The Triumph of Politics: Reflections on the Judgment of the Court of Justice of the European Union Validating the Inclusion of Non-EU Airlines in the Emissions Trading Scheme

Abstract

The planned extension of the EU emissions trading scheme to non-EU carriers has provoked vociferous opposition and prompted debate among scholars and practitioners of international and environmental law. U.S. airlines challenged the relevant EU directive in the English High Court, arguing that it is incompatible with international law. The High Court made a preliminary reference to the Court of Justice of the European Union. Advocate General Juliane Kokott provided an advisory opinion in October 2011 that upheld the validity of the directive. On December 21, 2011, the Court issued a judgment that largely adopts the Advocate General's reasoning. The article contends that the Advocate General and the Court, in their juristic pronouncements regarding the novel legal issues in this case, exalt political concerns over adherence to traditional understandings of fundamental principles of international aviation law, notably sovereignty, extraterritoriality, and the applicability of the Chicago Convention. The authors conclude that the integrity of the international aviation system depends upon levels of international cooperation that are inconsistent with the unilateralist, interest-driven readings of legal principle evident in both the Opinion and Judgment.

Keywords: Aviation, Emissions Trading Scheme, International Law