01 Dec U.S. May Sue the E.U. Over Greenhouse Gas Limits on Airlines
Here is an interesting little brewing dispute that lies below the radar screen. The Financial Times reports that the United States may bring the European Union to the International Court of Justice in order to challenge forthcoming EU greenhouse gas rules. The relevant rules will require airlines operating in the EU to participate in their greenhouse gas/ emissions trading scheme.
Apparently, the U.S. would bring a challenge under the Chicago Convention on International Civil Aviation. This convention prohibits countries from imposing “transit charges” on airlines. Rather, “costs can be levied only for specific services, such as air traffic control or airport services.”
I am far from knowledgeable about “international airline law” but it doesn’t sound like a very strong case on the U.S. side. Nor do I think the ICJ is likely to be the best forum to resolve this dispute (just count the votes of the number of EU members on the ICJ if nothing else). Still, it would be one hell of a case.
So ‘the United States may bring the European Union to the International Court of Justice’? Good luck with that.
Article 34(1) of the Court’s Statute provides in the clearest possible terms that ‘[o]nly States may be parties in cases before the Court’. So the EU is simply incapable of being sued in the ICJ.
And this is before we come to the much thornier issue of the EU’s international legal personality (presumably very esily resolved in this case, as it is the EC we should be talking about, not the EU. After all, the EU cannot be a party to the Chicago Convention, whereas the EC generally can. Is it?).
It may be that the member States of the EU can take its place in proceedings before the ICJ, but this is far from certain (and an interesting question).
Besides, there is no majority of judges from the EU on the Court. Even making the rather ludicrous assumption that the judges would always vote for their home State (and even an international organisation to which that State belongs) – an assumption that has been disproved more than once – there would be little basis for fearing the ICJ an that account.
Fair point about the E.U. not being a member state to the ICJ. No doubt that E.U. can’t be a party, but obviously the member states that compose the EU can, and this is unlikely to make a huge difference.
As for bias, actually, there is a fair amount of evidence that the ICJ judges are biased toward their home countries. Not indisputable, but not insubstantial either See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=642581
Best, Julian
Thank you for pointing me to that article. Posner and de Figueiredo seems to be saying there that if a ‘national judge’ is more likely to agree with his or her home State than a judge from an uninvolved State, this is a sign of bias. This, I would assume, could only describe bias as a matter of fact, not as any objectionable attitude on the part of the judges. But however that may be, I am not fully convinced. The vagaries of legal reasoning and the uncertainty of much of international law mean that there can be any number of reasons for disagreement within the Court, or more simply, for taking one view rather than another. There is, therefore, so much room for utterly accidental voting patterns that statistics can only be of very little service in examining the impartiality of judges in the ICJ. The number of reasons for disagreement within the Court may be somewhat pared down by considering only whether national judges tend to dissent in from the majority of the Court, in order to thus vote for their home State. This may – just possibly – help to identify cases in which the reasoning employed… Read more »