EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme

EU Climate Change Unilateralism: International Aviation in the European Emissions Trading Scheme

By Joanne Scott and Lavanya Rajamani
European Journal of International Law, 14 November 2011

The EU is engaged in an ambitious, controversial and high-stakes experiment to extend the reach of its climate change law. It is seeking to use its market power to stimulate climate action, and to substitute for climate inaction, elsewhere. In some quarters, this has been greeted with dismay. While we are sympathetic to the EU’s objective, we argue that its current approach is flawed. In contrast to other observers, we do not condemn the EU on the basis that its approach is unilateral, extra-territorial or liable to infringe the sovereignty of other states. We argue instead that in its current guise, the aviation decision may not sufficiently reflect or give adequate weight to the principle of Common but Differentiated Responsibilities and Respective Capabilities (CBDRRC). This is a key component of international climate change law and while its meaning and implications remain contested and vague, it makes it clear that developed countries should take the lead in addressing the causes and effects of climate change. We argue that the concept of CBDRRC retains relevance in the context of unilateral action, and that EU policy should be interpreted, applied and where necessary adjusted in the light of this principle to ensure that it is given proper weight. We argue that it is possible to achieve an alignment between CBDRRC and the principle of non-discrimination which is found in many parts of international law.