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Published online by Cambridge University Press: 07 July 2009
In nearly every area of environmental protection the question of economic instruments, which may range from trade restrictions to levies for environmental purposes, has been raised. This also holds true for the area of climate change. In the negotiations leading to the adoption of the Kyoto Protocol, the use of economic instruments was at the very centre of the debates. Although a number of economic mechanisms have been included in the Kyoto Protocol itself, the discussion concerning the use of economic instruments for purposes of combating climate change continues.
4. Cf., e.g., as regards discussions within the CSD, UN-Doc. E/CN.17/1995/8, Report of the Secretary General, Financial Resources and mechanisms for sustainable development: overview of current issues and developments, available at URL: gopher://gopher.un.org:70/00/esc/cn17/1995/off/95-8.en; cf., further the work within the OECD or the ongoing discussions in UNEP, and the World Trade Organisation see the annual reports in the Yearbook of International Environmental Law. On the discussions within the framework of the Montreal Protocol see Benedick, R. E., Ozone Diplomacy – New Directions in Safeguarding the Planet, 1st edn. (Cambridge, MA, Harvard University Press 1991).Google Scholar
5. Cf., e.g., Bodansky, D., ‘Managing Climate Change’, 3 YbIEL (1993) pp. 60–74.Google Scholar
6. The economic mechanisms provided for in the Kyoto Protocol are: Joint Implementation (Art. 6), the Clean Development Mechanism (Art. 12) and Emissions Trading (Art. 17). See Loibl, G., ‘Trade and Environment–A Difficult Relationship, New Approaches and Trends: the Kyoto Protocol and Beyond’, in Hafner, G. et al. , eds., Liber Amicorum Professor Ignaz Seidl-Hohenveldern in honour of his 80th birthday (The Hague, Kluwer Law International 1998) pp. 419–443.Google Scholar
7. Report from the Commission to the Council and the European Parliament under Art. 8(6) of Council Directive 92/81/EEC, on the situation with regard to the exemptions or reductions for specific policy considerations as set out in Art. 8(4) of Directive 92/81 and concerning the obligatory exemption of mineral oils used as fuel for the purpose of air navigation other than private pleasure flying and the exemptions or reductions possible for navigation on inland waterways other than for private pleasure craft as set out in Arts. 8(1)(b) and 8(2)(b) of the same Directive, COM(96)549.
8. Proposal for a Council Directive restructuring the Community framework for the taxation of energy products, COM(97)30, OJ (1997) C 139, 14.
9. Braathens Sverige AB v. Riksskatteverket, C-346/97, Judgment of 10 June 1999.
10. Council Directive 92/81/EEC of 19 October 1992 on the harmonization of the structures of excise duties on mineral oils, OJ (1992) L 316, 12.
11. Swedish Law 1988/1567 on Environmental Tax on Domestic Air Navigation; with effect from 1 January 1997 the law was repealed.
12. Braathens Sverige AB v. Riksskatteverket, paras. 3. See also the Opinion of Advocate General Fennelly delivered on 12 November 1998, particularly paras. 14; in his Conclusion Advocate General Fenelly has recommended that the Court answers the respective question as follows: ‘A national tax affecting domestic aviation and imposing a standard charge in two parts which is calculated by reference, first, to data on fuel consumption and, secondly, to data on emissions of hydrocarbons and nitric oxides, both on an average flight of the type of aircraft used, constitutes an excise duty on the use of aviation fuel, which, in so far as it is applied to aviation other than private pleasure flying, i.e., commercial aviation, is contrary to Art. 8(1)(b) of Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils, unless it is shown that those calculations genuinely and significantly advance an environmental object of encouraging the use of less polluting aircraft’ (para. 29).
13. On the feasibility of such levies in the European region cf., inter alia, Bleijenberg, A.N., and Wit, R.C.N., A European Environmental Aviation Charge–Feasibility Study (Delft, Centre for Energy Conservation and Environmental Technology 1998)Google Scholar available at URL: http://antenna.nl/ce. The potential impact of aviation emissions was scrutinised in a Special Report of the Intergovernmental Panel on Climate Change entitled ‘Aviation and the Global Atmosphere’ published in June 1999, cf., Summary for Policymakers – Aviation and the Global Atmosphere, A Special Report of Working Group I and II of the Intergovernmental Panel on Climate Change, available at URL: http://www.unep.ch/ozone. Cf., further Schneider, F., Wagner, A.F. and Stiglbauer, A.M., ‘Evaluierung der ökonomischen und ökologischen Effekte einer EU-weiten Flugverkehrsbesteuerung in Österreich’, 16 Schriftenreihe des BMUJF (1999) 190 pp.Google Scholar
14. Cf., on the ICAO in general Schermers, H. G. and Blokker, N.M., International Institutional Law – Unity within diversity, 3rd edn. (The Hague, Martinus Nijhoff Publishers 1995)Google Scholar; Seidl-Hohenveldern, I. and Loibl, G., Das Recht der Internationalen Organisationen einschlieβlich der Supranationalen Gemeinschaften, 6th rev. edn. (Köln, Heymanns 1996).Google Scholar
15. ICAO-Doc. 7300/6, 6th edn. (1980); for the original agreement see 15 UNTS 295 et seq; hereinafter Chicago Convention.
16. Cf., Art. 44 of the Chicago Convention.
17. Cf., http://www.icao.int/icao/en/members.htm.
18. Cf., e.g., the 1951 ICAO-Council Recommendation, ICAO-Doc. 7145; see also ICAO's Policies on Taxation in the Field of International Air Transport, ICAO-Doc. 8632-C/968, 2nd edn. (1994) 1.
19. Cf., ibid.; according to Art. 44(a) Chicago Convention one of the ICAO's aims is to ‘Insure the safe and orderly growth of international civil aviation throughout the world’; demanding from ICAO to work for the reduction of international civil aviation, thus, almost amounts to asking for the abrogation of one of its express aims (cf., Winter, G., ‘On Integration of Environmental Protection into Air Transport Law: A German and EC Perspective’, 21 Air and Space Law (1996) pp. 132–141).Google Scholar
20. ICAO Council Resolution on Environmental Charges and Taxes, dated 8 December 1996, available at URL: http://www.icao.int/icao/en/env/taxes.htm, operative para. 4.
21. Art. 15 Chicago Convention reads as follows: ‘Airport and similar charges
Every airport in a contracting State which is open to public use by its national aircraft shall likewise, subject to the provisions of Article 68, be open under uniform conditions to the aircraft of all the other contracting States. The like uniform conditions shall apply to the use, by aircraft of every contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation.
Any charges that may be imposed or permitted to be imposed by a contracting State for the use of such airports and air navigation facilities by the aircraft of any other contracting State shall not be higher, (a) As to aircraft not engaged in scheduled international air services, than those that would be paid by its national aircraft of the same class engaged in similar operations, and (b) As to aircraft engaged in scheduled international air services, than those that would be paid by its national aircraft engaged in similar international air services.
All such charges shall be published and communicated to the International Civil Aviation Organization: provided that, upon representation by an interested contracting State, the charges imposed for the use of airports and other facilities shall be subject to review by the Council, which shall report and make recommendations thereon for the consideration of the State or States concerned. No fees, dues or other charges shall be imposed by any contracting State in respect solely of the right of transit over or entry into or exit from its territory of any aircraft of a contracting State or persons or property thereon.’
22. In order to avoid terminological confusion, in this article we use the terms ‘levy’, ‘charge’ and ‘tax’ in the following way: ‘levy’ shall be the general term covering both taxes and charges; ‘charges’ signify levies to defray the costs of certain facilities and/or services and ‘tax’ shall denote levies imposed to produce general governmental income without relation to costs of specific services or facilities.
23. Before entering into a more detailed analysis of these questions a methodological remark has to be made. In general, when interpreting international treaties the interpretation rules contained in the Vienna Convention on the Law of Treaties (8 ILM (1969) p. 679Google Scholar) are applied. However, according to Art. 4 the Vienna Convention cannot per se be applied to the 1944 Chicago Convention. Nevertheless, these rules will be applied here, as they seem to reflect the generally accepted rules of interpretation.
24. Black, H.C. et al. , Black's Law Dictionary – Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 6th edn. (St. Paul, MN., West 1990) p. 614.Google Scholar
25. Ibid., at p. 499.
26. Cf., ibid., at p. 233, where charges are described on the one hand as ‘fee’ and on the other hand as ‘costs’; cf., also Law and Commercial Dictionary in Five Languages – Definitions of the Legal Terms and Phrases of American, English and Civil Law Jurisdiction (St. Paul, MN, West 1993) p. 237.Google Scholar
27. Loibl, G. and Reiterer, M., ‘Internationale Rahmenbedingungen für eine Abgabe auf Flugtreibstoff’ 33 Schriftenreihe des BMUJF (1998) pp. 37, 45.Google Scholar The same reasoning applies to the equally authentic French text of Article 15 which excludes ‘droits, taxes ou autres redevances’; again the word ‘redevances’ is used as a term covering both ‘droits’ and ‘taxes’. In slight distinction to the English version, the French text moves from the more general term ‘droits’ which encompasses charges and taxes (cf., Guillien, R. and Vincent, J., Lexique de termes juridiques, 8th edn. (Paris, Dalloz 1990) p. 194Google Scholar) to the more specific terms ‘taxe’ and ‘redevances’ which are used to denote levies ‘destiné à financer un service public déterminé et dû par les seuls usagers du service’, i.e., as a charge (ibid., at p. 473; Cornu, G., ed., Vocabulaire juridique, (Paris, Presses Universitaires 1996) p. 802Google Scholar, which notes that the ‘taxe sur la valeur ajoutée’, the value added tax, is not a ‘taxe’, but an ‘impôt’ – a tax). As the term ‘redevance’ determines the scope of the two preceding terms, the word ‘droits’ can only be understood as denoting charges – not taxes.
28. E.g., Art. 15(2)(s): ‘charges … imposed … for the use of such airports and air navigation facilities’.
29. Cf., Pogue, L.W. and Davison, C., ‘User Charges in International Aviation’, 73 AJIL (1979) at p. 47.CrossRefGoogle Scholar
30. ICAO-Doc 7745, APC/1–1 (1956), p. 6; reprinted in Cheng, B., The Law of International Air Transport (London, Stevens 1962) p. 163.Google Scholar
31. Statements by the Council to Contracting States on Charges for Airports and Air Navigation Services, 5th edn. (1997) ICAO-Doc. 9082/5 pp. 3 and 10; cf., Heilbronn, G.N. and Bonsall, C.J., ‘Aeronautical Charges: The Need for a more Specific Legislative Context’, XX Air and Space Law (1995) pp. 125–136.Google Scholar
32. Council Resolution of 14 December 1993 on Taxation of Fuel, Lubricants and other Consumable Technical Supplies when an Aircraft Registered in one State or Leased or Chartered by an Operator of that State Arrives in or Departs from a Customs Territory of another State, reprinted in ICAO's Policies on Taxation, loc. cit. n. 18.
33. Statements by the Council, loc. cit. n. 31, at p. 18.
34. ICAO's Policies on Taxation, loc. cit. n. 18, pp. 5 et seq. Notwithstanding this clear-cut statement de Leon, P.M.J. Mendes (‘Protecting the Environment by Use of Fiscal Measures: Legality and Propriety’, 62 Journal of Air and Space Law (1997) pp. 791, 797Google Scholar) argues that the distinction between charges and taxes is not relevant for the application of Art. 15 Chicago Convention; there remain, however, significant grounds for questioning this proposition; cf., Loibl and Reiterer, op. cit. n. 27, pp. 42 et seq.
35. Loc. cit. n. 20 (emph. added).
36. This conclusion seems to be shared by the ICAO: the Introduction to the ICAO's Policies on Taxation (loc. cit. n. 18) when dealing with taxes only refers to Art. 24, yet not to Art. 15. Cf., also Abeyratne, R.I.R., ‘Recent Developments in Taxation of Air Transport – The ICAO-IATA Symbiosis’, XX Air and Space Law (1995) p. 48Google Scholar; in this article, inter alia, dealing with kerosene taxation, Art. 15 Chicago Convention is not even mentioned; Abeyratne simply states that the Chicago Convention ‘did not attempt to deal comprehensively with tax matters’ (p. 48) and further only refers to Art. 24 of the Convention. Finally, the majority of judges in the US Supreme Court case Wardair Canada Inc. v. Florida Department of Revenue (477 US 1 (1986)) found that in regard to the Chicago Convention that merely ‘there appears to be an international aspiration … to eliminate all impediments to foreign air travel – including taxation of fuel’ (emph. in original); apart from that statement the judges concluded from Art. 24 that fuel on board an aircraft on arrival in the territory and retained on board on leaving the territory may not be taxed; on this decision see Caldwell, B.K., ‘Recent Decision’, 20 Vanderbilt Journal of Transnational Law (1987) pp. 365, 372Google Scholar; see also 11 ZLWR (1986) p. 274.Google Scholar
37. Cf., ICAO 32nd Assembly – Report of the Executive Committee, available at URL: http://www.icao.int/icao/en/env/a32report.htm, para. 21:10.
38. Cf., Michaelis, L. (OECD), ‘Policies and Measures for Common Action’Google Scholar, Working Paper 12 (March 1997)–Special Issues in Carbon/Energy Taxation: Carbon Charges on Aviation Fuels, p. 53.
39. Mendes de Leon, op. cit. n. 34, at p. 797; Bleijenberg and Wit, op. cit. n. 13, Annex D, Ch. D.3; cf., also Winter, op. cit. n. 19, at pp. 132, 142.
40. See infra Ch. 2.4.2.
41. Note, however, the legal problems arising in connection with BASAs, see infra Ch. 3.
42. See Black's Law Dictionary, op. cit. n. 24, at p. 505; ICAO Council Resolution on Taxation of Fuel, loc. cit. n. 32, operative para. 4; Wardair case, loc. cit. n. 36; Abeyratne, op. cit. n. 36.
43. See, inter alia, Wardair case, loc. cit. n. 35; Bleijenberg and Wit, op. cit. n. 12, Annex D, chapter D.3 and D.4; Mendes, de Leon, ‘Aviation and the Environment: Changing Perceptions’, XXII Air and Space Law (1997) pp. 131, 136Google Scholar; Abeyratne, op. cit. n. 36, at pp. 48, 48.
44. Art. 2 Chicago Convention.
45. Cf., Loibl and Reiterer, op. cit. n. 26, at pp. 53 et seq., 57.
46. Art. 90(a) Chicago Convention.
47. See, inter alia, ICAO, Memorandum on ICAO (1994) p. 12 (available at URL: http://www.icao.int); van Dam, R.D., ‘Regulating International Civil Aviation: An ICAO Perspective’, in Masson-Zwaan, T.L. and de Leon, P.M.J. Mendes, eds., Air and Space Law: De Lege Ferenda, Essays in Honour of Henri A. Wassenbergh (Dordrecht, Martinus Nijhoff 1992) pp. 11, 13 et seq.Google Scholar; Ducrest, J., ‘Legislative and Quasi-Legislative Functions of ICAO: Towards Improved Efficiency’, 20 Annals of Air and Space Law (1995) pp. 343, 354 et seq.Google Scholar; Abeyratne, R.I.R., ‘Law Making and Decision Making Powers of the ICAO Council – a Critical Analysis’, 41 ZLR (1992) pp. 387, 388 et seq.Google Scholar; Schermers and Blokker, op. cit. n. 14, at p. 781.
48. Art. 37(1) Chicago Convention.
49. Th. Buergenthal, , Law Making in the International Civil Aviation Organzation (Syracuse, Syracuse Univ. Press 1969) p. 77Google Scholar; cf., also Cheng, op. cit. n. 30, at p. 64; Pogue and Davison, op. cit. n. 29, at pp. 42, 49; Hailbronner, K., ‘International Civil Aviation Organisation’, 2 EPIL (1995) pp. 1070, 1072.Google Scholar
50. Cf., Buergenthal, op. cit. n. 49, at p. 77; ICAO itself seems to adhere to this opinion: in the ‘Foreword’ preceding each Annex, the Parties' attention is drawn to the obligation to notify under Art. 38, and States are invited ‘to keep the Organization informed of any differences which may subsequently occur’; this formulation also encompasses unilateral deviations at a later stage.
51. Under the Chicago Convention there seems to be only one exception to this rule; according to Art. 12 the ‘rules of the air’ to be followed over the high seas shall be those established under the Convention, i.e., those which ICAO has the power to adopt under Art. 37(c) (see Buergenthal, op. cit. n. 49, at p. 80).
52. Cf., inter alia, Art. 26 VCLT.
53. Cf., Erler, J., Rechtsfragen der ICAO: die Internationale Zivilluftfahrtorganisation und ihre Mitgliedstaaten (Köln, Heymanns 1967) pp. 135 et seq.Google Scholar
54. Cf., Loibl and Reiterer, op. cit n. 26, at p. 65; admittedly this restriction to a State's freedom to comply or not to comply with a standard is not a very strong one; it may in our opinion, however, not be ignored.
55. This is also evidenced by Art. 54(1) under which SARPS are designated as Annexes ‘for convenience’.
56. As standards are not treaty rules, regulations concerning the ‘Application of successive treaties relating to the same subject matter’ as contained in Art. 30 VCLT cannot be applied; the problem can only be solved by interpretation of the provisions in the Convention authorising the ICAO-Council to adopt standards (cf., Verdross, A. and Simma, B., Universelles Völkerrecht – Theorie und Praxis, 3rd edn. (Berlin, Duncker & Humblot 1984) at p. 415)CrossRefGoogle Scholar; as the Chicago Convention lacks a provision similar to, e.g., Art. 103 UN-Charter and as standards do not have a binding force in the strict sense, standards cannot supercede treaty law.
57. See Winter, op. cit. n. 19, at p. 141.
58. Loibl and Reiterer, op. cit. n. 27, at p. 69.
59. Annex 9, Chapter 4, Section G reads as follows: ‘Aircraft Equipment, Stores and Parts–4.42 Stores imported into the territory of a Contracting State by an airline of another Contracting State for use in connexion with the establishment or maintenance of an international service operated by that airline shall be admitted free of customs duties and other taxes or charges subject to compliance with the regulations of the Contracting State concerned. Such regulations shall not unreasonably interfere with the necessary use by the airline concerned of such stores.’
60. See Foreword to Annex 9 – Facilitation, v.
61. It is submitted that Art. 37(j) should be read in conjunction with Art. 22 (Facilitation of formalities) and 23 (Customs and immigration procedures). As these provisions merely relate to procedures or the administration of relevant laws, Art. 37(j) cannot be construed as vesting the Council with the competence to adopt SARPS interdicting, imposing or allowing the introduction of levies.
62. Cf., Art. 3(3)(b) VCLT.
63. ‘United Nations Framework Convention on Climate Change’, 31 ILM (1992) p. 848.Google Scholar
64. ‘Kyoto Protocol to the Convention on Climate Change’, 37 ILM (1998) p. 22.Google Scholar
65. International Standards and Recommended Practices, Environmental Protection, Annex 16 to the Convention on International Civil Aviation, Volume 2 – Emissions, 1st edn. (1981, latest amendment 1999); for a brief summary of the latest changes in Annex 16 cf., ICAO Press Release ‘ICAO adopts new aircraft engine emissions and noise standards’ (PIO 02/99), available at URL: http://www.icao.int/icao/en/nr/pio9902.htm.
66. Cf., in this regard the Statement from the ICAO to the Fourth Session of the Conference of the Parties to the UNFCCC, available at URL: http://www.ico.int/icao/en/env/cop-4.htm.
67. ICAO-Doc. 7145; cf., ICAO's Policies on Taxation, loc. cit. n. 18, at p. 1.
68. Both resolutions are reprinted in ICAO's Policies on Taxation, loc. cit. n. 18, at p. 3. The resolutions basically require that fuel contained in the tanks of an aircraft (operative para. 1) and fuel taken on board for consumption during the flight (operative para. 2) shall be exempt from all customs and other duties. In this, their scope is wider than that of Art. 24 Chicago Convention, which merely requires fuel ‘in transit’ be exempt from all customs and other duties. Art. 24 in itself is, as shown above, no obstacle to the imposition of taxes on kerosene bunkered in the territory of the respective State.
69. Cf., supra n. 32.
70. Cf., Foreword to ICAO's Policies on Taxation, loc. cit. n. 18.
71. Cf., ICAO adopts New Aircraft Engine Emissions and Noise Standards, loc. cit. n. 65.
72. Resolution on Environmental Charges and Taxes, loc. cit. n. 20. ICAO, through its Committee on Aviation Environmental Protection (CAEP) and other bodies, has now commenced work also on other market-based mechanisms such as emissions trading; cf., Report of the Executive Committee, 32nd Assembly, loc. cit. n. 37, paras. 21:1ss, 21:19.
73. Preamble para. 1.
74. Preamble para. 2.
75. Operative para. 1.
76. Operative para. 2.
77. Operative para. 4.
78. Art. 15(2) Chicago Convention; in operative para. 5 of the resolution the Council urges States that are considering the introduction of emission-related charges to take into account the non-discrimination principle in Art. 15 (see also Preamble para. 6(c)). As Art. 15 only applies to ‘airport and similar charges’ – and not to taxes – it seems that under the Chicago system a non-discrimination rule concerning taxes is hardly visible. It might – with some difficulty though – be argued that the non-discrimination rule of Art. 11 Chicago Convention also applies to taxes. Art. 11, however, primarily concerns technical and operational aspects of international civil aviation (cf., Loibl and Reiterer, op. cit. n. 27, at p. 47).
79. See e.g., Resolution on Environmental Charges and Taxes, loc. cit. n. 20, Preamble, para. 5 and para. 1 of the Introduction to the Statements by the Council, loc. cit. n. 31, at p. 1.
80. Reprinted in Section I of ICAO's Policies on Taxation, loc. cit. n. 18.
81. Emphasis added.
82. OECD, Economic Instruments for Environmental Protection (1989) p. 14.
83. Resolution on Environmental Charges and Taxes, loc. cit. n. 20, Operative para. 5 (a); cf., also Report of the Executive Committee, 32nd Assembly, loc. cit. n. 37, para. 21:18.
84. Cf., in this regard programmes like MOZAIC (Measurement of Ozone in Airbus In-Service Aircraft), AEROCHEM (concerning the impact of aircraft engine emissions on ozone and other chemical compounds on the atmosphere) or AERONOX (concerning NOx-emissions); see International Air Transport Association ed., Environmental Review (1996) pp. 44 et seq.Google Scholar
85. In the field of ‘aircraft operations’ reference may be made to programmes aiming at air traffic control and route optimisation, such as so-called free-flight concepts, EATCHIP (European Air Traffic Control Harmonization and Integration) which has recently been transformed into the EATMP (European Air Traffic Management Program carried out under the supervision of Eurocontrol), the ATALS II Program of the European Union, or so-called reduced take-off power procedures and fuel-saving programs; reference may also be made to regulations adopted by the JAA (Joint Aviation Authorities, an association of European aviation authorities), e.g., Joint Aviation Rules-Operations (JAR-OPS) 1.235.
86. Note that during the 32nd ICAO Assembly it was also stated that these charges ‘should not be punitive’ (cf., Report of the Executive Committee, 32nd Assembly, loc. cit. n. 37, para. 21:18).
87. Operative para. 5 of the Council Resolution on Environmental Charges and Taxes (emphasis in original); the Statements by the Council to Contracting States on Charges for Airports and Air Navigation Services to which the Council refers to as ICAO-Doc. 9082/4 has been amended in 1997 and is now published as ICAO-Doc. 9082/5; note also that during the 32nd ICAO Assembly reference has been made to ‘the Council's interim recommendations’ (Report of the Executive Committee, 32nd Assembly, loc. cit. n. 37, para. 21:18).
88. Weber, L., ‘Air Transport Agreements’, 1 EPIL (1992) p. 75Google Scholar; Hafner, G., ‘Räumliche Regime und Internationale Nutzungen’, in Neuhold, H., Hummer, W. and Schreuer, C., eds., Österreichisches Handbuch des Völkerrechts, Vol. I (Vienna, Manzsche Verlag 1997) pp. 358, 372.Google Scholar
89. According to Arts. 81 and 83 of the Chicago Convention these agreements are to be registered with the ICAO; see also supra n. 38.
90. Cf., Wassenbergh, H.A., Post-War International Civil Aviation Policy and the Law of the Air (The Hague, Nijhoff 1962) p. 53CrossRefGoogle Scholar; Weber, loc. cit. n. 88, at p. 75.
91. Under the title ‘customs duties’ Article 9 reads as follows:
‘(1) Aircraft operated in international air services by the designated airlines of either Contracting Party, their regular equipment, fuel, lubricants, consumable technical supplies, spare parts including engines, and aircraft stores including but not limited to such items as food, beverages and tobacco, which are on board such aircraft, shall be relieved on the basis of reciprocity from all custom duties, national excise taxes, and similar national fees and charges not based on the cost of services provided, on arriving in the territory of the other Contracting Party, provided such equipment and supplies remain on board the aircraft.
(2) There shall also be relieved from the duties, fees and charges referred to in paragraph (1) of this article, with the exception of charges based on the cost of the service provided: (a) aircraft stores, introduced into or supplied in the territory of a Contracting Party, and taken on board, within reasonable limits, for use on outbound aircraft engaged in an international air service of a designated airline of the other Contracting Party; (b) spare parts including engines introduced into the territory of a Contracting Party for the maintenance or repair used in an international air service of a designated airline of the other Contracting Party; and (c) fuel, lubricants and consumable technical supplies introduced into or supplied in the territory of a Contracting Party for use in an aircraft engaged in an international air service of a designated airline of the other Party, even when these supplies are to be used on a part of the journey performed over the territory of the Contracting Party in which they are taken on board.
(3) Equipment and supplies referred to in paragraphs (1) and (2) of this article may be required to be kept under the supervision or control of the appropriate authorities.
(4) The reliefs provided for by this article shall also be available in situations where the designated airlines of one Contracting Party have entered into arrangements with another airline or airlines for the loan or transfer in the territory of the other Contracting Party of the items specified in paragraphs (1) and (2) of this article provided such other airline or airlines similarly enjoy such reliefs from such other Contracting Party.’ (1079 UNTS p. 21)
92. Cf., the Air Services case between the United States of America and France. There the question of proportionality in regard to reprisals was scrutinised; 54 ILR (1979) p. 304.Google Scholar
93. Loc. cit. n. 64.
94. Decision 2/CP.3 (FCCC/CP/1997/7/Add.1, 31), available at URL: http://www.unfccc.de.
95. Cf., Summary for Policymakers, loc. cit. n. 13.
96. Ibid., para. 6.4.
97. COP5 expressed its appreciation to ICAO for requesting and IPCC for preparing the Special Report on Aviation and the Global Atmosphere. It welcomed the Special Report as a comprehensive assessment of the effects of aircraft emissions on the climate and atmospheric ozone. Furthermore, COP5 requested the secretariat to continue to develop its cooperation with the secretariats of ICAO and IMO and asked SBSTA to continue its current work on methodological issues related to reporting on emissions based upon fuel sold to ships and aircraft engaged in international transport, (see FCCC/CP/1999/L.17 dated 4 November 1999).
98. Reprinted in WTO, ed., The Results of the Uruguay Round of Multilateral Trade Negotiations – The Legal Texts, p. 485.
99. Cf., Art. III entitled ‘National Treatment on Internal Taxation and Regulation’. See further Art. I concerning ‘most-favoured nation treatment’ and Art. XI on ‘elimination of quantitative restrictions’.
100. Reprinted in loc. cit. n. 90, at p. 325.
101. Para. 3 of the Annex on Air Transport Services states: ‘The Agreement shall apply to measuŕes affecting: (a) aircraft repair and maintenance services; (b) the selling and marketing of air transport services; (c) computer reservation system (CRS) services.’
102. Although a levy on kerosene levy might lead to a distortion of competition between airlines – by way of stop-overs in the territory of non-Annex I countries – such effects are subject to the national sovereignty of a State. In other areas of policy-making such distinctions are accepted, e.g., in the area of income taxation.
103. Cf., American Law Institute, Restatement of the Law, Third, The Foreign Relations Law of the United States (St. Paul MN, ALI 1986) p. 240.Google Scholar