Adding to their claims that folding aviation into the European Union's emissions trading scheme (ETS) violates the Chicago Convention, US carriers are also arguing the EU's plans violate tenets of international law.
In an oral submission to the European Court of Justice, US carriers United-Continental, American and airlines represented by the Air Transport Association of America (ATA), stated: "The Court need only decide that regulating the emissions of Japanese airlines over Russia, or regulating the emissions of US airlines over the United States or Canada, is contrary to customary international law".
Using real world examples to illustrate the overall argument by US airlines that the ETS regulates the conduct of third country airlines in third country airspace, the oral argument used the emissions burned during a US carrier's flight from San Francisco to London Heathrow.
"From the moment that the aircraft begins to taxi from the gate at San Francisco, the EU emissions rules apply," the argument stated. As a percentage of total emissions 29% take place in US airspace, while 37% occur in Canadian airspace and 25% take place on the high seas.
"Only 9% of emissions take place in EU airspace. Yet the ETS will impose a levy on this carrier, and may also impose an excess emissions penalty, based on emissions for the entire flight from start to finish."
The argument estimated an excess emissions penalty for the flight would amount to 21,300 Euros. "But, less than 2,000 Euros of that excess emissions penalty would result from emissions in EU airspace. More than 14,000 Euros of that excess emissions penalty would result from emissions over the USA and Canada, and more than 5,000 Euros would result from emissions over the high seas," said the argument.
Carriers in their oral statements said this example illustrates "EU regulation of US airlines in third country airspace and over the high seas".
Furthermore, if the ETS regime were agreed to by third countries as well as the EU, "we would not be here today", the carriers argued in their statement. "ATA challenges the ETS because it is a unilateral measure, which has not been agreed to by countries outside the EU, yet nevertheless applies EU law to third country carriers in third country airspace".