of the system and cannot
respond to the urgency of reduction of aviation’s climate impact.

European Community prefers a compulsory ETS.
Consideration of principle of "common but
differentiated responsibilities" in the EU ETS

In order to respond to the urgency of reduction of aviation’s
climate impact, EU can apply a compulsory ETS for international
civil aviation

In complying with the principle of « common but differentiated
responsibilities », EU should exempt airlines of developing
countries from EU ETS

This exemption is not contrary to the principle of nondiscrimination.
Consideration of principle of "common but
differentiated responsibilities" in the EU ETS

The principle of « common but differentiated responsibilities » is not
contrary but complementary to the principle of non-discrimination.

EU can encourage airlines of the developing countries to participate
on the voluntary basis to the EU ETS.

It is the « harmonization of interest » approach.

This approach takes into account the interest of EU in the reduction
of aviation’s climate impact as well as the interest of developing
countries in the promotion of sustainable development.