Addressing Sectoral Emissions outside the United Nations Framework Convention on Climate Change: What Roles for Multilateralism, Minilateralism and Unilateralism?

Authors

  • Kati Kulovesi


Abstract

It is commonly assumed that a coordinated international legal response would be the best way to mitigate climate change. Finding an effective solution for all key countries and sectors is, however, proving to be a considerable challenge. This article focuses on attempts to address sectoral emissions from international aviation and maritime transport outside the United Nations Framework Convention on Climate Change (UNFCCC). It highlights that emissions from these two sectors are growing significantly and have been discussed under the auspices of the International Civil Aviation Organization and International Maritime Organization for nearly two decades without an effective multilateral solution. The article argues that the lack of global agreement on how to address emissions from these two sectors has increased the temptation for independent action. Most notably, the European Union has already included emissions from all flights to and from European airports, including those by foreign airlines, into its emissions trading scheme and is in the process of considering measures to address emissions from international maritime transport. This has sparked both a heated political row and legal debate on the permissibility of unilateral trade measures to mitigate climate change. Against this background, the article analyzes whether and how independent action can promote mitigation action in these sectors, and whether it should be seen as unhelpful climate unilateralism or useful ‘minilateralism’ and migration of legal norms that serve to advance the ultimate objective of avoiding dangerous anthropogenic climate change.

Introduction

One of the key challenges for global climate policy is how to enhance action on climate change mitigation rapidly given the continuing growth of greenhouse gas emissions. While creating a fair, multilateral legal framework under the United Nations Framework Convention on Climate Change (UNFCCC)1 remains the ideal, finding a solution that is acceptable to all countries and involves adequate action from all the necessary actors, sectors and sources is proving a considerable challenge. In accordance with the outcome of the UN Climate Change Conference in Durban in December 2011, negotiations to ‘develop a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all parties’ began in May 2012 and are scheduled to end in 2015 at the latest.2 The outcome should be ready for adoption by the 21st Conference of the Parties (COP), and come into effect and be implemented from 2020 onwards.3 However, while a new negotiating process towards an outcome that applies to all parties has been launched, the implementation of a new multilateral climate treaty still remains a relatively distant prospect.4

Against this background, this article examines opportunities and sticking points on the road towards promoting sectoral mitigation action outside the UNFCCC through multilateral, minilateral and unilateral means. To do so, it uses the current action (and inaction) to address sectoral emissions from bunker fuels – in particular, emissions from international aviation – as an example. Emissions from the international aviation and shipping sectors are subject to special treatment under the UNFCCC. Multilateral efforts outside the UNFCCC framework to reduce the growth of emissions from these two sectors have so far failed to yield adequate results. The recent independent action by the European Union (EU) on international aviation emissions has given rise to a boiling international dispute whereby the EU has been accused of, inter alia, using unilateral trade measures and exercising extraterritorial jurisdiction in violation of international law,5 and failing to adequately reflect the principle of ‘common but differentiated responsibilities and respective capabilities’ (CBDRRC) in the design of its aviation scheme.6 A focus on the aviation sector therefore makes it possible to examine the pros and cons of sectoral action outside the UNFCCC in light of concrete examples.

While the substantive focus of this article is on the question of sectoral emissions, it also discusses the respective roles of multilateralism, minilateralism and unilateralism in climate change mitigation. ‘Multilateralism’ is generally understood as international governance where States act together on the basis of certain rules and principles.7 Key examples of multilateral efforts include the UNFCCC and the international trade regime under the World Trade Organization (WTO).

While multilateralism tends to be open to everyone, ‘minilateralism’ refers to more limited international cooperation – in some contexts, it has also been called ‘plurilateralism’ or ‘bilateralism’.8 The notion of ‘minilateralism’ has been used by economists when studying regionalism and other forms of trade and economic cooperation between countries, and the impact of such cooperation on multilateral efforts.9 Scholars of international relations have also invoked minilateralism in response to the perceived failure of multilateralism. Some have gone as far as to call for abandoning the ‘fool's errand’ of trying to get 200 countries to agree in a multilateral setting, and have turned instead to minilateralism, depicted as a ‘more targeted approach’ that would ‘bring to the table the smallest possible number of countries needed to have the largest possible impact on solving a particular problem’.10 In the context of climate change, the Asia-Pacific Partnership on Clean Development and Climate, the Major Economies Process by the United States and the process leading to the Copenhagen Accord have been used as examples of ‘exclusive minilateralism’ that attempts to bring together a smaller number of key countries to make critical decisions.11 One of the challenges is that when acting minilaterally, countries could adopt practices that conform only to their own interests, violate universal principles and discriminate against others.12

Unilateralism, finally, is a notion that is used frequently but that is devoid of legal meaning.13 As Boisson de Chazournes argues, States often engage in various kinds of unilateral acts when exercising their sovereignty.14 However, the notion of ‘unilateralism’ tends to have a negative connotation, and is seen as ‘a hegemonic weapon allowing the stronger to impose its will on the weaker’, raising issues of fairness and equity.15 In the climate change context, for example, the conditionalities relating to developing country mitigation set by the United States for its (non-)ratification of the Kyoto Protocol have been used as examples of a ‘policy forging’ type of unilateralism.16 In the trade law context, trade measures by the United States to protect sea turtles and dolphins are classic and highly controversial examples of unilateralism.17 However, as Shaffer and Bodansky suggest, permitting some forms of unilateral action, subject to principled substantive and procedural constraints, may be a better option than the alternative whereby States effectively lose their ability to develop policies to protect environmental interests in situations where multilateral action is vetoed or blocked.18

The article concludes that, when applied to the question of sectoral emissions, each of the three approaches – multilateral, minilateral and unilateral – brings to the fore certain legal and political challenges. However, each also holds some potential to advance mitigation outside the UNFCCC during a critical period in the battle against climate change. Such potential could arguably be actualized by taking advantage of the increasingly multilayered global legal reality, characterized by interaction between a plural mix of legal regimes and jurisdictions in terms of regulating climate change.19 In more specific terms, the conclusion is that where multilateralism fails, the potential for minilateral and unilateral legal action to advance the ultimate objective of the UNFCCC to prevent dangerous anthropogenic climate change should be explored.20 Where minilateral or unilateral action is being taken, attention should turn towards ensuring that such action does not violate international legal rules and principles.

Sectoral Emissions: The Multilateral Approach

While it does not contain binding mitigation targets, the UNFCCC covers, in principle, all sources and sinks of greenhouse gas emissions.21 It therefore creates the basis for a comprehensive multilateral legal framework for climate change mitigation. With its 195 Parties, it also enjoys a high degree of legitimacy as a forum to address climate change. Under the Kyoto Protocol, which contains legally binding mitigation targets for developed countries, Annex I parties' emission reductions are calculated on the basis of a basket of six greenhouse gases that are listed in Annex A, along with five main sectors and source categories.22 In terms of specific sectors, a rather complicated set of rules has been developed under Articles 3.3 and 3.4 of the Kyoto Protocol on how emissions and removals from sinks should count towards Annex I parties' commitments.23 Furthermore, as will be explained below, emissions from international aviation and maritime transport (i.e., so-called ‘bunker fuels’) are subject to particular treatment under the Kyoto Protocol.

While the UNFCCC and the Kyoto Protocol are comprehensive in their coverage, they are vague concerning mitigation action in particular sectors, deferring such decisions to the national level. Sectoral approaches have, however, been subject to a lively discussion over the years.24 It has been argued that they could: broaden participation in mitigation efforts to countries that are not prepared to take on economy-wide targets; simplify negotiations in sectors where there are relatively few actors; enable countries to target such sectors where urgent action is necessary; and address competitiveness concerns.25 There have been various proposals to promote sectoral approaches under the UNFCCC, including through sectoral trading and crediting mechanisms.26 It has also been suggested that sectoral approaches should be developed outside the UNFCCC framework – for example, through agreements concluded with the relevant industries.27 The issue has, however, been politically charged and the development of legal frameworks for sectoral approaches has not advanced significantly either within or outside the UNFCCC. For example, COP 17 in Durban recently agreed to ‘continue considering a general framework for cooperative sectoral approaches and sector-specific actions’ with a view to adopting a decision at COP-18.28 In terms of specific sectors, the COP made a request for the Subsidiary Body for Scientific and Technological Advice (SBSTA) to consider questions concerning agriculture at its next session, but on the traditionally controversial question of aviation and shipping emissions, the COP merely decided to ‘continue its consideration’ of the issue.29 SBSTA-36 subsequently exchanged views on agriculture, but was unable to reach any substantive conclusions.30 The current situation is therefore that, in theory, sectoral approaches hold potential to promote mitigation action in critical sectors and among critical actors. In practice, however, there are no advanced examples of multilateral legal frameworks on sectoral emissions. In this respect, efforts to address aviation and shipping emissions are probably the most advanced, and the focus below will be on these two sectors.

Multilateral (In)Action on Bunker Fuels inside the UNFCCC

The current shares of international aviation and shipping of the global total emissions are a relatively modest 2%31 and 2.7%, respectively.32 However, the projected increase in emissions from these sectors is a reason for concern from the perspective of climate change mitigation. To limit global average temperature increase to below 2° Celsius (i.e., the current goal under the UNFCCC) global emissions need to be around 44 gigatons of carbon dioxide equivalent (CO2e) annually by 2020.33 This level could also be consistent with the more ambitious target of limiting warming to 1.5° Celsius, but the subsequent decline in emissions beyond 2020 would need to be faster than for the 2°C target.34 However, the UN Environment Programme has estimated that there is currently a gap of 6–11 gigatons of CO2e between the emission levels required in 2020 and those pledged under the Copenhagen Accord.35

The global carbon budget is already tight and sharp emission increases from any sector, including aviation and shipping, will be problematic for multilateral climate mitigation objectives. It has been estimated that emissions from civil aviation globally will rise from approximately 415 million tons of carbon dioxide (CO2) in 1992 to 1,440–2,302 million tons in 2050.36 The International Civil Aviation Organization (ICAO) estimates that air passenger traffic will grow by an average of 4.8% per year by 2036.37 The growth is projected to continue also in the longer term up to 2050.38 The radiative forcing of aviation emissions is higher than that of other transport emissions because they are released directly into the upper troposphere and lower stratospheres where they alter the concentrations of ozone and methane, and form condensation trails.39 This means that aviation emissions are more harmful than other transport emissions. Concerning greenhouse gas emissions from international maritime transport, the International Maritime Organization (IMO) estimates that they could increase by a factor of two or three by 2050 (compared to 2007 levels) if no regulations to control them are put in place.40 However, the IMO has identified significant potential to reduce emissions from international maritime transport by 25–75% through technical and operational measures.41 These significant growth projections for emissions from the international shipping and aviation sectors are a reason for concern from the perspective of climate change mitigation.

While aviation and shipping emissions have been on the agenda of the UNFCCC since the first COP in 1995, no concrete measures to control them have been agreed. Instead, the main sticking points have related to the allocation of emissions from international aviation and shipping, their reporting, and institutional and policy options to control these emissions.42 Emissions from the international aviation and maritime transport sectors are specifically mentioned in Article 2.2 of the Kyoto Protocol, which indicates that Annex I parties ‘shall pursue limitation or reduction of emissions of greenhouse gases … from aviation and marine bunker fuels, working through the ICAO and the IMO respectively’. Otherwise, emissions from international aviation and maritime transport are currently reported under the UNFCCC and the Kyoto Protocol, but excluded from the national total emissions.43 They are thus not counted towards Annex I parties' emission targets under the Kyoto Protocol.

Various proposals have been made in the ongoing long-term negotiations to take stronger action on bunker fuels under the UNFCCC, but no significant advances have been made in this regard.44 In this sense, the UNFCCC and the Kyoto Protocol have not been able to create an effective legal framework for controlling emissions from international aviation and maritime transport. Instead, negotiations under the UNFCCC tend to focus on parties' different views on whether the more stringent action should be taken under the UNFCCC, or whether this issue should be handled through the ICAO and the IMO.

Multilateral (In)Action on Bunker Fuels outside the UNFCCC

As specialized agencies of the UN, the IMO and ICAO have well-established and longstanding roles in regulating various aspects of international shipping and aviation, respectively. Both organizations have also taken a growing interest in climate change issues. The ICAO has been addressing issues related to climate change and aviation for a number of years. The topic is regularly taken up by the Committee on Aviation Environmental Protection of the ICAO Council. In 2007, the ICAO also created a special Group on International Aviation and Climate Change.45 The Group's work led to an ICAO programme of action on climate change, endorsed by ICAO's High-level Meeting on International Aviation and Climate Change in October 2009.46 The main governing body of the ICAO is the ICAO Assembly, which convenes every three years. Its most recent session in 2010 adopted a global aspirational goal of improving aviation fuel efficiency by 2% annually by 2050, and agreed to work towards an aspirational global goal of capping greenhouse gas emissions from the aviation sector at their 2020 levels.47 The next Assembly in 2013 is due to review these targets and explore a possible global long-term goal.48 The ICAO Assembly also agreed on guiding principles for market-based measures and decided to explore a global trading scheme for international aviation.49 Furthermore, the ICAO is working towards a CO2 certification standard for aircrafts and continues to explore sustainable alternative fuels for aviation.50 The ICAO Member States have also been invited to submit voluntary action plans with information on emission reductions and assistance needs.51

The IMO is responsible for the regulation of international shipping.52 The IMO's Marine Environment Protection Committee (MEPC) has been working to identify and develop the mechanisms needed to achieve limitation or reduction of greenhouse gas emissions from international shipping.53 In July 2011, its work resulted in the adoption of mandatory measures to reduce greenhouse gas emissions from international shipping by parties to Annex VI of MARPOL, which contains regulations for the prevention of air pollution from ships.54 In more specific terms, a new chapter was added to Annex VI on ‘Regulations on energy efficiency for ships to make mandatory the Energy Efficiency Design Index (EEDI) for new ships, and the Ship Energy Efficiency Management Plan (SEEMP) for all ships’.55 Other amendments add new definitions and requirements for survey and certification, including the format for the new International Energy Efficiency Certificate.56 With some exceptions, the new regulations apply to all merchant ships of 400 gross tonnage and above, regardless of the national flag they fly or the nationality of the owner, and are expected to enter into force globally on 1 January 2013.57 The CO2 emission reduction level is initially set at 10%, and will be tightened every five years until the period from 2030 to 2050 when a 30% reduction will be required, calculated from a reference line representing the average efficiency for ships built between 2000 and 2010. According to the IMO, this amendment represents ‘the first ever legally binding global greenhouse gas reduction regime for an international industry sector’.58 By contrast, the IMO's work on market-based measures remains controversial and progress has not been made, which is also due to divergences over the principle of CBDRRC.

As this brief overview demonstrates, the ICAO and IMO are taking a growing interest in climate change issues. They have come under pressure to do so from within their membership and due to proposals made in the long-term negotiations under the UNFCCC to step up action on bunker fuels. The ICAO has recently adopted non-binding goals to improve aviation fuel efficiency and reduce greenhouse gas emissions. The IMO, in turn, has adopted binding measures to improve energy efficiency and reduce shipping emissions. Both organizations are, however, engaged in longstanding and controversial debates over market-based measures. Overall, despite recent advances, the multilateral frameworks created under the ICAO and IMO – or under the UNFCCC – for reducing emissions from aviation and shipping remain relatively weak. Most notably, the ICAO has not been able to agree on binding measures, and neither organization has been able to create a carbon price. As the IMO has indicated:

[T]echnical and operational measures will not be sufficient to satisfactorily reduce the amount of [greenhouse gas] emissions from international shipping in view of the growth projections of human population and world trade. Therefore, market-based mechanisms have also been considered and would serve two main purposes: providing a fiscal incentive for the maritime industry to invest in more energy efficient manner and off-setting of growing ship emissions.59

The general understanding is therefore that the current legal frameworks under the IMO and ICAO are inadequate to prevent international aviation and maritime emissions from growing manifold by 2050. In any case, the growth projections for these two sectors pose a challenge from the point of view of global climate change mitigation efforts and the 2°C target.

Beyond Multilateralism: What Roles for Minilateralism and Unilateralism in Addressing Sectoral Emissions?

As we have seen above, the UNFCCC and the Kyoto Protocol left ample leeway for their parties to choose in which domestic sectors to pursue actions that will result in climate change mitigation. Furthermore, no significant progress has been made to address sectoral emissions under the ICAO and IMO. Multilateral legal frameworks for addressing sectoral emissions therefore remain rather immature. However, if one looks at action on sectoral emissions beyond the multilateral level, the relevant legal frameworks become more advanced. Several countries have either set up greenhouse gas emissions trading schemes or are preparing to do so, often with the objective of targeting energy-intensive industrial sectors. The most prominent example is the EU emissions trading scheme (ETS), which covers emissions from sectors such as power generation, iron and steel, oil refineries, cement and other building materials, as well as pulp and paper.60 In the domestic transport sector, many countries are taking measures to reduce emissions by, for example, promoting biofuels or establishing energy efficiency standards designed to reduce CO2 emissions from passenger cars. One of the key examples is the EU Member States, which have adopted legislation to increase the share of renewable energy in the transport sector to 10% by 2020,61 and reduce CO2 emissions from passenger cars in order to achieve average fleet emissions of 130 grams of CO2 per kilometre by 2015.62 Several other countries, including Argentina, Brazil, Thailand and the Philippines have also adopted measures to promote bioenergy in the transport sector.63 For this sector as well as others, various binding and non-binding energy efficiency and technology standards and benchmarks have also been developed. The WTO, for example, has already considered trade implications of fuel economy standards for cars; eco-design requirements for energy-using products; energy efficiency programmes for consumer products; and emission limit values for diesel engines.64

While some of these sectoral measures only affect domestic players, many have transboundary consequences. For example, energy efficiency standards and similar requirements can easily affect those importing specific products to the country in question – which is why the WTO has been involved in considering them. From the perspective of international trade law, a classic distinction has been made between standards that apply to products themselves, and those that apply to processes and production methods. Divergent views remain concerning the compatibility of the latter category of measures with WTO law.65 This links to the lively debate that is taking place concerning the relationship between climate change and trade, and the role of border carbon adjustments in particular.66 The very rationale of border carbon adjustments relates to defects at the multilateral level: their purpose is to address concerns over carbon leakage and environmental integrity in a situation where an effective multilateral legal framework for climate change mitigation is lacking. These longstanding debates form an important part of the context in which the current row over international aviation emissions takes place. The next section begins by describing the EU's controversial trading scheme for international aviation emissions, followed by a discussion of its legal and political implications.

The EU Emissions Trading Scheme for Aviation Emissions

The absence of an effective legal framework for aviation emissions despite years of multilateral efforts under the UNFCCC and ICAO raises the question what, if anything, should be done about aviation emissions pending a multilateral solution. For a relatively long time no action was taken apart from governments debating the issue under the UNFCCC and ICAO. Finally, the EU took a decision to include aviation emissions into the ETS from 2012 onwards. In a controversial move, it also decided to draw the boundaries of the scheme in such a way that it applies to all flights landing in, and taking off from, EU airports. In other words, the scheme also applies to foreign airlines. The relevant Directive 2008/101/EC67 was formally adopted back in 2008, but it went largely unnoticed until the 2012 implementation deadline drew closer.

The basic design of the EU ETS for aviation emissions is that it sets a cap for aviation emissions, calculated on the basis of the average of annual emissions in 2004–2006.68 In 2012, the cap will be 97%, and from 2013 onwards, it will be 95%.69 Most of the allowances will be distributed to airlines free of charge, while up to 15% will be auctioned.70 The free allowances will be distributed on the basis of criteria, including the activity of each aircraft operator in 2010 in terms of passenger numbers, freight and total distance travelled.71 Airlines included in the scheme must have in place a system for the annual monitoring and reporting of their greenhouse gas emissions.72 Emissions are calculated based on the entire flight departing from or arriving at an EU airport. By the end of April each year, airlines included in the scheme must surrender allowances corresponding to their verified emissions in the previous year.73 The first surrendering of allowances is therefore scheduled to take place in April 2013. The scheme is being implemented in the EU-27 Member States as well as in Iceland, Liechtenstein and Norway.

As a first legal step in the international row over the EU aviation scheme, American Airlines, Continental Airlines, United Airlines and the Air Transport Association of America (ATAA) launched in 2009 a legal action against the scheme through the British courts. This led to a request for a preliminary ruling from the Court of Justice of the European Union (CJEU) concerning the validity of Directive 2008/101/EC in light of its alleged incompatibility with certain rules and principles of international law.74 In December 2011, the CJEU affirmed the validity of Directive 2008/101/EC, finding its provisions to be compatible with international law.75 As described below, the outcome failed to satisfy key foreign countries whose airlines will be affected by the scheme.

In the preliminary ruling request before the CJEU, one of the key questions concerned the extraterritorial scope of the scheme – in other words, the fact that foreign airlines are required to surrender emission allowances also concerning those parts of their flights that take place outside the EU airspace. The legality of extraterritorial trade measures to promote environmental protection has been subject to a longstanding debate.76 In the key part of its judgment, the CJEU ruled that

the fact that, in the context of applying European Union environmental legislation, certain matters contributing to the pollution of the air, sea or land territory of the Member States originate in an event which occurs partly outside that territory is not such as to call into question, in the light of the principles of customary international law capable of being relied upon in the main proceedings, the full applicability of European Union law in that territory.77

The CJEU also pointed out that

as European Union policy on the environment seeks to ensure a high level of protection in accordance with Article 191(2) TFEU, the European Union legislature may in principle choose to permit a commercial activity, in this instance air transport, to be carried out in the territory of the European Union only on condition that operators comply with the criteria that have been established by the European Union and are designed to fulfil the environmental protection objectives which it has set for itself, in particular where those objectives follow on from an international agreement to which the European Union is a signatory, such as the Framework Convention and the Kyoto Protocol.78

The essential logic is similar to that used by certain WTO scholars in the context of the debate on processes and production methods – namely that measures distinguishing products based on the way in which they have been produced are territorial rather than extraterritorial measures because they are applied within or at the border, and therefore fall within the jurisdiction of the regulating State.79 Also Scott and Rajamani have indicated that the EU aviation scheme is extraterritorial only ‘when viewed through the lens of a production-based system boundary’ but ‘merely differently territorial when viewed through a system boundary that posits market access as key’.80 In other words, the ‘territorial connecting factor to which the EU attaches importance is market access, be it for a departing or landing flight’.81 While there are thus competing ways to draw jurisdictional boundaries,82 there is also solid support for the legal approach chosen by the EU to use market access as the decisive criterion. Indeed, the validity of this approach was affirmed by the CJEU in its judgment, which also sought to emphasize the connection between the EU measure and multilaterally agreed objectives under the UNFCCC and the Kyoto Protocol.

In contrast to the territorial argument, Scott and Rajamani have criticized the EU scheme from the perspective of the principle of CBDRRC, raising concerns that the principle will not be given adequate weight in the application of the scheme.83 India has made a similar argument under the UNFCCC.84 Accordingly:

The scheme stands in violation of the UNFCCC as it does not respect the principles of CBDR of developed and developing countries and proposes to operate the ETS outside the EU boundaries without multilateral or bilateral consent. Further, EU member states have the discretion to determine how revenues from the auctioning of [greenhouse gas] allowances will be spent. Although intended for EU mitigation activities, and adaptation in the EU and developing countries, there is no obligation to deploy the revenues thus. The FCCC balance of obligations requires developed countries to provide financial assistance to developing countries, yet here developing country airlines will be contributing to climate and other activities in the EU. In this instance, unilateral measures taken in the name of climate protection turn the FCCC-Kyoto balance of obligations on their head.85

These are interesting views – particularly with respect to the CBDRCC and climate finance.86 They are also relevant for my argument below that instead of the traditional focus on questions concerning extraterritorialism and unilateralism, attention should turn towards legal preconditions for minilateral action – that is, towards ways of making sure that multilateral rules and principles, including CBDRCC, are given due consideration in the design and application of minilateral measures.

Despite the ruling by the CJEU that the EU aviation scheme is compatible with international law, the legal row concerning the scheme began to escalate towards the end of 2011. A coalition of some 27 countries, including Brazil, China, India, Russia, South Africa and the United States, has emerged, opposing the inclusion of international aviation emissions in the EU ETS.87 Some of these countries have either considered or adopted legal measures to prevent their airlines from participating in the scheme. The United States considered the European Union Emissions Trading Prohibition Act 2011, which passed the House of Representatives in October 2011 and would prohibit American-based airlines from participating in the ETS if a counterpart bill passed the Senate and the President signed it into law.88 Also, China has prohibited its airlines from participating in the ETS and increasing fares or imposing other charges as a result of the scheme; and India has instructed its airlines not to participate in the scheme.89 While the vast majority of foreign airlines have thus far complied with their reporting obligations concerning aviation emissions under the EU ETS, the Commission drew attention to ‘systematic non-reporting’ of their 2011 emissions by ten commercial airlines based in China (eight) and India (two).90

In accordance with Directive 2008/101/EC, airlines failing to surrender the required number of emission allowances will incur an excess emissions penalty of €100 for each tonne of CO2 equivalent emitted for which the airline has not surrendered allowances.91 Such a payment will not release the airline from the obligation to surrender the missing allowances. Ultimately, a failure to comply with the Directive may lead to a decision by the European Commission that the airline in question is banned from operating in the EU.92 This is the legal consequence that airlines from the United States, China and India could ultimately face if choosing to comply with legislation in their host countries rather than the provisions of Directive 2008/101/EC applicable in the EU. In light of this, it is clear that the aviation row holds the potential to become a complex legal dispute between overlapping jurisdictions.

The EU's ‘Minilateral’ Way Forward: An Assessment

Is the EU's independent approach to regulating aviation emissions a beneficial contribution to the evolution of climate law and does the scheme make a useful contribution to the mitigation of sectoral emissions outside the UNFCCC legal framework? Before attempting to answer these questions, it is useful to consider the broader legal reality in which the debate concerning the scheme unfolds. Here I wish to emphasize my understanding that the global legal landscape is no longer characterized by clear-cut distinctions between the ‘international’ and ‘national’ legal orders, or ‘multilateral’ and ‘unilateral’ action.93 On the contrary, it has been argued that a new body of global environmental law has emerged, which is international, national and transnational in character all at once, that is blurring many of the traditional legal divisions and, at the same time, promoting integration and harmonization.94 While the concept of global environmental law would seem to require further exploration, I have argued elsewhere that the emergent field of climate law is increasingly characterized by interactions between a plural mix of legal regimes and systems.95 As climate change is gradually being mainstreamed in various countries and institutions, the legal framework for climate change mitigation is no longer based solely on the multilateral legal framework under the UNFCCC and the Kyoto Protocol, but also on norms emanating from multiple and partly overlapping international, regional, national, sub-national and transnational sources of legal authority.96 Such plurality has the effect of making the legal landscape around climate change dynamic: the implementation of multilateral environmental agreements, including the UNFCCC is taking place through national, bilateral and minilateral regulatory efforts. In addition to giving effect to specific treaty obligations, such efforts can seek to advance more general treaty objectives where agreement on specific multilateral implementation measures is difficult97 – or they can even attempt to influence the multilateral level.98 Therefore ‘[t]he choice is no longer between unilateralism, multilateralism or “doing nothing” but rather between a wider array of more or less collaborative forms of mini-lateral support to multilateralism’.99 The point that I thus wish to make here is that where agreement on specific multilateral measures is hard to find – as tends to be the case with respect to climate change mitigation in general and sectoral emissions from international aviation and maritime transport in particular – minilateral efforts can play a role in advancing the implementation of multilaterally agreed treaty objectives, the ultimate objective of the UNFCCC to prevent dangerous anthropogenic climate change and the 2°C target adopted by COP 16.

Against this background, the EU scheme for aviation emissions can be seen as a part of a complex trend whereby environmental law is becoming globalized and legal systems interact, complement each other and sometimes also seek to influence each other.100 The scheme is clearly not multilateral as it is not based on a legal framework created, for example, under the UNFCCC or ICAO. Many scholars have classified it as a unilateral measure.101 Scott and Rajamani, for example, have argued that the EU is seeking to expand its climate change law through ‘contingent unilateralism’ and by including aviation emissions in the emissions trading scheme, the EU ‘has adopted a unilateral measure of far-reaching significance’.102 However, taking into consideration the scheme's scope and the number of participating countries, I would argue that the EU's scheme for aviation emissions is best characterized as a minilateral measure. As explained above, the notion of ‘minilateralism’ has been used, inter alia, in the context of international trade relations to describe regional economic cooperation that takes place outside the multilateral framework under the WTO.103 Like regional economic cooperation in Europe, the EU emissions trading scheme for aviation emissions involves thirty countries from one region, including three countries (Iceland, Liechtenstein and Norway) that are members of the European Economic Area–European Free Trade Association but that are not members of the EU. While I disagree with those proposing to abandon multilateralism in favor of minilateralism,104 I would argue that the EU aviation scheme makes a useful contribution to the evolution of climate law and towards the implementation of the ultimate objective of the UNFCCC. In a similar vein, Shaffer and Bodansky have argued that: ‘The alternative of relying on formal treaty negotiations may be too little too late to prevent dangerous climate change, and thus may be illegitimate in terms of outcomes, whether for current or future generations.’105 In other words, the EU aviation scheme ‘may well be an important, albeit small, step in achieving the necessary level of emissions reductions to stabilize the earth's climate’.106

The key challenge with aviation emissions and multilateralism is that the ICAO has not been able to use its decision-making authority despite efforts spanning more than two decades. Given the lack of progress under the ICAO, the international regulatory space that the EU scheme arguably occupies looked rather empty and void. As discussed above, the projected growth of aviation emissions is problematic from the point of view of the UNFCCC's ultimate objective of preventing dangerous anthropogenic climate change and the 2°C target formally agreed to at COP 16.107 In my view, the key question is therefore not whether European countries were entitled to take minilateral action on aviation emissions, but whether the occupation of the regulatory space took place in such a way that violates international rules and principles. Here, I would argue that – by and large – it did not do so. While divergent views will remain, there is a sound legal justification for the territorial scope of the scheme, as also affirmed by the CJEU. As Scott and Rajamani have argued, more problematic may be the role of the principle of CBDRRC in the design of the scheme; including the questions as to whether and how the EU should have taken this principle more carefully and explicitly into account.108 For this reason, it would be useful for the debate to turn away from the traditional focus on the permissibility of extraterritoriality and unilateralism towards international rules, principles and procedures that curtail EU-type ‘minilateral’ action that seeks to advance multilateral objectives in the absence of a global agreement.

Conclusion: Multilateralism, Unilateralism or Minilateralism?

Along with experiences from multilateral cooperation on aviation emissions under the UNFCCC and ICAO over the past decades, the EU aviation scheme provides a valuable opportunity for assessing the prospects and drawbacks of sectoral climate change action both within and outside the multilateral context. For one, there is no question that a multilateral legal framework for climate change mitigation remains crucial given the global scale of the problem and the fact that those particularly vulnerable to the impacts of climate change have neither the means to prevent the problem nor are they able to adapt to its negative consequences. Still, as controversies at the three most recent UNFCCC COPs have vividly demonstrated, creating a multilateral legal framework for effective climate change mitigation for all relevant countries and sectors is an arduous task and progress towards this objective between 1992 and 2012 can, at best, be described as incremental.

Against this background, the question is increasingly about what to do while the multilateral process continues to progress through incremental steps. As explained above, more mitigation action will be needed by 2020 for the world to be on track to meet the 2°C target.109 While continuing multilateral efforts under the UNFCCC, ICAO and IMO in good faith is crucial, unilateral, bilateral and minilateral mitigation efforts should also be explored and promoted where appropriate. For the most part, the possible transboundary legal implications of such efforts will come in nonbinding forms as regulatory models and innovations are disseminated through informal cooperation at various transnational settings. For those efforts whose transboundary reach is based on binding legislation in one jurisdiction, attention should turn to their compatibility with the relevant international legal rules and principles. Also important here is the existence of institutional mechanisms and processes for those who feel they have been unjustifiably affected by decisions taken by others. For example, the forum on response measures under the UNFCCC, which focuses on the impacts of climate change mitigation measures implemented by developed countries on developing countries, could play a role. While the question of response measures remains sensitive in the UNFCCC negotiations, the forum could provide for a multilateral dialogue to examine the implications of minilateral (and unilateral) climate action designed to promote the ultimate objective of the UNFCCC. In some cases, the WTO dispute settlement mechanism could also enter the scene if the measure in question falls under the WTO Agreements. In all cases, however, the focus should shift from the relatively simplistic choice between multilateral action, unilateral action or no action110 towards exploring ways in which interaction between a plural mix of legal regimes and jurisdictions in a global context can best serve the ultimate objective of the UNFCCC to avoid dangerous anthropogenic climate change.

  1. 1

    United Nations Framework Convention on Climate Change (New York, 9 May 1992; in force 21 March 1994) (‘UNFCCC’).

  2. 2

    Decision 1/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action (UN Doc. FCCC/CP/2011/9/Add.1, 15 March 2012), paragraphs 2 and 4.

  3. 3

    Ibid.

  4. 4

    I have discussed this in detail in K. Kulovesi, ‘A New Chapter in the UN Climate Change Negotiations? First Steps under the Durban Platform for Enhanced Action’, 3:2 Climate Law (2012), 181.

  5. 5

    For an overview of legal arguments in this regard, see K. Kulovesi, ‘Make Your Own Special Song Even If Nobody Else Sings Along: International Aviation Emissions and the EU Emissions Trading Scheme’, 2:4 Climate Law (2011), 535.

  6. 6

    J. Scott and L. Rajamani, ‘EU Climate Change Unilateralism’, 23:2 European Journal of International Law (2012), 469.

  7. 7

    L. Powell, In Defense of Multilateralism (Yale Centre for Environmental Law and Policy, 2003), found at: <http://www.yale.edu/gegdialogue/docs/dialogue/oct03/papers/Powell.pdf>.

  8. 8

    I. W. Zartman and S. Touval, ‘Introduction’, in: I. William Zartman and S. Touval (eds), The Extents and Limits of Multilateralism (Cambridge University Press, 2010), 1, at 3.

  9. 9

    This insight is based on F. Attiná, ‘Multilateralism and the Emergence of “Minilateralism” in EU Peacekeeping Operations’, 8:2 Romanian Journal of International Affairs (2008), 5, at 7. For an example of such an approach, see V.K. Aggarwal and R. Espa, Diverging Trade Strategies in Latin America: An Analytical Framework (University of Berkeley Center for Latin American Studies, 2003), found at <http://www.clas.berkeley.edu/Publications/workingpapers/AggarwalEspach/index.html>.

  10. 10

    M. Naím, ‘Minilateralism: The Magic Number to Get Real International Action’, Foreign Policy (July/August 2009), 5.

  11. 11

    J.S. McGee, ‘Exclusive Minilateralism: An Emerging Discourse within International Climate Change Governance?’, 8:3 Journal of Multidisciplinary International Studies (2011), 1, at 1, 12 and 20.

  12. 12

    See F. Attiná, n. 9 above, at 7. See also J.S. McGee, n. 11 above, at 22ff.

  13. 13

    L. Boisson de Chazournes, ‘Unilateralism and Environmental Protection: Issues of Perception and Reality Issues’, 11:2 European Journal of International Law (2000), 315.

  14. 14

    Ibid., at 316.

  15. 15

    Ibid., at 318.

  16. 16

    Ibid., at 326. The conditionalities were based on the Byrd-Hagel resolution adopted by the US Congress in 1997, indicating, inter alia, that the United States ‘should not be a signatory to any protocol to, or other agreement’ under the UNFCCC, which would mandate new developed country commitments ‘unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period’. See the Byrd-Hagel Resolution, 105th Congress, 1st Session, S. Res. 98, 25 July 1997, paragraphs 1 and 1(a).

  17. 17

    For a detailed discussion, see K. Kulovesi, The WTO Dispute Settlement System: Challenges of the Environment, Legitimacy and Fragmentation (Kluwer Law International, 2011), at 82–90.

  18. 18

    G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’, 1:1 Transnational Environmental Law (2011), 31, at 39.

  19. 19

    I have developed this argument in detail in K. Kulovesi, ‘Exploring the Landscape of Climate Law and Scholarship: Two Emerging Trends’, in: E.J. Hollo , K. Kulovesi and M. Mehling (eds), Climate Change and the Law (Springer, 2012).

  20. 20

    My thinking in this regard has been inspired by E. Morgera, ‘Bilateralism at the Service of Community Interests? Non-judicial Enforcement of Global Public Goods in the Context of Global Environmental Law’, 23:3 European Journal of International Law (2012, forthcoming).

  21. 21

    UNFCCC, n. 1 above, Articles 1.5, 1.7, 1.8 and 1.9. See also F. Yamin and J. Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (Cambridge University Press, 2004), at 77. There are, however, some limitations concerning greenhouse gases controlled by the Montreal Protocol.

  22. 22

    Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 10 December 1997; in force 16 February 2005), Annex A. The five main categories are: energy; industrial processes; solvents and other product use; agriculture; and waste.

  23. 23

    For recently agreed rules applicable in the post-2012 period, see Decision 2/CMP.6, Land Use, Land-use Change and Forestry (UN Doc. FCCC/CMP/2010/12/Add.1, 15 March 2011); and Decision 2/CMP.7, Land Use, Land-use Change and Forestry (UN Doc. FCCC/CMP/2011/10/Add.1, 15 March 2012).

  24. 24

    We have reviewed this discussion in K. Kulovesi and K. Keinänen, ‘Long-term Climate Policy: International Legal Aspects of a Sector Based Approach’, 6:3 Climate Policy (2006), 313, at 315–318.

  25. 25

    D. Bodansky, International Sectoral Agreements in a Post-2012 Climate Framework (Pew Center on Global Climate Change, May 2007), at 5–6.

  26. 26

    Submissions on sectoral approaches have been made, inter alia, under the Ad Hoc Working Group on Long-term Cooperative Action under the Convention since 2008. These are available at the relevant section of the UNFCCC website: <http://unfccc.int/bodies/awg-lca/items/4578.php>.

  27. 27

    See K. Kulovesi and K. Keinänen, n. 24 above, at 319–320 and 322.

  28. 28

    Decision 2/CP.17, Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (FCCC/CP/2011/9/Add.1, 15 March 2012), paragraph 74.

  29. 29

    Ibid., paragraphs 75 and 78.

  30. 30

    Subsidiary Body for Scientific and Technological Advice (SBSTA), Issues related to Agriculture, Draft Conclusions Proposed by the Chair (FCCC/SBSTA/2012/L.19, 25 May 2012).

  31. 31

    International Civil Aviation Organization (ICAO), Environmental Report 2010: Aviation and Climate Change (ICAO, 2010), found at: <www.icao.int/icao/en/env2010/environmentreport%202010.pdf>, at 31.

  32. 32

    International Maritime Organization (IMO), Second IMO GHG Study 2009 (IMO, 2009), found at: <http://www.imo.org/blast/blastDataHelper.asp?data_id=27795&filename=GHGStudyFINAL.pdf>, at 1.

  33. 33

    UNEP, The Emissions Gap Report: Are the Copenhagen Accord Pledges Sufficient to Limit Global Warming to 2°C or 1.5°C? (UNEP, 2010), at 10.

  34. 34

    Ibid., at 12–13.

  35. 35

    UNEP, Bridging the Emissions Gap: A UNEP Synthesis Report (UNEP, 2011), at 8.

  36. 36

    A. Macintosh and L. Wallace, International Aviation Emissions to 2025: Can Emissions be Stabilised without Restricting Demand? (Australian National University Center for Climate Change Law and Policy, 2008), found at: <http://law.anu.edu.au/CCLP/WP1_2008%20_International_aviation_emissions_to_2025.pdf>, at 8. The paper includes estimates from various studies.

  37. 37

    See ICAO, n. 31 above, at 32.

  38. 38

    Ibid.

  39. 39

    B. Metz, Controlling Climate Change (Cambridge University Press, 2010), at 156.

  40. 40

    See IMO, n. 32 above, at 1.

  41. 41

    Ibid.

  42. 42

    See F. Yamin and J. Depledge, n. 21 above, at 83; and S. Oberthür, ‘Institutional Interaction to Address Greenhouse Gas Emissions from International Transport’, 3:3 Climate Policy (2003), 191.

  43. 43

    See F. Yamin and J. Depledge, n. 21 above, at 84–85. See also, Decision 2/CP.3, Methodological Issues related to the Kyoto Protocol (UN Doc. FCCC/CP/1997/7/Add.1, 25 March 1998), paragraph 4.

  44. 44

    I have discussed these proposals in more detail in K. Kulovesi, n. 5 above, at 539.

  45. 45

    Consolidated Statement of Continuing ICAO Policies and Practices related to Environmental Protection, Appendix K: ICAO Programme of Action on International Aviation and Climate Change, ICAO Assembly Resolution A36–22 (2007).

  46. 46

    Declaration by the High-level Meeting on International Aviation and Climate Change, International Civil Aviation Organization, HLM-ENV/09 (2009).

  47. 47

    Consolidated Statement of Continuing ICAO Policies and Practices related to Environmental Protection – Climate Change, ICAO Assembly Resolution A37–19 (2010), paragraphs 4–6.

  48. 48

    Ibid., paragraphs 7–8.

  49. 49

    Ibid., paragraphs 13–18 and Annex.

  50. 50

    Ibid., paragraph 24.

  51. 51

    Ibid., paragraph 10.

  52. 52

    UNFCCC, Information Relevant to Emissions from Fuel Used for International Aviation and Maritime Transport: Note by the International Maritime Organization to the Thirty-fifth Session of the Subsidiary Body for Scientific and Technological Advice (UN Doc. FCCC/SBSTA/2011/MISC.9, 15 November 2011), at 17 (‘Note by the IMO’).

  53. 53

    Ibid.

  54. 54

    Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto: Inclusion of Regulations on Energy Efficiency for Ships in MARPOL Annex V (MEPC Resolution 203(62), 15 July 2011), Annex 19.

  55. 55

    See Note by the IMO, n. 52 above, at 19.

  56. 56

    Ibid.

  57. 57

    Ibid.

  58. 58

    Ibid.

  59. 59

    IMO, Greenhouse Gas Emissions, found at: <http://www.imo.org/ourwork/environment/pollutionprevention/airpollution/pages/ghg-emissions.aspx>.

  60. 60

    Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 Establishing a Scheme for Greenhouse Gas Emission Allowance Trading within the Community and Amending Council Directive 96/61/EC, [2003] OJ L275/32.

  61. 61

    Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the Promotion of the Use of Energy from Renewable Sources and Amending and Subsequently Repealing Directives 2001/77/EC and 2003/30/EC, [2009] OJ L140/16.

  62. 62

    Regulation 443/2009/EC of the European Parliament and of the Council of 23 April 2009 Setting Emission Performance Standards for New Passenger Cars as Part of the Community's Integrated Approach to Reduce CO2 Emissions from Light-duty Vehicle, Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the Promotion of the Use of Energy from Renewable Sources and Amending and Subsequently Repealing Directives 2001/77/EC and 2003/30/EC, [2009] OJ L140/1.

  63. 63

    For an overview and case studies, see E. Morgera , K. Kulovesi and A. Gobena (eds.), Case Studies on Bioenergy Policy and Law: Options for Sustainability (UN Food and Agriculture Organization, 2009).

  64. 64

    World Trade Organization, Activities of the WTO and the Challenge of Climate Change, found at: <http://www.wto.org/english/tratop_e/envir_e/climate_challenge_e.htm>.

  65. 65

    For discussion in the climate change context, see R.G. Tarasofsky, ‘Heating Up International Trade Law: Challenges and Opportunities Posed by Efforts to Combat Climate Change’, 2:1 Carbon and Climate Law Review (2008), 7, at 8–10. For an overview of legal arguments in the debate on production methods and processes, see G. Marceau and J.P. Trachtman, ‘The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement and the General Agreement on Tariffs and Trade: A Map of World Trade Organization Law of Domestic Regulation of Goods’, 36:5 Journal of World Trade (2002), 856.

  66. 66

    See, e.g., L. Tamiotti et al., Trade and Climate Change: A Report by the United Nations Environment Programme and the World Trade Organization (WTO Secretariat, 2009), 98ff; T. Epps and A. Green, Reconciling Trade and Climate: How the WTO Can Help Address Climate Change (Edward Elgar, 2010), 122ff; S. Droege, ‘Do Border Measures have a Role in Climate Policy?’, 11:5 Climate Policy (2011), 1185; L. Tamiotti, ‘The Legal Interface between Carbon Border Measures and Trade Rules’, 11:5 Climate Policy (2011), 1202; S. Monjon and P. Quirion, ‘A Border Adjustment for the EU ETS: Reconciling WTO Rules and Capacity to Tackle Carbon Leakage’, 11:5 Climate Policy (2011), 1212.

  67. 67

    Directive 2008/101 of the European Parliament and of the European Council Amending Directive 2003/87 so as to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading within the Community, [2009] OJ L8/3 (‘Directive 2008/101/EC’).

  68. 68

    Ibid. Articles 3c.1, 3c.2 and, Article 3s.

  69. 69

    Ibid.

  70. 70

    Ibid. Articles 3d.1 and 3d.2.

  71. 71

    European Commission, Questions and Answers on the Benchmark for Free Allocation to Airlines and on the Inclusion of Aviation in the EU's Emission Trading System (Memo/11/631, 26 September 2011).

  72. 72

    Directive 2008/101/EC, n. 67 above, Article 3g.

  73. 73

    Ibid., Articles 6.2 and 16.3.3.

  74. 74

    CJEU, Case C-366/10, The Air Transport Association of America, American Airlines, Inc, Continental Airlines, Inc, United Airlines, Inc v. The Secretary of State for Energy and Climate Change [2011] OJ C260/9 (‘Case C-366/10’), Reference for a Preliminary Ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 22 July 2010. For a detailed legal analysis of the arguments and the October 2011 advisory opinion by Advocate General Juliane Kokott, see K. Kulovesi, n. 5 above, at 544ff.

  75. 75

    Case C-366/10, n. 74 above, Judgment of 21 December 2011.

  76. 76

    For a recent discussion, see E. Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law and Legal Theory (Oxford University Press, 2009), at 96ff.

  77. 77

    Case C-366/10, n. 74 above, Judgment of 21 December 2011, at paragraph 129.

  78. 78

    Ibid., paragraph 128.3.

  79. 79

    See E. Vranes, n. 76 above, at 159–160, for a comprehensive overview of such scholarly positions.

  80. 80

    See J. Scott and L. Rajamani, n. 6 above, at 476.

  81. 81

    Ibid, at 475.

  82. 82

    These are also discussed in ibid., at 474–476.

  83. 83

    Ibid., at 479ff.

  84. 84

    UNFCCC, Proposals by India for Inclusion of Additional Agenda Items in the Provisional Agenda of the Seventeenth Session of the Conference of the Parties (UN Doc. FCCC/CP/2011/INF.2/Add.1, 7 October 2011), at 6.

  85. 85

    Ibid.

  86. 86

    I have discussed the climate finance aspect in more detail in K. Kulovesi, n. 5 above, at 554–555.

  87. 87

    International Centre for Trade and Sustainable Development, ‘Opponents of EU Aviation Carbon Law Agree on Possible Countermeasures’, 16:7 Bridges Weekly Trade News Digest (22 February 2012).

  88. 88

    HR 2594, European Union Emissions Trading Prohibition Act 2011.

  89. 89

    China “Bans” Airlines from Joining EU Carbon Scheme’, BBC News (6 February 2012), found at: <http://www.bbc.co.uk/news/business-16901106>; International Centre for Trade and Sustainable Development, ‘India Confirms Boycott of EU Aviation Emissions Rule’, Bridges Weekly (29 March 2012), found at: <http://ictsd.org/i/trade-and-sustainable-development-agenda/129985/>.

  90. 90

    European Commission Press Release, ‘Emissions Trading: Annual Compliance Round-up Shows Declining Emissions in 2011’, (IP/12/477 15 May 2012), found at: <http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/477>.

  91. 91

    Directive 2008/101/EC, n. 67 above, Article 16.3.

  92. 92

    Ibid., Articles 16.5–16.12.

  93. 93

    Such developments have been described, e.g., in T. Yang and R.V. Percival, ‘The Emergence of Global Environmental Law’, 36:3 Ecology Law Quarterly (2009), 615; and E. HeyGlobal Environmental Law’, 19 Finnish Yearbook of International Law (2008), 5.

  94. 94

    See T. Yang and R.V. Percival, n. 93 above, at 616.

  95. 95

    See K. Kulovesi, n. 19 above.

  96. 96

    Ibid.

  97. 97

    Again, my thinking in this regard has been inspired by Morgera, n. 20 above.

  98. 98

    We have made a detailed argument to this effect in K. Kulovesi, E. Morgera and M. Muñoz, ‘Environmental Integration and Multi-faceted International Dimensions of EU Law: Unpacking the EU's 2009 Climate and Energy Package’, 48:3 Common Market Law Review (2011), 829.

  99. 99

    The quote is also from E. Morgera, n. 20 above.

  100. 100

    I have discussed this in more detail in K. Kulovesi, n. 19 above.

  101. 101

    Like many others, I have also used the notion ‘unilateral’ in the context of the scheme in K. Kulovesi, n. 5 above.

  102. 102

    J. Scott and L. Rajamani, n. 6 above, at 469 and 474. They refer to M. Reisman, ‘Unilateral Actions and the Transformation of the World Constitutive Process: The Special Problem of Humanitarian Intervention’, 11:3 European Journal of International Law (2000), 3.

  103. 103

    Including V.K. Aggarwal and R. Espa, n. 9 above.

  104. 104

    See, e.g., M. Naím, n. 10 above.

  105. 105

    See G. Shaffer and D. Bodansky, n. 18 above, at 38.

  106. 106

    Ibid., at 40.

  107. 107

    UNFCCC, n. 1 above, Article 2; Decision 1/CP.16, The Cancun Agreements: Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention (UN Doc. FCCC/CP/2010/7/Add.1, 15 March 2011).

  108. 108

    See J. Scott and L. Rajamani, n. 6 above, for detailed criticism of the EU aviation scheme from the perspective of the principle of the CBDRRC.

  109. 109

    See UNEP, n. 33 above.

  110. 110

    Similarly, see E. Morgera, n. 20 above.

Biography

  • Kati Kulovesi is senior researcher and adjunct professor (docent) in Climate Law at the Department of Law, University of Eastern Finland. She holds a PhD from the Department of Law, London School of Economics and Political Science (LSE) and LL.M degrees from the University of Helsinki and LSE. The author would like to thank Harro van Asselt, Remi Moncel, Elisa Morgera and anonymous reviewers for their useful comments on the manuscript.

Ancillary