International Civil Aviation Organization and McGill University Institute of Air & Space Law

Prof. Brian F. Havel

Fulbright Visiting Chair in Comparative Law and Legal Pluralism, McGill University Faculty of Law

Professor of Law and Associate Dean, DePaul University College of Law

AVIATION SAFETY, SECURITY & THE ENVIRONMENT: THE WAY FORWARD

Will Emissions Trading and Taxing Programs Achieve Sustainability?

High Stakes: Policy => Law

• International Aviation -

• High Visibility - Public Symbol of Globalization and Industrialization

• Special International Law Regime

– Chicago Convention / ICAO / Bilaterals

– Not in WTO / GATS

– Singled out in UNFCCC / Kyoto

2 Key Principles

Non–Discrimination Against ForeignAirlines (Chicago Conv. Article 11)

Reciprocity (Bilaterals)

How Do These Principles Apply?

Exceptionalism

• Aircraft / Fuel / Oil / Comestibles / Etc.

• Chicago Convention Article 24 / Bilaterals / ICAO Policies

• No “Fees” or “Duties” (Convention Doesn’t Use Term “Taxes”)

= Taxes Paid Into General Fund (General ICAO Principle)

• EU Still Considering Environmental Taxes (As Well As Emissions Trading System)

Reciprocity / Taxes

• For Costs of Service Provided

• Imposed to Mitigate Environmental Impact of Engine Emissions

• OK if Direct Attribution to Air Transport (Like ATC Charges)

– Earmarking

• E.g., recuperation for damage done as a polluter: to that extent, under international law, EU can impose charges on non-EU airlines and comply with Convention

• Implications of Chicago Convention Arts. 11 and 15 (Non-Discrimination)

Non-Discrimination / Charges

Non-Discrimination / Charges (Ctd.)

• EU Proposal Will Apply to All Flights To / From / Between EU Airports Irrespective of Country of Origin

• EU Knows Something Is Amiss

– Has Instructed Council / Commission to defend against third-country attacks

BUT!

A CLASH OF PRINCIPLES: EU Parliament Does Not “Care” About Legal Standards / U.S. Parks Jumbo Jets Full of Lawyers Outside EU Officesin Brussels

Emissions Trading System• Not in Chicago Convention

– Kyoto International aviation emissions reduction to be pursued through ICAO

– ICAO Can provide binding emissions standards

• Can EU Do This Legally Under International Law?

– ETS No govt. revenue capture, therefore not a tax

No direct attribution to air transport for services provided, therefore not a charge

• Not A Concept Understood in Contemporary International Aviation Law

– Clarification by ICAO?

• Buddhist Not Illegal, Not Not Illegal!

Therefore

UsingPresentCategories

Emissions Trading System (ctd.)

• EU As Long As We Apply Without Discrimination We Honor Chicago Convention Art. 11

• But When EU Aviation Law Affects Non-EU Airlines…

– In bilaterals (US/EU) – traditional

– In regulating CRS

– In slot allocation systems

…EU Expects and Respects Reciprocity As Well As Non-Discrimination

• ETS Seems to Assume Chicago Convention / Bilateral System is Defunct (Reasonable After ECJ Decision in 2002?)

• Potential to Be Worse Than Hushkitting, Potential Trade War (ICAO, WTO)But It Is Not!

Back to Policy => Law

• ICAO’s Policy:

– International law does not explicitly provide for the kind of extra-territorial emissions charges that the EU would like to impose

• Therefore,

– Respecting the principle of State consent, international law should not do so implicitly (non-discrimination and reciprocity)