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 by a national judge has been unacceptable, and his or her decision greatly informed by bias. The dissenters may still be correct in dissenting, but the fact that a majority of judges, composed of judges from at least 8, probably quite different, States (in the Court’s usual composition), may indicate that the majority is simply right. But even if the majority is right, good reasons may lead some judges to dissent, even without any effect of bias. The only nearly good case for bias on the part of a judge would therefore exist if a national judge was the only judge to dissent, and does so in favour of his or her own State. This has never happened: see Mariano J. Aznar Gómez, in Andreas Zimmermann / Christian Tomuschat / Karin Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: Oxford University Press, 2006), Art. 2 MN 9 (pp. 210-1).
Prof. Aznar Gómez also makes another interesting point in this respect, namely that even judges ad hoc have occasionally cast their vote against the State that had nominated them. This is a very rare occurrence, but I still tend to regard this as testament to a culture of impartiality within the Court’s deliberations. After all, judges ad hoc owe their position very directly to the party that has nominated them under Article 31 of the Statute, whereas the Court’s usual judges (its members; see Article 1 of the Rules of Court) do not. The latter are, of course, nominated by their national groups in the Permanent Court of Arbitration, and elected by the General Assembly and the Security Council. Their States will usually do a fair bit of campaigning on their behalf, but their direct involvement is somewhat limited. In fact, judges (like the Judges Baxter and Jessup) have been nominated (and then elected) over the wishes of their home governments: see Patricia Georget / Vladimir Golitsyn / Ralph Zacklin, in Zimmermann / Tomuschat / Oellers-Frahm, op. cit., Art. 4 MN 37 (p. 238), citing Judge Schwebel.
I am, incidentally, not convinced that Posner and de Figueiredo have fairly taken into account this somewhat indirect link between governments and elections to the ICJ, which surely might serve to lessen somewhat a judge’s gratefulness to the government or State that has put him in place.
But enough of that.
As for my point about the EU/EC (let’s not go into that distinction, shall we?) and the ICJ, this was not actually about the organization not being a party to the ICJ Statute. This is the territory of Article 35 of the Statute, read with Article 92 of the Charter, and Article 35(2) of the Statute provides an easy way out of the problem. But this does not necessarily arise, because the real hurdle, and a formidable one at that, is Article 34(1) of the Statute. This harks back to the state of international law in 1920 by providing that only States may be parties to contentious cases before the Court. Of course, this is now highly inappropriate, but it is the law, and no amount of dynamic interpretation can displace this very clear provision. Nor do I find it very easy to argue that the EU member States can take the place of the EU/EC in the Court, pretending that the relevant rights are theirs, through the vehicle of the EU/EC, as it were. After all, this is simply not the case, the EU/EC having a separate international personality from its members. But maybe, just maybe, it could be argued that because Article 34(1) of the Statute does not recognize the international legal personality of international organizations at all, it cannot recognize the distinction between the rights of the organization and the rights of its members, either. There is a certain logic to this. The argument does do some violence to actual international law as it stands today, but then again, so does Article 34.
This argument would suggest that the problem of the EU/EC and Article 34 is indeed ‘unlikely to make a huge difference’ in the result, but it would take a great deal of argument – and of judicial courage – to come to this conclusion. A very interesting point, in my opinion.