The EU Aviation ETS caught between Kyoto and Chicago: Unilateral Legal Entrepreneurship in the Multilateral Governance System

The entry into force, on January 1st, 2012, of the European Union Directive 2008/101/EC extending the European Emission Trading System to domestic and international civil aviation has taken the dispute regarding its legitimacy to unprecedented heights. The choice of the EU legislator to include foreign air carriers and their CO2 emissions that occurred beyond EU airspace infuriated third countries, while the fact that the directive applies the same treatment to all airline operators whatever their nationality met vivid criticism from developing countries, in particular China and India.This paper investigates the reasons why the environmental objective pursued by the EU Aviation ETS does not seem sufficient to render its unilateral adoption acceptable to the international community, despite staging multilateral negotiations and despite the flourishing national transplants of the ETS system in other jurisdictions. Thereby it provides a preliminary assessment of what the current row implies for the global governance of climate change. Devoting particular attention to the positions of the EU and China in this dispute, it argues that the opposition to EU endeavour finds its roots in the normative frictions between the climate change regime and the international aviation regime, while the lack of process legitimacy of EU unilateralism provoked third countries’ claims to the infringement of their national sovereignty. Thus, it concludes that in the current international system, the harmonization of regimes’ normative goals and principles must result from a political choice, the absence of which can effectively frustrate the achievement of multilateral cooperation goals. Moreover, in such context, the unilateral imposition of an alternative path involving the other regime members against their consent, to palliate multilateral norm-making, is likely to meet increasingly strong opposition from an increasing number of powerful countries.

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