The European Commission has proposed to extend the European Union (EU) emissions trading system to 50% of the carbon dioxide emissions from intercontinental maritime voyages that start or end at European ports. Yet, it remains unclear why this 'fifty-fifty' scope was selected and whether it is compatible with international law. This article disentangles the proposal's rationale and maps the EU's jurisdictional possibilities and limitations from the perspective of the law of the sea and international climate law. The findings suggest that, although there are sufficient jurisdictional grounds for implementing the extended emissions trading system as a port entry condition, the applicable legal limitations require certain amendments to the EU proposal. Concrete legal suggestions are formulated to increase alignment with the enforcement restrictions of the United Nations Convention on the Law of the Sea and with the principle of common but differentiated responsibilities and respective capabilities in international climate law, while complying with the obligations of nondiscrimination, good faith, and nonabuse of rights.
| INTRODUCTIONDespite its significant and growing contribution to climate change, international maritime transport remains without an effective regulatory framework for reducing greenhouse gas (GHG) emissions. 1 In July 2021, the European Union (EU) initiated a legislative process to include a share of international shipping in its emissions trading system (ETS). 2 Under the proposal, the EU ETS would impose an emissions cap and charge a market-based carbon price related to 50 percent of the GHG emissions from any intercontinental voyage that starts or ends at a European port. 3 All large commercial vessels that call at European ports will be required to pay for their emissions, regardless of their flag. 4 Certain stakeholders in the international maritime sector reacted negatively to this EU proposal. 5 They argued, among others, that it 1 Shipping emissions represent approximately 3 percent of global anthropogenic GHG emissions and are projected to increase significantly by 2050. International Maritime Organization (IMO), 'Fourth IMO GHG Study 2020' (IMO 2021) 1, 3. 2 Commission (EU) 'Proposal for a Directive of the European Parliament and of the Council Amending Directive 2003/87/EC Establishing a System for Greenhouse Gas Emission Allowance Trading within the Union, Decision (EU) 2015/1814 and Regulation (EU) 2015/757' (Communication) COM(2021) 551 final, 14 July 2021.3 ibid art 1(5). In the present article, the term 'European' narrowly refers to the European Economic Area (EEA), which consists of the 27 EU Member States, Norway, Iceland, and Liechtenstein. The term 'intercontinental' refers to voyages between European and non-European ports. 4 ibid Annex(c)(vii). 5 See, for example, R Suda, 'Japan Opposes EU's Plan to Include Shipping in ETS' (Argus Media, 7 June 2021) ; M Hand, 'EU Emissions Tradin...