Intercontinental shipping in the European Union emissions trading system: A ‘fifty–fifty’ alignment with the law of the sea and international climate law?

• Published date: 01 April 2023
• Author: Manolis Kotzampasakis
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12485

ORIGINAL ARTICLE

Intercontinental shipping in the European Union emissions

trading system: A ‘fifty–fifty’alignment with the law of the sea

and international climate law?

Manolis Kotzampasakis

Faculty of Law, University of Groningen,

Groningen, The Netherlands

Correspondence

Manolis Kotzampasakis, Faculty of Law,

University of Groningen, Groningen, The

Netherlands.

Email: m.kotzampasakis@rug.nl

Abstract

The European Commission has proposed to extend the European Union

(EU) emissions trading system to 50% of the carbon dioxide emissions from intercon-

tinental 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 interna-

tional law. This article disentangles the proposal's rationale and maps the EU's juris-

dictional 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 obliga-

tions of nondiscrimination, good faith, and nonabuse of rights.

1|INTRODUCTION

Despite its significant and growing contribution to climate change,

international maritime transport remains without an effective regula-

tory 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 sys-

tem (ETS).

2

Under the proposal, the EU ETS would impose an emis-

sions 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) <https://www.argusmedia.com/en/news/2222131-japan-opposes-eus-

plan-to-include-shipping-in-ets>; M Hand, ‘EU Emissions Trading for Shipping Highlights

Europe and Global Shipowner Divide’(Seatrade Maritime, 15 July 2021) <https://www.

seatrade-maritime.com/environmental/eu-emissions-trading-shipping-highlights-europe-and-

global-shipowner-divide>.

Received: 2 June 2022 Accepted: 2 December 2022

DOI: 10.1111/reel.12485

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and reproduction in any medium,

provided the original work is properly cited.

© 2022 The Author. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

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