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  • Natalie L. Dobson (a1) and Cedric Ryngaert (a1)


In 2015, frustrated by the slow pace of negotiations in the International Maritime Organisation, the EU issued Regulation 2015/757 on the monitoring, reporting, and verification of carbon dioxide emissions from maritime transport. Echoing the controversial Aviation Directive, the Regulation is intended to support a unilateral market-based measure, and includes emissions from outside EU territory. This raises the question whether, according to international law, the EU has jurisdiction to regulate such ‘extraterritorial’ circumstances. In exploring the appropriate jurisdictional bases, we argue that neither the Law of the Sea Convention, nor world trade law definitively decide this issue. We therefore devote more detailed attention to the customary international law of State jurisdiction supplementing these regimes. We seek to build on the existing analysis by examining climate change as a ‘common concern of mankind’. We argue that this emerging concept has distinct legal implications that can and should be accommodated within the interest-balancing exercise underlying the jurisdictional analysis.

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1 UNFCCC, Draft Decision -/CP.21 ‘Paris Agreement’ (2015) 7 FCCC/CP/2015/L.9/Rev.1 (Paris Agreement).

2 Paris Agreement rec 7.

3 Paris Agreement (n 1) rec 10.

4 Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) UN Doc FCCC/CP/1997/7/Add.1 (Kyoto Protocol, art 2(2). Reference to aviation and maritime emissions was dropped late in negotiations. See, ‘Shipping Dropped from Paris Climate Deal’ World Maritime News (10 December 2015) <>.

5 ibid art 2(2).

6 See Parliament and Council Decision (EC) 1600/2002 laying down the Sixth Community Environment Action Programme [2002] OJ L 242/1. Art 5 (iii) provides for the Community to ‘identify and undertake specific actions to reduce greenhouse gas emissions from aviation and maritime if no such action were agreed within the ICAO by 2002, the IMO by 2003’. Combatting climate change was incorporated as a formal Union objective in art 191(1) of the Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47-390 (TFEU).

7 Parliament and Council (EU) Reg 2015/757 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC [2015] OJ L 123/55 (Reg 2015/757). Note, the EU as a regional organization is considered here to exercise ‘collective’ unilateralism. See P Dupuy, ‘The Place and Role of Unilateralism in Contemporary International Law’ (2000) 11 EJIL 19, 29.

8 Commission (EU), ‘Integrating maritime transport emissions in the EU's greenhouse gas reduction policies’ (Communication) COM (2013/479) final, 28 June 2013 (COM (2013)479) 7.

9 ibid 7–8.

10 See eg International Chamber of Shipping, ‘Brief for EU Member States and Members of the European Parliament Proposal for a Regulation of The European Parliament and of the Council on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport and amending Regulation (EU) No 525/2013 – Preliminary ICS Comments on Draft EU Regulation on MRV’ (, 10 October 2013) <>. For further reported statements from International Chamber of Shipping, Bimco and Intercargo: Bartlett, Charalie, ‘Industry Groups “Disappointed but Not Surprised” at EU MRV VerdictSeatrade Maritime News (London, 29 April 2015) <>.

11 It is generally accepted that art 2(2) Kyoto Protocol does not endow the IMO with exclusive competence to regulate maritime emissions. See eg Bäuerle, T, ‘Integrating Shipping into the EU Emissions Trading Scheme?’ in Koch, H, König, D and Sanden, J (eds), Climate change and environmental hazards related to shipping: an international legal framework; proceedings of the Hamburg International Environmental Law Conference 2011 (Martinus Nijhoff 2013); Ringbom, H, ‘Global Problem—Regional Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships’ (2011) 26 IJMCL 613. The unilateral nature of an act does not render it illegal, as legality is dependent on the legal framework in which it is taken. See for further discussion eg Hartmann, J, ‘Unilateralism in International Law: Implications of the Inclusion of Emissions from Aviation in the EU ETS’ (2015) 11 Questions of International Law, Zoom In 19; Hakimi, M, ‘Unfriendly Unilateralism’ (2014) 55 HarvInt'lLJ 105.

12 See Parliament and Council (EC) Directive 2008/101 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community [2008] OJ L 8/3 (Aviation Directive). This was followed by Parliament and Council (EU) Decision 377/2013 derogating temporarily from Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community [2013] OJ 113/1. Parliament and Council Regulation (EU) 421/2014 establishing a scheme for greenhouse gas emission allowance trading within the Community, in view of the implementation by 2020 of an international agreement applying a single global market-based measure to international aviation emissions [2014] OJ L 129/1-4, regulates the interim period.

13 In late September 2016, pursuant to EU pressure, ICAO Member States reached the first global agreement targeting aviation emissions through ‘carbon neutral’ growth (ICAO 39th Session, Montreal). It remains to be seen whether this will be sufficient to prevent the EU from reinstating the full scope of the Aviation Directive. See R Marowitz, ‘ICAO Begins Discussions Aimed at Reaching Global Aviation Emissions Deal’ (CBC News, 27 September 2016) <>.

14 The Court of Justice of the EU (CJEU) has repeatedly confirmed that the EU is bound by international law, including the law of jurisdiction. See Case C–162/96 Racke v Hauptzollamt Mainz [1998] ECR I–3655 [45]; and Case C-366/10 Air Transport Association of America, American Airlines, Inc, Continental Airlines, Inc, United Airlines, Inc v The Secretary of State for Energy and Climate Change (ATAA Case) [2011] ECR I-0000 [123].

15 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (LOSC).

16 For positive conclusions see, Bäuerle (n 11); Ringbom (n 11); T Bäuerle et al., ‘Integration of Marine Transport into the European Emissions Trading System – Environmental, Economic and Legal Analysis of Different Options’ (German Federal Environment Agency (Umweltbundesamt) 2010) Rep No (UBA-FB) 001372; H Murphy, ‘The Extension of the EU ETS to Aviation and Shipping: Examining the Legality of Unilateral Environmental Measures under Public International Law and World Trade Organisation Law’ <https://>. For more critical conclusions, see C Hermeling et al., ‘Sailing Into a Dilemma – An Economic and Legal Analysis of an EU Trading Scheme for Maritime Emissions’ (Centre for European Economic Research 2014) Discussion Paper No 14-021; M Kremlis, ‘The Inclusion of the Shipping Industry in the EU ETS’ (2010) 19 EEELR 145; J Faber et al., ‘Technical Support for European Action to Reducing Greenhouse Gas Emissions from International Maritime Transport’ (CE Delft 2009) Tender DG ENV.C3/ATA/2008/0016; A Miola et al., ‘Regulating Air Emissions from Ships – The State of the Art on Methodologies, Technologies and Policy Options’ (European Commission, Joint Research Centre, Institute for Environment and Sustainability 2010) JRC60732; P Campling et al., ‘Market-Based Instruments for Reducing Air Pollution – Assessment of Policy Options to Reduce Air Pollution from Shipping’ (Final Report for the European Commission's DG Environment, 2010) Contract ENV.C.4/SER/2008/0019_Lot2.

17 Ringbom (n 11) 629, 637.

18 WTO, United States – Standards for Reformulated and Conventional Gasoline – Panel Report (29 April 1996) WT/DS2/R (US – Gasoline (Panel) 17. For further discussion on the interaction between these regimes see J Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (CUP 2003).

19 General Agreement on Tariffs and Trade 1994 (adopted 15 April 1994, entered into 1 January 1995) 1867 UNTS 154 (GATT 1994).

20 For further discussion on the practice of interest-balancing within the customary law of jurisdiction see, Ryngaert, C, Jurisdiction in International Law (2nd edn, OUP 2015) 150.

21 UNGA Res 43/53 (6 December 1988) UN Doc A/RES/43/53 (UNGA Res 43/53) art 1.

22 The common concern has received increasing attention in the literature over the past decade. See eg Voigt, C, ‘Delineating the Common Interest in International Law’ in Benedek, W et al. (eds), The Common Interest in International Law (Intersentia 2014); T Cottier et al., The Principle of Common Concern and Climate Change, Working Paper, 2014/18 (2014) 293; Shelton, D, ‘Common Concern of Humanity’ (2009) 1 Iustum Aequum Salutare 33; Hey, E, ‘Global Environmental Law: Common Interests and the Reconstruction of Public Space’ in Lenzerini, F and Vrdoljak, A F (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing 2014); Biermann, F, ‘“Common Concern of Humankind”: The Emergence of a New Concept of International Environmental Law’ (1996) 34 AVR 1426; Brunnée, J, ‘Common Areas, Common Heritage and Common Concern’ in Bodansky, D, Brunnée, J and Hey, E (eds), The Oxford Handbook of International Environment Law (OUP 2007) 565.

23 See further Simma, B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 RdC 217; Benvenisti, E, ‘Sovereigns as Trustees of Humanity: On the Accountability of Sovereigns to Foreign Stakeholders’ (2013) 107 AJIL 295; Voigt (n 22). See further on the cosmopolitan theory of normative individualism, Pierik, R and Werner, W (eds), Cosmopolitanism in Context: Perspectives on International Law and Political Theory (CUP 2010).

24 See further on the distinction between ‘coinciding state interests’ and ‘common’ interests, J Brunnée, ‘“Common Interest” – Echoes from an Empty Shell? Some Thoughts on Common Interests and International Environment Law’ [1989] Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 791.

25 Simma (n 23) 81.

26 Prosecutor v Duško Tadić aka ‘Dule’ (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) IT-94-1 (2 October 1995) [97].

27 This is in line with the ICJ's finding in Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Second Phase, (Judgment) [1970] ICJ Rep 32 (Barcelona Traction) [33], that erga omnes obligations arise ‘by their very nature […] in view of the importance of the rights involved’. Voigt (n 29) 17, argues that collective survival is ‘the primary common concern’. See for a different view, Shelton (n 22) 35.

28 Shelton (n 22) 34. Common concerns are linked to the concept of global public goods (GPGs). GPGs are defined as non-rivalrous and non-excludable goods (‘public’), which tend to be undersupplied at a global level as governments lack the incentive to produce them (‘global’). This arises due to governments’ reciprocal lack of confidence that the others will share the costs of production, combined with the fact that the objective of production will only be achieved when all act collectively. A key example of this is climate change mitigation. See further D Bodansky, ‘What's in a Concept? Global Public Goods, International Law and Legitimacy’ 23 EJIL 651 (2012); N Krisch, ‘The Decay of Consent, International Law in the Age of Global Public Goods’ (2014) 108 AJIL 1; Caffagi, F and Caron, D, ‘Global Public Goods amidst a Plurality of Legal Orders: A Symposium’ (2012) 23 EJIL 643.

29 C Voigt, ‘Delineating the Common Interest in International Law’ (n 22) 19.

30 Brunnée (n 22) 564.

31 Clancy, EA,  ‘The Tragedy of the Global Commons’ (1998) 5 IndJGlobalLegalStudies 601, 3.

32 Cottier et al. (n 22) 13.

33 Concerns need not be limited to environment however, see eg Beitz, C, ‘Human Rights as a Common Concern’ (2001) 95 AmPoliSciRev 269, 281.

34 Barcelona Traction (n 27) [33].

35 ibid.

36 See further J Crawford, Articles on Responsibility of States for Internationally Wrongful Acts (United Nations 2012) <>; de Wet, E, ‘Invoking Obligations Erga Omnes in the Twenty-First Century: Progressive Developments Since Barcelona Traction’ (2013) 37 SAYIL 1.

37 See ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc A/56/10 (DARS), art 48.

38 Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal). (Merits) ICJ Rep 422 [38].

39 See for further discussion on shared values and customary erga omnes obligations, Shelton (n 22) 39; Ryngaert, C, Inaugural Lecture – Unilateral Jurisdiction and Global Values (Eleven International Publishing 2015) 39, 42–4.

40 Benvenisti (n 23) 301. See also Hey (n 22) 45, 45: ‘the common concern requires that states within their territory and over activities subject to their jurisdiction adopt measures to curtail environmental degradation and that states assist each other in addressing these problems’.

41 See for a similar wording, Committee on Legal Principles Relating to Climate Change, ‘Declaration of Legal Principles Relating to Climate Change’, International Law Association Resolution 2/214 (2014), Annex: ILA Principles Relating to Climate Change – Draft Articles (ILA Draft Articles Relating to Climate Change) art 7A.

42 See further Wolfrom, R, ‘International Law of Cooperation’ in Wolfrum, R (ed), Max Planck Encyclopaedia of Public International Law (2008) available at <> [7].

43 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (UN Charter) art 1(3).

44 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/25/2625, Principle 4.

45 MOX Plant (Ireland v United Kingdom) (Provisional Measures, Order of 3rd December 2001) ITLOS Reports 2001 [82].

46 See eg F Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (Springer 2000) 332; Hertogen, A, ‘Letting Lotus Bloom’ (2016) 26 EJIL 901, 924; Koskenniemi, M, ‘What Use for Sovereignty Today?’ (2011) 1 AsianJIL 61, 63.

47 This is clearly visible in the rise of the ‘responsibility to protect’ doctrine. See further Koskenniemi (n 46) 65; Orford, A, International Authority and the Responsibility to Protect (CUP 2011); Stec, S, ‘Humanitarian Limits to Sovereignty: Common Concern and Common Heritage Approaches to Natural Resources and Environment’ (2010) 12 IntCLR 361, 364. See also the Separate opinion of Vice-President Weeramantry, in ICJ, Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (Merits) ICJ Rep (1997) 7.

48 UN Charter (n 43) art 2(1).

49 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 393–394, Dissenting Opinion of Judge Shahabuddeen.

50 Benvenisti (n 23) 316; UN Charter (n 43) art 1(2).

51 See UNCED, Declaration of the United Nations Conference on the Human Environment (1972) UN Doc A/Conf.48/14/Rev (Stockholm Declaration) Principle 21, and the Trail Smelter Arbitration (1941) 3 UN Rep Int'l Arb Awards 1905. See also UNEP, Environmental Law: Guidelines and Principles, No 2, Shared Natural Resources (Nairobi 1978) Principle 3.

52 See eg UNCED, Rio Declaration on Environment and Development (1992) UN Doc A/Conf.151/26 (vol. I), (Rio Declaration) Principle 15; United Nations Framework Convention on Climate Change, 1771 UNTS 107 (1992) (UNFCCC) art 3(3).

53 See further J Peel, ‘The Practice of Shared Responsibility in Relation to Climate Change’ (2015) SHARES Research Paper No 71 <>. Peel refers to the broad interpretation of ‘transboundary harm’ in the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, ILC, ‘Report on the work of its fifty-third session’ (2001) UN Doc A/56/10, art 2(c).

54 ILA Draft Articles Relating to Climate Change (n 41) art 7(A)2. See also Biermann (n 22) 443.

55 Peel (n 53) 20; C Voigt, ‘State Responsibility for Climate Change Damages’ (2008) 77 NordicJIntlL 1, 5.

56 Oslo Principles on Global Climate Change Obligations  (1 March 2015), <> (Oslo Principles) Principles 1, 14.

57 ibid art 3.

58 ibid Principle 14.

59 The Oslo Principles have been drafted by legal experts who seek to ‘identify and articulate a set of Principles’ that comprise States’ ‘essential obligations’ to ‘avert the critical level of global warming’ (ibid, rec 1).

60 ILC, Report of the International Law Commission on the Work of its 58th Session (2006) UN Doc A/61/10 (2006 ILC Report on Extraterritorial Jurisdiction) 518.

61 See for some examples: M Kamminga, ‘Extraterritoriality’ in Max Planck Encyclopaedia of Public International Law (n 42); International Bar Association, ‘Report of the Taskforce on Extraterritorial Jurisdiction’ (6 February 2009) (IBA Report on Extraterritorial Jurisdiction); 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 518.

62 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 518.

63 ibid 516. See also Kamminga (n 61) [1].

64 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 517–8; Restatement (Third) of the Foreign Relations Law of the United States, vol. 1, (American Law Institute Publishers 1986) (US 3rd Restatement) section 401(a).

65 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 518; US 3rd Restatement (n 64) section 401(c).

66 Kamminga (n 61) [8].

67 Lowe, V and Staker, C, ‘Jurisdiction’ in Evans, MD (ed), International Law (3rd edn, OUP 2010) 320–3; C Ryngaert, Jurisdiction in International Law (n 20) 78–80.

68 ‘IBA Report on Extraterritorial Jurisdiction’ (n 61) 14. See for further discussion O'Keefe, R, ‘Universal Jurisdiction Clarifying the Basic Concept’ (2004) 2 JICJ 735.

69 Kamminga (n 61) [16]; IBA Report on Extraterritorial Jurisdiction (n 61) 11.

70 Jennings, R and Watts, A, Oppenheim's International Law (9th edn, OUP 1992) 456–8. See for further discussion and references fn 199.

71 Scott, J, ‘Extraterritoriality and Territorial Extension in EU Law’ (2014) 62 AJIL 87.

72 ATAA Case (n 14).

73 Aviation Directive (n 12) amending, Parliament and Council (EU) Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC [2003] OJ L 275 (ETS Directive).

74 ATAA Case (n 14) [124]–[125].

75 Ringbom (n 11) 626; Hermeling et al. (n 16) 13; Bäuerle et al. (n 16) 84.

76 See further Ryngaert, C and Ringbom, H, ‘Introduction: Port State Jurisdiction: Challenges and Potential’ (2016) 31 IJMCL 379, 382–3; Bartels, L, ‘Article XX of GATT and the Problem of Extraterritorial Jurisdiction – The Case of Trade Measures for the Protection of Human Rights’ (2002) 36 JWT 353, 378.

77 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 518; Kamminga (n 61) [7].

78 See for the similar phrase ‘foreign element’, ICJ, Case Concerning Barcelona Traction, Light and Power Co. Ltd. (Belgium v Spain) (Merits) [1970] ICJ Rep 3, 105.

79 See eg Ankersmit, L, Lawrence, J and Davies, G, ‘Diverging EU and WTO Perspectives on Extraterritorial Process Regulation’ (2012) 21 Minnesota Journal of International Law online 14, 25.

80 See further Bartels (n 76) 381. Joanne Scott uses a similar formulation in her definition of territorial extension, which occurs when the ‘relevant regulatory determination’ is formed, ‘as a matter of law, by conduct or circumstances abroad’ (Scott (n 71) 90).

81 Bartels (n 76) 381.

82 Parliament and Council (EU) Directive 2009/29/EC amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community [2009] OJ L 140/63. See also Parliament and Council (EU) Decision 406/2009/EC on the effort of Member States to reduce their greenhouse gas emissions to meet the Community's greenhouse gas emission reduction commitments up to 2020 [2009] OJ L 140/136.

83 Resolution MEPC.203(62), making mandatory the Energy Efficiency Design Index (EEDI) for new ships; Ship Energy Management Plan (SEEMP) for all ships in Annex VI of the International Convention for the Prevention of Pollution from Ships, 1340 UNTS 184 (1973).

84 See COM (2013)479 (n 8) 2; Commission (EU), ‘Executive Summary of the Impact Assessment Accompanying the Document Proposal for a Regulation of the European Parliament and of the Council on the Monitoring, Reporting and Verification of Carbon Dioxide Emissions from Maritime Transport and Amending Regulation (EU) No 525/2013’ (Commission Staff Working Document) SWD(2013) 236 final, 28 June 2013 (Executive Summary of the MRV Impact Assessment).

85 Executive Summary of the MRV Impact Assessment (n 84) 2.

86 COM (2013)479 (n 8) 7–8.

87 Regulation 2015/757 (n 7) 13; COM (2013)479 (n 8) 5.

88 Regulation 2015/757 (n 7) rec 13 & art 1, 3(d). While originally it was suggested that several GHGs should be included, the final MRV only covers CO2 emissions. For the failed draft see: Committee on the Environment, Public Health and Food Safety, ‘Draft Report on the proposal for a regulation of the European Parliament and of the Council on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport and amending Regulation (EU) No 525/2013’ (Draft Report) (8 November 2013) 2013/0224(COD).

89 Regulation 2015/757 (n 7) arts 2, 4, 8, 9.

90 The four approved methods are: the use of Bunker Fuel Delivery Notes, bunker fuel tank monitoring on-board, flow meters for applicable combustion processes or direct emission measurements (ibid Annex 1). Annex II specifies how companies should collect the ‘other relevant information’ instrumental to the monitoring itself, such as the date and time of departure and the distance travelled.

91 ibid art 3(f), 13, 15.

92 ibid art 3(h), 17, 18.

93 Churchill, R, ‘Port State Jurisdiction Relating to the Safety of Shipping and Pollution from Ships—What Degree of Extra-territoriality?’ (2016) 31 IJMCL 442, 456.

94 Marten, B, ‘Port State Jurisdiction over Vessel Information: Territoriality, Extra-Territoriality and the Future of Shipping Regulation’ (2016) 31 IJMCL 470, 489.

95 Bäuerle et al. (n 16) 85 go so far as to argue that such a re-characterization would be ‘an unlawful circumvention of the general principles of international law’.

96 COM (2013)479 (n 8) 7.

97 ibid.

98 Executive Summary of the MRV Impact Assessment (n 84) 4.

99 ibid. The contractual agreement will furthermore ‘include provisions in case of collective overshooting of the targets’, however the communication leaves open what these will contain.

100 COM(2013)479, 7 also includes the third option of a ‘contribution based compensation fund’, however this is voluntary in nature and would only be implemented in combination with one of the obligatory measures.

101 See fn 16 for an overview of the literature.

102 See Ringbom (n 11); Hermeling et al. (n 16); Bäuerle (n 11); Kremlis (n 16); Murphy (n 16); Bäuerle et al. (n 16).

103 Hermeling et al. (n 16) 13–14; Bäuerle et al. (n 16) 85.

104 Hermeling et al. (n 16) 13.

105 ibid.

106 LOSC (n 15) art 2(1). See further Ringbom (n 11) 256. See also Kopela, S, ‘Port-State Jurisdiction, Extraterritoriality, and the Protection of Global Commons’ (2016) 47 OceanDev&IntlL 89.

107 Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 3 [213].

108 LOSC (n 15) art 211(3)(f).

109 This is an ‘effects-based’ view, focusing on link between CO2 and climate change which is the core cause of environmental harm. See Bäuerle et al. (n 16) 91; LOSC (n 15) art 1(4).

110 See further Churchill (n 93) 443.

111 See Regulation 2015/757 (n 7) Annex I.

112 International Convention for the Prevention of Pollution from Ships (signed 2 November 1973, entered into force 2 October 1983) 1340 UNTS 62 (MARPOL).

113 Churchill (n 93) 450. An example of such a unilateral CDEM standard is Parliament and Council (EC) Regulation 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single hull oil tankers (as amended) [2002] OJ L64/1.

114 ibid.

115 See further Molenaar, E, ‘Port State Jurisdiction: Toward Comprehensive, Mandatory and Global Coverage’ (2007) 38 OceanDev&IntlL 225. See also Ringbom (n 11) 625.

116 Churchill (n 93) 454. This rests on a somewhat different conception of ‘extraterritoriality’ than that used here (Section IIC).

117 Honniball, A, ‘The Exclusive Jurisdiction of Flag States: A Limitation on Pro-Active Port States?’ (2016) 31 IJMCL 499.

118 UN, Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT), art 31(3)c. See further eg Pulkowski, D, The Law and Politics of International Regime Conflict (OUP 2014). For a more general discussion on customary law and port state jurisdiction see, Molenaar (n 115) 229.

119 Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) 1867 UNTS 154 (WTO Agreement), rec 1.

120 GATT 1994 (n 19).

121 General Agreement on Trade in Services (adopted 15 April 1994, entered into force 1 January 1995) 1869 UNTS 183 (GATS) art 1. See further Council for Trade in Services, ‘Maritime Transport Services – Background Note by the Secretariat’ (World Trade Organization 2010) S/C/W/315. Note, at the time of writing 23 WTO Members including the EU are negotiating the ‘Trade in Services Agreement’ (TiSA) which will include maritime transport. See for the EU position, European Commission, ‘Trade in Services Agreement (TiSA)’ (, 27 October 2016) <>.

122 Agreement on Technical Barriers to Trade (adopted 15 April 1994, entered into force 1 January 1995) 1868 UNTS 120. See for a TBT analysis of the EU aviation ETS, S R Sánchez-Tabernero, ‘For Whom the Bell Tolls: The EU ETS in Aviation under the TBT Agreement’ (2015) 49 JWTL 781.

123 This was left undecided during the TBT negotiations; see Committee on Technical Barriers to Trade, ‘Negotiating History of the Coverage of the Agreement on Technical Barriers to Trade with regard to Labelling Requirements, Voluntary Standards and Processes and Production Methods Unrelated to Product Characteristics’, Note by the Secretariat (29 August 1995) G/TBT/W11. The matter was later raised in WTO, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products – Report of the Appellate Body (5 April 2001) WT/DS135/AB/R paras 169–175 (EC–Asbestos) [67]–[70]; and European Communities – Trade Description of Sardines – Report of the Appellate Body (23 October 2002) WT/DS231/AB/R [176].

124 In EC–Seals the AB considered whether certain measures constituted ‘technical regulations’ concerning product characteristics. However it declined to complete the analysis on when a PPM has a ‘sufficient nexus’ to be ‘related to’ the product characteristics in the sense of Annex 1.1. (WTO, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products – Report of the Appellate Body (18 June 2014) WT/DS401/AB/R (EC–Seals) [5.12], [5.69]. See also US–Tuna (Mexico), which concerned labelling requirements for PPMs. (WTO, Appellate Body, United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (13 June 2012) WT/DS381/AB/R (US–Tuna II (Mexico)). Note though, that the test regarding labelling in the second part of Annex 1.1 is arguably more flexible than the first part (see EC–Seals [5.14]).

125 Note, however, in US–Tobacco the panel found that financial penalty provisions for the enforcement of domestic laws are not an ‘internal tax or charge of any kind’ in the sense of III:2, but rather an internal regulation in the sense of III:4. Should the excess emissions charges be considered a penalty, then the measure would constitute a non-fiscal measure and need to be assessed under art III:4 and XI GATT. (GATT, Panel Report, United States – Measures Affecting the Importation, Internal Sale and Use of Tobacco (4 October 1994) DS44/R (US–Tobacco).

126 For arguments favouring this characterization with regard to the aviation ETS see Bartels, L, ‘The Inclusion of Aviation in the EU ETS: WTO Law Considerations’ (International Centre for Trade and Sustainable Development 2012) Issue Paper No 6, 9; Pauwelyn, J, ‘Carbon Leakage Measures and Border Tax Adjustments under WTO Law’ in Prévost, D and van Calster, G (eds), Research Handbook on Environment, Health and the WTO (Edward Elgar 2012). See also the Opinion of Advocate General Kokott in the ATAA Case (n 14).

127 This is consistent with the OECD definition of a tax: ‘a compulsory unrequited payment to the government’. OECD, ‘Glossary of Tax Terms’ (, 2016) <>.

128 The difference between border measures as being triggered by virtue of importation, compared to internal measures which are triggered by virtue of an internal factor or activity, was explained in WTO, AB Report, China – Measures Affecting Imports of Automobile Parts (12 January 2009) WT/DS339,340,342/AB/R [158] (China–Autos).

129 For the definition of ‘like products’ see WTO, AB Report, Japan – Taxes on Alcoholic Beverages (1 November 2006) WT/DS8/AB/R.

130 In EC – Bananas III (Guatemala and Honduras) the panel found that a measure ‘grants an advantage’ to a product when it creates ‘more favourable competitive opportunities’. WTO, European Communities – Regime for the Importation, Sale and Distribution of Bananas – Panel Report (25 September 1997) WT/DS27/R [7.239]. On the characterization of ‘advantage’ as the lowest possible compliance cost, see Bartels (n 126) 12.

131 See ibid for the analogous reasoning of Bartels on the Aviation ETS. See also the Opinion of Advocate General Kokott to the ATAA Case (n 14).

132 See also China–Autos (n 128) [158].

133 WTO, Colombia – Indicative Prices and Restrictions on Ports of Entry – Panel Report (20 May 2009) WT/DS366/R [7.258]–[7.275].

134 See for more nuanced considerations in relation to an Aviation ETS, Bartels (n 126) 11.

135 Under art III:4 GATT, ‘less favourable treatment’ is treatment which modifies the conditions of competition. WTO, AB Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2001) WT/DS161/AB/R (Korea–Beef).

136 In WTO, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes – Report of the Appellate Body (25 April 2005) WT/DS302/AB/R [96], the AB held that ‘the existence of a detrimental effect on a given imported product resulting from a measure does not necessarily imply that this measure accords less favourable treatment to imports if the detrimental effect is explained by factors or circumstances unrelated to the foreign origin of the product […]’. Here, however, the detrimental effect does appear ‘explained’ by circumstances relating to the foreign origin.

137 This is a broad provision. See art I:3(a) GATS: ‘“measures by members”“measures by members” means measures taken by central, regional or local governments and authorities’. For the definitions of ‘trade in services’ and ‘measures affecting trade in services’ See further WTO, Canada – Certain Measures Affecting the Automotive Industry – Report of the Appellate Body (19 June 2000) WT/DS142/AB/R (Canada–Autos (AB)).

138 For ‘like services’, see WTO, China – Certain Measures Affecting Electronic Payment Services – Panel Report (31 August 2012) WT/DS413/R [7]. The measures are not saved by footnote 10 which provides that specific commitments ‘shall not be construed’ to require compensation for ‘inherent competitive disadvantages’ as this does not cover measures ‘which might modify the conditions of competition for services and service suppliers which are already disadvantaged due to their foreign character’. See WTO, Canada – Certain Measures Affecting the Automotive Industry – Panel Report (11 February 2000) WT/DS139/R [10.300] (Canada Autos (Panel)).

139 In EC–Bananas III (Guatemala and Honduras) (n 130) [233]–[234]. The AB, at [241] clarified that this includes both de jure and de facto discrimination. The ‘aim and effect’ of a measure is irrelevant under both arts II and XVII GATS.

140 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Report of the Appellate Body (6 November 1998) WT/DS58/AB/R (US–Shrimp) [121]. See further Voigt, C, ‘WTO Law and International Emissions Trading: Is There Potential for Conflict?’ (2008) 1 CCLR 52, 59.

141 Note, art XIV GATS does not contain the general exemption found in art GATT XX(g).

142 In US–Shrimp (n 140) [119]–[120], the AB clarified the order of the two-pronged test, starting with the requirements of the relevant paragraph and only then examining the chapeau requirements.

143 Regulation 2015/757 (n 7) rec 2; COM (2013)479 (n 8) 2.

144 European Commission, ‘Climate Change and Consequences’ (, 11 February 2016) <>. See also IPCC, ‘Climate Change 2014 Synthesis Report Summary for Policymakers: Future Risks and Impacts Caused by a Changing Climate’ (2014) Fifth Assessment Report (AR5) <>.

145 WTO, United States – Standards for Reformulated and Conventional Gasoline – Appellate Body Report (20 May 1996) WT/DS2/AB/R [6.21] (US–Gasoline (AB)).

146 WTO, Brazil – Measures Affecting Imports of Retreaded Tyres – Appellate Body Report (17 December 2007) WT/DS332/AB/R (Brazil–Retreaded Tyres) [151]. See also WTO, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef – Appellate Body Report (10 January 2001) WT/DS161/AB/R, (Korea–Beef) [161]; and EC–Asbestos (n 123) [169]–[175].

147 Korea–Beef (n 146) [162].

148 Brazil–Retreaded Tyres (n 146) [151] (emphasis added).

149 Executive Summary of the MRV Impact Assessment (n 84) 2.

150 ibid.

151 ibid 6.

152 ibid.

153 See further in relation to aviation emissions, J Meltzer, ‘Climate Change and Trade—The EU Aviation Directive and the WTO’ (2012) 15 JIEL 111.

154 See for an analogous argument in relation to long-haul flights, ibid 119, 120.

155 Colares, JF and Rode, A, ‘Working Paper: Climate Change Mitigation and Trade Rules: The Opportunities and Limitations of Neutral Border Tariffs’ (Energy Policy Institute at the University of Chicago 2015) <>. Colares and Rode argue that marginally increasing tariffs on foreign production and emissions, as a result of national (or EU) industry lobbying, may increase home production and emissions, which may be particularly harmful in case the latter is carbon-intensive; increased home production may thus decrease global welfare. The authors admit, however, that ‘informational requirements for evaluating [border carbon adjustment] on the grounds of economic efficiency might be administratively and statistically prohibitive’ (35).

156 This would also have to take into account the CBDR principle, discussed below in relation to the chapeau of art XX and returning in the analysis of customary international law in Section V.

157 Brazil–Retreaded Tyres (n 146) [307].

158 EC–Asbestos (n 123) [165]. Nor may a proposed alternative be ‘merely theoretical in nature’ (Brazil–Retreaded Tyres (n 146) [156].

159 See the IMO media statement on the 2009 meeting of the Marine Environment Protection Committee (MEPC 59): IMO, ‘Market Based Measures’ (, 2016) <>.

160 See also Regulation 2015/757 (n 7) rec 10.

161 Korea–Beef (n 146) [162].

162 Marceau, G and Trachtman, JP, ‘A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade’ (2014) 48 JWT 351.

163 UNFCCC (n 52) rec 1.

164 Brazil–Retreaded Tyres (n 146) [151].

165 Note, assuming a maritime ETS would have the same scope as the MRV, it would also meet the requirement of being ‘made effective in conjunction with restrictions on domestic production or consumption’, as all intra-EU voyages would also be subject to the scheme.

166 US–Shrimp (n 140) [2].

167 ibid [129] (emphasis added). The AB continues: ‘the preamble attached to the WTO Agreement shows that the signatories to that Agreement were, in 1994, fully aware of the importance and legitimacy of environmental protection as a goal of national and international policy’.

168 ibid.

169 US–Gasoline (Panel) (n 18) [6.37].

170 ibid.

171 Murphy (n 16) 31.

172 US–Shrimp (n 140) [137].

173 ibid.

174 ibid [158].

175 WTO, United States – Import Prohibition of Certain Shrimp and Shrimp Products – Recourse to Article 21.5 of the DSU by Malaysia (21 November 2001) WT/DS58/AB/RW [124].

176 ibid.

177 Separate submissions were made by France: Emissions Trading System (ETS) for International Shipping (France (MEPC 60/4/41); and the United Kingdom: Global Emissions Trading System (ETS) for international shipping (United Kingdom (MEPC 60/4/26). See further IMO, ‘Market-Based Measures’ (, 2016) <>.

178 See the IMO media statement on the MEPC 68: IMO, ‘Marine Environment Protection Committee (MEPC), 68th Session, 11 to 15 May 2015’ (, 15 May 2015) <>.

179 European Commission, ‘Time for International Action on CO2 Emissions from Shipping’ (, 2016) <>.

180 US–Shrimp (n 140) [161].

181 ibid [144].

182 Regulation 2015/757 (n 7) rec 12.

183 ibid.

184 Aviation Directive (n 12) rec 17.

185 Rio Declaration (n 52), Principle 7.

186 Brazil–Retreaded Tyres (n 146) [232]. See also WTO, United States – Measures Concerning The Importation, Marketing and Sale of Tuna and Tuna Products (Recourse to Article 21.5 of the DSU by Mexico) – Report of the Appellate Body (20 November 2015) WT/DS381/AB/RW/Add.1 [95].

187 See C Voigt, ‘WTO Law and International Emissions Trading: Is There Potential for Conflict?’ (n 140) 62.

188 United States – Restrictions on Imports of Tuna – Panel Report (16 June 1994) DS29/R (unadopted)) [5.16], [5.20].

189 ibid [5.20].

190 ibid [5.26].

191 US–Shrimp (n 140) [121].

192 ibid.

193 ibid [133].

194 ibid.

195 In EC–Seals (n 124) the AB did not explicitly discuss the issue of territorial limits, though it implied that the public morals which were the object of the measure were held by all citizens within the EU's territory. See for further analysis, R Howse, J Langille and K Sykes, ‘Sealing the Deal’ (2014) 18 ASIL Insights <https://>.

196 The travaux préparatoires are in fact the preparatory works of the Charter of the International Trade Organisation (ITO). These do not clarify the issue of territorial limitation as they were focused on the effects of lower trade standards. See further Bartels (n 76) 353; B Cooreman, ‘Addressing Environmental Concerns through Trade? A Case for Extraterritoriality’ (2015) 65 ICLQ 229. See also S Charnovitz, ‘Exploring the Environmental Exceptions in GATT Article XX’ (1991) 25 JWT 37.

197 For explicit endorsement of this approach see Bartels (n 76) 360; Cooreman (n 196) 234; Murphy (n 16) 31.

198 For an extensive analysis using MEAs to interpret the GATT see Marceau, G, ‘A Call for Coherence in International Law: Praises for the Prohibition against “Clinical Isolation” in WTO Dispute Settlement’ (1999) 33 JWT 87.

199 See eg Jennings, R and Watts, A, Oppenheim's International Law (9th edn, OUP 1992) 456–8; Crawford, J, Brownlie's Principles of Public International Law (8th edn, OUP 2012) 447; Mann, FA, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 RdC 9; Kamminga (n 61) [9]; and Bianchi, A, ‘Current Trends in Legal Scholarship: the Alleged Antinomy between Traditional Notions of the International Law of Jurisdiction and Recent Methods of Interest Analysis’ in Meessen, KM (ed), Extraterritorial Jurisdiction in Theory and Practice (Kluwer Law International 1996) 83–4.

200 Mann, FA, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’ (1984) 186 RdC 28.

201 Mann (n 199) 28.

202 Bartels (n 76) 372. See also Bianchi who requires an ‘effective and significant connection between the regulating state and the activity or fact to be regulated’, to be determined based precisely by state practice. (A Bianchi, ‘Jurisdictional Rules in Customary International Law’ in Meessen (n 199) 90–1).

203 See Crawford, Brownlie's Principles of Public International Law (n 199) 456–7.

204 These function, more as a matter of convenience than of substance to evidence a substantial and genuine connection. Jennings and Watts (n 70) 456–8.

205 Kamminga (n 61) [16]. See also Svantesson, D, ‘A New Jurisprudential Framework for Jurisdiction: Beyond the Harvard Draft’ (2015) 109 AJIL Unbound 69, 70–1.

206 Scott (n 71) 87; ATAA Case (n 14) [124]–[125].

207 There is no limited list or set of criteria to determine what constitutes a ‘vital’ national interest; Crawford, Brownlie's Principles of Public International Law (n 199) 462.

208 Ringbom (n 11) 631.

209 2006 ILC Report on Extraterritorial Jurisdiction (n 60) 522.

210 This is especially true for anti-trust law. See further C Ryngaert, Jurisdiction over Antitrust Violations in International Law (Intersentia 2008).

211 US 3rd Restatement (n 64) section 403(2). See Hertogen (n 46) 924, for an interesting conceptualization of ‘locality of effects’ as a basis for prescriptive jurisdiction allowing States to discharge their sovereign responsibilities which are effected by the negative externalities of foreign conduct.

212 See in particular Hermeling et al. (n 16) 15, who argue that ‘[d]ue to the high complexity of the climate change process, a chain of causes and effects that would clearly link GHG emissions from vessels anywhere in the world with specific environmental outcome, can scarcely be identified’.

213 Bäuerle et al. (n 16) 3.

214 See further on the causality between conduct and effects, Voigt, C, ‘Up in the Air – Aviation, the EU Emissions Trading Scheme and the Question of Jurisdiction’ in Barnard, C (ed), Cambridge Yearbook of European Legal Studies (Hart Publishing 2012). See also Biermann, F, ‘The Rising Tide of Green Unilateralism in World Trade Law. Options for Reconciling the Emerging North–South Conflict’ (2001) 35 JWT 421, 431.

215 Peel (n 53) 28. Peel refers to support from domestic practice, including: Clements v Clements 2012 SCC 32, [2012] 2 SCR 181, para 43; Fairchild v Glenhaven Funeral Services Ltd., [2002] UKHL 22, [2002] 3 All ER 305; and Barker v Corus UK Ltd., [2006] UKHL 20, [2006] 2 AC. She notes, however, that this is insufficient to support a general principle of international law.

216 In support of this threshold, Peel refers here to Voigt (n 55) 16, citing Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), (Provisional Measures) ITLOS Case No 3 and 4, (27 August 1999) ITLOS Rep 1999, 280.

217 For a consideration of climate change loss and damage see eg Pinninti, K, Climate Change Loss and Damage (Springer 2014).

218 See eg in the US, Mannington Mills, Inc. v  Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); and the Foreign Trade Antitrust Improvements Act of 1982, 15 USC section 6a (FTAIA.); in the EU Case T-102/96 Gencor Ltd v Commission, [1999] ECR II-753.

219 For an analysis of the ‘direct’ or ‘immediate and substantial’ effects threshold in antitrust law see Ryngaert (n 210) 59. Hertogen (n 46) 923 argues that there should not be a de minimis ‘quantity’ of effects required to establish jurisdiction, ‘as sovereign states should be able to decide whether the effects they are exposed to, however small, warrant a response’.

220 For support of this view see Bäuerle et al. (n 16) 85; Murphy (n 16) 19.

221 This approach therefore serves to help effectuate the protection of recognized community interests in international law which, as pointed out by Villalpando, continues to be ‘pursued through legal tools that were not, at their origins, elaborated for that purpose. See Villalpando, S, ‘The Legal Dimension of the International Community: How Community Interests Are Protected in International Law’ (2010) 21 EJIL 387, 410.

222 See Cottier et al. (n 22) 5 who argue that common concerns may form the ‘normative foundation and limits’ for unilateral acts with extraterritorial effects, but stress that such acts must still be ‘within the bounds of international law’. Kopela (n 106) 110 argues that ‘[t]he principle of common concern mitigates the unilateral aspect of such measures by focusing on their objective and benefits’.

223 See further 2006 ILC Report on Extraterritorial Jurisdiction (n 60) [522]; Kamminga (n 61) [14]; L Reydams, The Rise and Fall of Universal Jurisdiction KU Leuven Working Paper No 36 (2010) 7.

224 See further Ryngaert (n 20) 126; O'Keefe (n 68) 745.

225 For further discussion on the international judicial function in relation to recognized values see Sands, P, ‘“Unilateralism”, Values, and International Law’ (2000) 11 EJIL 291, 300.

226 See for normative discussion, Bodansky, D, ‘What's so Bad about Unilateral Action to Protect the Environment?’ (2000) 11 EJIL 339; Hartmann (n 11); Sands (n 225) 300–2.

227 The precise nature of ‘reasonableness’ as a limitation to the exercise of jurisdiction is a contested topic, which goes beyond the scope of the present contribution. This section limits itself to three generally accepted limitations to State action more generally. See further on reasonableness eg Lowenfeld, AF, ‘Sovereignty, Jurisdiction, and Reasonableness: A Reply to A. V. Lowe’ (1981) 75 AJIL 629; Maier, HG, ‘Interest Balancing and Extraterritorial Jurisdiction’ (1983) 31 AmJCompL 579; C Ryngaert (n 20) ch V.

228 See also North Sea Continental Shelf (Germany v Denmark) (Merits) [1969] ICJ Rep 3, 97.

229 See Regulation 2015/757 (n 7) rec 9: ‘According to data provided by the IMO, the specific energy consumption and CO2 emissions of ships could be reduced by up to 75 % by applying operational measures and implementing existing technologies; a significant part of those measures can be regarded as cost-effective and being such that they could offer net benefits to the sector, as the reduced fuel costs ensure the pay-back of any operational or investment costs.’

230 Executive Summary of the MRV Impact Assessment (n 84) 2.

231 ibid.

232 Bäuerle et al. (n 16) 86.

233 See for further analysis of CBDR and EU climate policy, Scott, J and Rajamani, L, ‘EU Climate Change Unilateralism’ (2012) 23 EJIL 469.

234 Regulation 2015/757 (n 7) rec 14.

The research which resulted in this publication has been funded by the European Research Council under the Starting Grant Scheme (Proposal 336230—UNIJURIS) and the Dutch Organization for Scientific Research under the VIDI Scheme (No 016.135.322).



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