JUNE 2014
  • Aviation and Climate Change: A Compelling Legal Challenge
    for a Toothless Tiger?

    Ruwantissa Abeyratne

Over the next three years, aviation would be facing its most daunting legal challenge — of developing a proposal for a global marketbased measure (MBM) to address aircraft engine emissions through the International Civil Aviation Organization. The issue of aviation and climate change has been wrought with contention and discord among the 191 member States of ICAO and the Organization failed to come up with any practical suggestion for a global MBM at its 38th session of the Assembly in 2013, after 3 years of plodding through various meetings and deliberations with States and International Organizations. This article addresses the legal and economic issues involved and suggests some measures that ICAO might wish to take.

Aircraft engine emissions; market-based measures; emissions trading; aviation and climate change; common but differentiated responsibilities; special circumstances and respective capabilities; ICAO.
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It is incontrovertible that climate change is the most compelling and contentious issue facing international aviation. The David Suzuki Foundation, in its official website says that “for a relatively small industry, aviation has a disproportionately large impact on the climate system. It presently accounts for 4–9% of the total climate change impact of human activity”. A Report published by the Federation of American Scientists for the Congressional Research Service in 2010 has stated that aircraft are a significant source of greenhouse gases (GHGs) — compounds that trap the sun’s heat, with effects on the Earth’s climate. In the United States, aircraft of all kinds are estimated to emit between 2.6 and 3.4 per cent of the nation’s total GHG emissions, depending on whether one counts international air travel. A Report titled “Predict and Decide”, published in 2006 by the Environmental Change Institute, University of Oxford said: “There is increasing recognition that aviation is a cause for concern in terms of its impact on climate. Yet, due to political difficulties in agreeing responsibilities, the emissions from international aviation (together with international shipping) were excluded from the Kyoto Protocol, and all related assessments. There is also a lack of clarity about how “bad” aviation is”.

As the specialized agency of the United Nations addressing issues of international civil aviation, the International Civil Aviation Organization (ICAO) was very active in the year 2013. With all its achievements of events planned and convened, meetings held, and assistance rendered to States, ICAO’s greatest challenge was to prepare for the 38th Session of the Assembly of its 191 membership a credible and plausible framework for market-based measures (MBMs) that could be applicable to aircraft engine emissions. At the end of the Assembly session in October 2013, ICAO issued a statement saying: “ICAO’s States agreed to report back in 2016 with a proposal for a global MBM scheme capable of being implemented by 2020. Major efforts will need to be undertaken in order to address the challenges and accommodate specific concerns of developing States going forward”.

There is no doubt that ICAO’s role is daunting, as acknowledged by ICAO. It has to balance several interests, both of developed States and developing States in carving out the proposal. The Assembly resolved that the proposal should be developed within the parameters of work carried out by States and relevant Organizations through ICAO to achieve a global annual average fuel efficiency improvement of 2 per cent until 2020 and an aspirational global fuel efficiency improvement rate of 2 per cent per annum from 2021 to 2050, calculated on the basis of volume of fuel used per revenue tonne kilometre (RTK) performed.

In 2013, at the 38th Session of the ICAO Assembly, things came to a head in the international aviation community where more than 170 member States and numerous international Organizations pledged to develop a global MBMs scheme at the next session of the Assembly in 2016. Both ICAO and the international aviation community had been kicking the can down the road for more than a decade. It was time for concrete action.

Not many, and certainly no one that I know in the aviation industry, has talked about anything other than the effects economic measures taken to counter the growing threat of climate change on the developmental progress of their country. Often, the larger picture that portends the devastation climate change would bring the world is shrouded in polemics on equity based on the right to development. This trend has obfuscated the catastrophe facing mankind, not only in terms of rising sea levels, skinny polar bears and parched wheat fields, but also in the threat to human life as a result of an increasingly warming planet. The World Health Organization has come up with the fact that, over the past 30 years, 150,000 people have died annually as a result of global warming.

Yet, with all these revelations and incontrovertible facts, the debate on aircraft engine emissions and what to do about them remain an exclusively economic issue based on pollution as a by-product of development. This article addresses the complexities, sensibilities and possibilities of developing a global MBM scheme.