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Pave the Way Green Or Punch the Way Greedy

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Pave the Way Green Or Punch the Way Greedy Pave the way greenly or punch the way greedily: A comment on EC Directive 2008/101/EC Tseng-hao Tsao Institute of Air and Space Law McGill University, Montreal 2010 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master in Laws (LL.M.) © Tseng-hao Tsao 2010 Acknowledgments First and foremost I offer my sincerest gratitude to my supervisor, Prof. Armand de Mestral, who has supported me throughout my thesis with his patience and knowledge whilst allowing me the room to work in my own way. Without his encouragement, guidance and support from the initial to the final level, this thesis would not have been possible. I am indebted to him more than he knows I further convey my acknowledgment to the IASL and all the professors thereof. They have provided the support and all the knowledge I have needed to produce and complete my thesis. Taking this opportunity I would like to thank and attribute the level of my LL.M. degree to Maria D’Amico for her encouragement and effort to me and without her this thesis, too, would not have been completed. One simply could not wish for a better friend. I like to envoy my personal gratitude to Dr. Chris Chu Cheng Huang, who is a D.C.L. of McGill University and was my supervisor back to my first LL.M. degree. He has made available his support in a number of ways from my first law class to present enabled me to develop a wider vision not only in the legal field but also my life span. I could never have embarked and started all of this without his prior teachings and thus opened up unknown areas to me. Lastly, I offer my regards and blessings to my family, classmates, friends and all of those who supported me in any respect during the completion of my LL.M. degree in IASL, McGill University. As well as I would like to express my apology to whom I could not mention personally one by one. Thank you all! i Abstract Climate change is a problem that all human beings have to face together. Since 1997, the Kyoto Protocol introduced the three flexibility mechanisms to cope with this environmental issue, one of which is emissions trading, using a market measure as a solution for an eco-problem. It is a new trend in the field of environmental protection. However, the core of emissions trading contains risks, which is a concern for most countries especially under the present global situation. Thus, emissions trading has not been widely accepted by a lot of states as an environment policy. In 2008, the EU amended its emissions trading scheme directive and the aviation industry was covered by the new directive. In other words, every international flight departing from or landing at any airport of EU countries will be forced to cut down its GHG emissions by joining the EU emissions trading scheme. The amended directive entered into force on February 2nd 2009. The directive directly impacts the global aviation industry. The EU action has been criticized for violating the integrity of the International Civil Aviation Organization. It also triggered an issue with international law, regarding the conflict between international organizations. At last, both international organizations have legitimacy to deal with the GHG emissions trading for aviation. Focusing on a particular region, Asia, now an area more and more important to the whole world, economically and politically, especially booming China. However, in the environmental field, most Asian countries are followers, especially as their current priority is the economy not the environment. Climate change is not the main focus either. Even though the new directive of the EU will cover flights coming from Asia. Taking Taiwan, China and Japan for instance, each one stands for a character to examine the emissions trading policies within their legal systems. Taiwan is a non-contracting party, China is a non Annex 1 party and Japan is an Annex 1 party of the United Nations Framework Convention of Climate Change. What kind of measures can they adopt to fulfill the EU directive and to face the climate change issue in the cost-efficient way. Although, the GHG emissions trading scheme is not perfect, to establish an Asian style GHG emissions trading scheme is a highly doable measure. A GHG emissions trading market can catalyze the renovation of high emission industries to reduce GHG ii emissions and improve the efficient use of energy. Especially for developing countries in the Far East this is the key to opening a new era. iii Résumé Aujourd’hui le problème du changement climatique lié à l’utilisation de combustibles fossiles est complexe et décisif pour tout le genre humain. En 1997, trois mécanismes de flexibilité ont été introduits par le Protocol de Kyoto. Parmis eux, le commerce des émissions a effet de serre est le plus proche des lois du marché, c’est pourquoi la tendance dominante est de supporter ce mécanisme pour résoudre les problèmes environementaux liés au changement climatique. Cependant de nombreux pays se questionnent sur les risques que pourraient provoquer ces transactions financières. Ils n’ont donc toujours pas inclus ce mecanisme dans leurs politiques environementales. En 2008, une directive a été modifiée par l’UE (Union Europeenne) ainsi a partir de 2012 les compagnies aéronautiques doivent obtenir des permis d’émissions de gas à effet de serre dans le cadre du MEPE (Marché européen des permis d’émissions). Cette loi est également entrée en vigueur le 2 Février 2009 et elle touchera directement le marché mondial de l’aéronautique. En outre, cette nouvelle directive de l’UE pourrait aussi avoir un impact sur l’OACI (Orgaisation de l’aviation civile internationale). Plusieurs questions derivées du droit international apparaissent également. Bien sur, les conflits de jurisdictions internationales et les disputes entre les organisations internationales qui appliquent le droit international moderne sont plus compliqués et aussi plus vastes. L’Asie est une zone hétérogêne en termes géographiques, politiques, environementaux et économiques. La région de l’Asie ne joue généralement pas le rôle de leader en politique internationale, cependant, apres l’éclatement de la bulle économique japonnaise au début des années 90 et surtout au cours des dernières années avec la naissance de la Chine moderne; le centre de gravité mondiale penche de plus en plus vers l’Asie. Jusqu’a present les pays asiatiques se sont surtout concentrés sur leur dévèloppement économique et ont pris une attitude passive dans la lutte pour la réduction des gaz à effets de serre. Ils devront pourtant s’ajuster à la directive puisque les vols en direction de l’Europe peu importe le pays dans lequel ils décollent serront soumis aux rêglements prescrits par la directive. La Chine, le Japon et Taiwan et leurs compagnies d’aviation respectives devront tous s’adapter aux nouvelles impositions de la directive. Les réactions de ces trois pays serront sans doute différentes considérant le fait que leurs situations geopolitiques respectives sont différentes: la Chine est un pays classé en voie de dévèloppement, le Japon est un pays industrialisé et c’est au Japon que le Protocol de Kyoto a été ratifié, Taiwan est un pays qui n’est pas un pays reconnu par la majorité des pays membres de l’ONU. Quels serront leurs points de vue et leurs réponses a cette nouvelle directive? Comment ferront’ils face au changement climatique? Bien que le mécanisme d’échange de gaz à effets de serre ait encore des lacunes à combler, cet article propose d’agrandir le spectre de la directive et de créer une zone asiatique à l’interieur de laquelle les gaz à effet de serre pourraient être échangés et vendus. En effet, cette startégie permet de stimuler la structure industrielle de ces pays et aussi d’ameliorer l’efficacité énergétique. Pour atteindre cet objectif il faudra une coopération soutenue entre ces pays basée sur le respect mutuel. iv Table of Contents Acknowledgements i Abstract ii Résumé iv Table of Contents v List of Acronyms viii Chapter 1 Introduction 1 1.1 Raising the curtain 1 1.2 Purpose and scope of this thesis 3 Chapter 2 Reviews of background knowledge 6 2.1 Scientific evidence 6 2.1.1 The greenhouse effect: a double edged sword 6 2.1.2 The GHGs emitted from an airplane 9 2.2 The Kyoto Protocol: three flexibility mechanisms 11 2.2.1 Emissions trading 11 2.2.2 Clean Development Mechanism & Joint Implementation 12 2.2.3 The exclusion of aviation 14 2.3 The International Civil Aviation Organization’s Role in combating Climate 15 Change 2.3.1 The International Civil Aviation Organization: the cradle of modern aviation 15 formed by the Convention on International Civil Aviation 2.3.2 The ICAO’s Standards and Recommended Practices and their legal status 16 2.3.3 Other ICAO Documents related to Emissions trading: Resolutions, working 19 papers and guidelines 2.4 The European Union Emissions trading Scheme 21 2.4.1 Historical introduction 22 2.4.2 The legislative procedure to include aviation into the EU ETS 24 2.5 The role the International Air Transport Association plays at this stage 24 v Chapter 3 The new EC Directive including flight in the EU ETS 27 3.1 The environmental law principles that the EU adopted in the Directive 27 3.1.1 Sustainable development principle 28 3.1.2 Precautionary principle 30 3.1.3 Polluter pays principle 32 3.2 The runway the EU paved 33 3.2.1 The scope of the Directive 33 3.2.2 What kind of aviation activities are included in this directive? 34 3.2.3 Method of allocation of allowances for aviation activities 36 3.2.4 Monitoring,
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