Thursday, November 17, 2011
For those who are interested, the volume of scholarship responding to the Advocate General's advisory opinion in the ETS case continues to grow. Benoit Mayer contributes A Defense of the EU Emission Trading Scheme in Aviation Activities (Nov. 7, 2011) (available from SSRN here). From the abstract:
From 1 January 2012, directive 2008/101 extends the EU Greenhouse Gas Emission Trading Scheme to aviation activities. The validity of this directive has been questioned in a preliminary ruling brought by American air carriers. This article discusses the allegations of an extraterritorial legislation and a 'European unilateralism' in the light of the recent conclusions of Advocate General Kokott. Beyond purely legal arguments, it highlights the underlying economic and political considerations that are part to the debate. Lastly, it pleads for further consideration to be given to good faith in the assessment of the European so-called 'unilateralism.' As the European Union has no economic interest in implementing this regime, one should take its environmental motivation duly into account; and mitigating climate change is certainly a legitimate purpose recognized in international law, therefore allowing certain forms of legislation with an extraterritorial effect.