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

Air and Space Law, Vol. 37, No. 1, pp. 3-33, 2012

Kluwer Law International, Forthcoming

DePaul Legal Studies Research Paper No. 2012-08

32 Pages Posted: 23 Feb 2012 Last revised: 29 Jun 2012

Brian F. Havel

DePaul University College of Law

John Q. Mulligan

International Aviation Law Institute

Date Written: February 1, 2012

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

Suggested Citation

Havel, Brian F. and Mulligan, John Q., 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 (February 1, 2012). Air and Space Law, Vol. 37, No. 1, pp. 3-33, 2012; DePaul Legal Studies Research Paper No. 2012-08. Available at SSRN: https://ssrn.com/abstract=2010190

Brian F. Havel (Contact Author)

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

John Q. Mulligan

International Aviation Law Institute ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

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