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The attitude in Europe toward the international aviation legal order has not been friendly as of late. In September, the European Union publicly disavowed a resolution passed by the International Civil Aviation Organization (ICAO) that stressed the importance of states avoiding unilateral action on aviation emissions and the environment. Its reasoning for doing so was simple: The Kyoto Protocol to the United Nation’s Framework Convention on Climate Change clearly recognizes ICAO as the international leader in finding an equitable solution to environmental damage that may be caused by civil aviation. ICAO, which has been the mainstay organization of the global aviation regime for more than six decades, now sits in a precarious position. Its legitimacy rests on the good faith of its members to adhere to its rulings and work within it to ensure the maintenance of a global legal system that is orderly, reputable and efficacious. Pity it would be if ICAO should find itself compelled to mutter, “Apr�s nous, le d�luge.” Yet, sadly, it may be right to do so. On the heels of ICAO’s snubbing by the European Union, the European Parliament took a first reading vote on the European Commission’s plan to bring aviation into its emissions trading scheme (ETS). Under the ETS, not only would flights departing from and landing within the European Union be affected, but also flights originating well outside E.U. borders without rational regard for how limited its flight time over its airspace may be. This unilateralism not only further confirms the European Union’s distancing from ICAO, but breaks with the foundational notions of sovereignty enshrined in the Chicago Convention on International Civil Aviation, in force since 1947. On what basis does the European Union take such radical action? It would seem that its behavior � environmentally friendly though it may be � sets an unsettling precedent for how truly international matters related to civil aviation will be handled in the future. Evidence is now starting to emerge that the European Union’s extraterritorial impulses are starting to spread. A Dutch law imposing a $67 per ticket tax on all flights departing the Netherlands for outside the European Union ($17 for within) is set to go into effect on July 1. Being touted in public as an “eco-tax,” the measure is disturbing for its flagrant disregard of Article 15 of the Chicago Convention. In the estimation of Frans Vreede, partner and aviation expert at the Dutch law firm Boekel De Ner�e, Article 15′s aim is to bar compensation when no costs have been incurred. In this instance, there is no meaningful relationship between the tax and the normal costs associated with the operating of Dutch airports. Rather, it cuts directly against the article by clasping a charge on airlines for nothing more than the right to depart from Dutch territory. There exists grave concern that the tax will cripple the Dutch aviation sector as low-cost carriers have vowed not to expand their activities in the Netherlands, and passengers are expected to seek alternative airports in nearby Belgium and Germany in order to keep their ticket prices down. In addition to these difficulties, both the European Union and the Netherlands appear to violate Article 15 of the recent U.S./E.U. Air Transport Agreement, which limits the extent to which either party (or, in the case of the European Union, each member state) may impose environmental measures on the others. So far, however, the European Union has not stated publicly that U.S. air carriers would be exempt from these measures or that reasonable efforts would be made to mitigate the potentially adverse effect such measures may have on the liberalization rights guaranteed under the agreement. With “second stage” talks between the United States and European Union concerning further liberalization on the horizon, it is deeply troubling to see the fruits of the first being so callously disregarded. History has furnished more than enough platitudes about respecting the rule of law and maintaining civility among nations, even in the face of problems as serious as global climate change. What is important to keep in mind is that for 60 years there has been a system for civil aviation which, while far from perfect, has sought to coherently order the use and expansion of one of the most revolutionary products of human ingenuity. The almost pathological assault upon it is as senseless as it is needless. Hopefully, the legal challenges to these measures currently under way and those being contemplated will prove successful. Still, assured or not, their success will mark only one battle in what will likely prove to be a long struggle to maintain a robust legal regime for international civil aviation � one with both the will and the legitimacy to confront the issues before it in a truly cosmopolitan way. Gabriel S. Sanchez is the FedEx/United Airlines Resident Research Fellow and an adjunct professor of law at the International Aviation Law Institute at DePaul University College of Law.

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