Comity of nations? US ban on US airlines complying with EU emissions law

10 January 2013 by

hr-2594One of the stranger and bolder pieces of US legislation slipped into force in November 2012 – The European Union Emissions Trading Scheme Prohibition Act of 2011 – sic. This  enables the US Secretary of Transportation to prohibit US airlines from complying with EU rules. Those EU rules apply to all airliners which touch down or take off in the EU, and requires them to participate in the EU Emissions Trading Scheme – designed progressively to limit carbon emissions from aviation via a cap and trade mechanism.

The US  Act would be odd enough in its lack of respect for the laws of other countries, had the Act’s beneficiaries (the US airlines) not sought to challenge the legality of the EU measure in the EU Courts – and failed: see my post on the judgment of the CJEU. As will be seen, the EU Court expressly rejected claims (by US airlines) that the rules had extra-territorial effect and conflicted with international aviation conventions. Hence, the scheme was lawfully applicable to US airlines – just as to those of all other countries using EU airports.

The US Act runs to a page and half. The ban applies where the Secretary of Transportation determines that it is in the public interest to apply

taking into account

(1) the impacts on US consumers, US carriers and US operators

(2) the impact on the economic, energy, and environmental security of the United States and

(3) the impacts on US foreign relations including existing international commitments.

Note that there is no reference to taking account of interests other than US interests, nor indeed to environmental benefits of the scheme.

The clash between the EU rules and this ban is postponed for the moment, because the EU Commission wishes to exempt international flights from the trading scheme for 12 months, in an attempt to see whether a deal can be brokered at a meeting of the International Civil Aviation Organisation (ICAO) in autumn 2013. So the prospect of US airliners being impounded when they land here, and the EU enforceability of this Act being tested at the sharp end, is not an imminent one.

The White House’s justification for this pre-emptive strike is that emissions should be regulated through ICAO processes – an understandable political aspiration, and one which is recorded in the Act. But it is very unattractive for one nation to ban its nationals from obeying the laws of another country applicable in that other country – and to ignore the ruling of a court that the latter was validly made law. Heaven forfend if any other nation sought to prohibit its nationals from complying with US law in the US.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:


  1. Much as I sympathise with this call for comity, I do wonder what else the Americans are supposed to do. I happen to think they are probably right; EU law should not tax emissions that occur when an airplane is still taxiing on the ground in the US. (The meter starts running as soon as the airplane leaves the terminal.) So what is the remedy? An ICJ suit? A WTO Dispute Settlement?

  2. Felix Labinjo says:

    “… is very unattractive for one nation to ban its nationals from obeying the laws of another country applicable in that other country – and to ignore the ruling of a court that the latter was validly made law. Heaven forfend if any other nation sought to prohibit its nationals from complying with US law in the US…” Well put, Mr Hart.

    The Land of the Free should respect this EU law that is designed to reduce carbon emission. As the EU Court (CJEU) noted in its judgment, the European Union itself is not a party to the 1944 Chicago Convention yet its member states have ratified it. There is also the matter of the Kyoto Protocol as linked to the United Nations Framework Convention on Climate Change.

    Hopefully, good sense will prevail at the ICAO meeting due to be held later this year, and a way would be found to avoid a clash of laws and the consequent ill wind that will blow nobody any good.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: