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Legal opinion: Compatibility with international legal provisions of including greenhouse gas emissions from international aviation in the EU emissions trading scheme

Prof. Pache, who holds a chair on Constitutional Law, International Law, International Business Law and Economic Administrative Law at Würzburg University has analysed the question whether the inclusion of emissions from international aviation into the European emissions trading scheme is compatible with international legal provisions. This legal opinion was commissioned by the Federal Environment Ministry. The question of compatibility with international law arises especially with regard to flights between the EU and third countries performed by third country airlines.

The opinion comes to the conclusion that including international aviation in the European emissions trading scheme does not conflict with any international legal provisions. The analysis addresses the Kyoto-Protocol, the Framework Convention on Climate Change, the Chicago Convention, bilateral agreements, ICAO secondary legislation, international trade law and principles of general international law. Furthermore, Prof. Pache deals with ICAO´s arbitration procedure and shows that it does not have a delaying effect on the measure it concerns. Eventually, he explains the possible responses of the EU in case an aircraft operator from a third country does not fulfil his obligations under the emissions trading scheme.