International Civil Aviation Organization and
McGill University Institute of Air & Space Law
AVIATION SAFETY, SECURITY & THE
ENVIRONMENT: THE WAY FORWARD
Will Emissions Trading and Taxing Programs
Achieve Sustainability?
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
High Stakes: Policy => Law
• International Aviation - Exceptionalism
• 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
Non–Discrimination Against Foreign
Airlines (Chicago Conv. Article 11)
2 Key Principles
Reciprocity (Bilaterals)
How Do These Principles Apply?
Reciprocity / Taxes
• 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)
Non-Discrimination / Charges
• 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 (NonDiscrimination)
Non-Discrimination / Charges (Ctd.)
BUT!
• 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
A CLASH OF PRINCIPLES:
EU Parliament Does Not “Care” About Legal Standards /
U.S. Parks Jumbo Jets Full of Lawyers Outside EU Offices
in 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?
Using
Present
Categories
– ETS
No govt. revenue capture, therefore not a tax
No direct attribution to air transport for services provided,
therefore not a charge
Therefore
• Not A Concept Understood in Contemporary International Aviation
Law
– Clarification by ICAO?
• Buddhist
Not Illegal, Not Not Illegal!
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 NonDiscrimination
• ETS Seems to Assume Chicago Convention / Bilateral System is
Defunct (Reasonable After ECJ Decision in 2002?)
But It Is Not!
• Potential to Be Worse Than Hushkitting, Potential Trade War (ICAO,
WTO)
Back to Policy => Law
• ICAO’s Policy:
– International law does not explicitly provide for the kind of extraterritorial 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)