Dr. Deva Prasad M.*
Keywords: CBDR – Chicago Convention – CORSIA – ICAO – UNFCCC
Introduction
International long-haul aviation activity results in significant amount of emissions, leading to dangerous levels of carbon footprints. Needless to say, this significantly high level of carbon emissions has to be controlled. Crafting an effective regulatory framework and institutional mechanism would require us to examine the present global governance mechanism. The global commons nature of climate change raises the question of who will bell the cat, thus, forming a wicked problem. This article provides an overview of shortcomings of the United Nations Framework Convention on Climate Change, 1992 (UNFCCC). The role and responsibility of International Civil Aviation Organisation (ICAO), the most significant international air law institutional mechanism, is highlighted along with the way forward.
Present problem
The gravity of the problem caused by the aviation sector’s carbon emissions could be better understood with the statistics, which stipulates that around 15 to 25 per cent of emissions could be traced back to aviation activities by the year 2050.[1] This problem is actuated by the fact that there are currently no scientific and “technological low-carbon alternatives” for aviation fuel and long-haul aviation activities.[2]
Considering that the hyperloop and other mobility solutions have not yet reached the proof-of-concept stage, the double-edged sword issue of lack of feasible technological alternatives and lack of proper regulatory framework for aviation-related carbon emissions continues to trouble the humanity. From the regulatory standpoint, the international law order needs realignment. The UNFCCC provides state-level responsibility to reduce carbon emissions from anthropogenic activities. The UNFCCC preamble clarifies that climate change is a common concern of humankind. It also stipulates that the sovereign States are supposed to enact effective “environmental legislation and environmental standards”. The States are supposed to ensure international cooperation in accordance with international law.
The UNFCCC does not address international aviation issues as sectoral carbon emission control is left to State environmental regulation. The Kyoto Protocol 1997, which talks about the Clean Development Mechanism (CDM) carbon trading mechanism, is also silent on the sectoral approaches, including the aviation sector. Even though the UNFCCC acknowledges that the aviation sector’s impact on climate change needs to be tackled as a framework convention mechanism, the sectoral approach and State responsibility must be tapped to make fresh grounds for mitigation action.[3] The UNFCCC mechanism also faces major challenges because the Kyoto Protocol has almost become obsolete. Moreover, the equity and common but differentiated principles under the UNFCCC also haven’t been able to deliver international cooperation as the developed countries have been shrugging away from their higher responsibilities.[4] Hence, problems such as carbon emissions from aviation sectors become embroiled in the regulatory gap.
Even though the members of the international community have placed an ambitious aim of zero carbon trajectory through the Paris Agreement of 2015, the national contributions towards carbon reduction are left to the States to decide. Hence, the Paris Agreement also, in principle, toes the line with the need for national regulations to deal with the sectoral problems.
The present format of addressing carbon emission as a State responsibility through an international convention could tackle the problem only on a partial basis. In this context, the European Union (EU) Member States have also taken the initiative to provide a clear solution using regional arrangements for a sectoral approach. The EU initiative could be considered as a major regulatory development. Academic articles in this regard have clarified that such measures would be considered legally relevant and in consonance with UNFCCC, Kyoto Protocol and international aviation law.
Does ICAO have responsibility?
In this regard, the relevance of international aviation law as a field could be analysed with the help of air law conventions and institutional mechanisms. Since the climate change laws have worked only on the concept of State responsibility to determine the sectoral cap for carbon emissions, lex specialis, like international air law, could take significant steps in this direction. The aviation sector is primarily governed by the International Civil Aviation Organisation (ICAO) based on the power vested with it through the Chicago Convention of 1944. As an institutional mechanism that has played a significant role in establishing international cooperation, the responsibility of ICAO needs to be analysed in relation to environmental impacts.
Does the ICAO, as an international institution, have an obligation to tackle climate change? Even though the Chicago Convention does not mention ICAO’s responsibility to tackle environmental issues, we can derive the responsibility based on the broader mandate of ICAO as provided in Article 44 of the Chicago Convention. ICAO is obligated to ensure “the safe and orderly growth of international civil aviation” as provided under Article 44(a) of the Chicago Convention. Moreover, as pointed out, the ICAO could be found to be taking steps to look into sectoral issues as have been highlighted by UNFCCC and Kyoto Protocol. A complementary step by way of ICAO’s initiatives to tackle climate change and carbon emissions would be helpful for a better global governance framework to evolve. For the sound and economic functioning of the aviation sector, which is also part of the objectives of ICAO as per the preamble to the Chicago Convention, it is relevant to note that the long-term sustainable operation of long-haul flights depends on strong steps to reduce carbon emissions.
How steps initiated by ICAO are ineffective?
Annex 16 of the Chicago Convention talks about environmental protection measures. This forms one of the major technical annexes to the Chicago Convention. Even though Annex 16 deals with environmental protection, the ICAO had not proactively committed to reducing the impact of climate change by effectively evolving technical standards on all aspects of civil aviation. Annex 16 focuses on the issues relating to noise pollution and local air pollution due to aircraft emissions. The requirement of comprehensively addressing the impact of emissions due to long-haul international flights and the need to deal with the environmental impact of aerodromes were neglected by ICAO. The scholarly observations have pointed out the factor of how the ICAO missed the opportunity to include and evolve guidelines pertaining to climate change impact in a comprehensive manner.
While assessing the institutional responsibility perspective of ICAO, the concept of role responsibility is relevant. According to this concept, ICAO needs to act and take proactive initiatives to reduce the impact of the aviation sector on climate change. However, ICAO has fallen short of discharging this obligation, which is detrimental to the core objective of sustainable civil aviation.
In furtherance of Annex 16, the ICAO Assembly undertook the initiative to declare its global commitment towards limiting carbon emissions from international aviation as a measure to tackle climate change in 2010. Moving forward, the ICAO Assembly agreed to the Carbon Offsetting Scheme for International Aviation (CORSIA) framework in 2016. This is considered as the most significant development in the context of regulatory action from ICAO to combat climate change.
However, CORSIA is not free from loopholes. Critics have often cited that ICAO has shown an immense lack of urgency in tackling the climate change problem. The academic literature also throws open the lack of support provided to the EU emission trading scheme pertaining to the aviation sector.[5] The current CORSIA policy is more of a carbon offsetting than a reduction scheme. Thus, the actual reduction in carbon emissions is being questioned. Moreover, the lack of legal backing for the Standards and Recommended Practices (SARPs) route through which this scheme is being proposed also raises eyebrows regarding the effectiveness of ICAO’s action. The lack of an effective approach to overseeing non-carbon-based emissions, which accelerates climate change, also needs pertinent attention. In this regard, it would also be relevant to note that environmental protection forms an important strategic objective of ICAO, and more proactive action could be expected in activities to reduce climate change impact due to aviation activities.
Analysing the way forward
As Rob Nixon points out the “slow violence concept”,[6] and states that the new perils of long-haul flights are mainly invisible. Hence, the strong urge for regulatory action has yet to be manifested. The success of the Montreal Protocol on Substances that Deplete the Ozone Layer 1987 should be understood as an excellent example for ICAO to emulate. The ICAO needs to understand that the long-term economic sustainability of the aviation sector hinges on the regulatory intervention of the ICAO.
At present, ICAO is taking a defensive approach regarding climate change mitigation. The lack of proactive steps needs to be called out. The ICAO Assembly and Council could be used as institutions for re-framing the debate on carbon emission reduction. Though a paradigm shift would be difficult, providing regulatory solutions such as enabling market-linked trading and other nudge mechanisms such as carbon tax/fee or funds for climate change adaptation and enabling technology transfer are feasible options. The fact that the International Court of Justice’s advisory opinion in the case of climate change, where the relevance of state obligation has been highlighted, also opens up the way for the UN specialised bodies to take similar advisory opinions to understand more specific sectoral specific responsibilities of the states. Seeking an advisory opinion for ICAO would go a long way in clarifying the extent of responsibility the aviation sector’s specialised UN body needs to consider.
ICAO needs to look at climate change issues more broadly by addressing non-CO2-based emissions, such as nitrous oxide, and their impact on climate change. The myopic approach could be revamped by understanding other dangerous emissions that could cause climate change, and tackling the same through ICAO’s regulatory architecture would be a major achievement in green aviation.
Applying established principles relating to climate change law, such as the precautionary principle and Common but Differentiated Responsibilities (CBDR), needs to evolve more granularly in the aviation sector. ICAO would benefit immensely from looking at the precautionary principle and how it would be required to change and adopt the aviation sector structurally. Major rehauling of the responsibilities of states would be required if CBDR were to be applied. The Unites States, EU, Japan and other developed countries need to take more carbon emission cuts and work towards shouldering financial and technology transfer arrangements so that other countries can move towards a sustainable aviation model. It is worth highlighting that equal opportunity is a factor mentioned in the Chicago Convention preamble, which needs to be considered by the ICAO in devising an action plan for climate change mitigation. In the proposed CORSIA –is the application of CBDR required for proactive measures from developed nations? This remains a question to be clarified.
ICAO needs to step-up cooperation amongst States and encourage state-level measures to battle the impact of climate change. Optimistically, sustainable aviation as a requirement needs to be well-acknowledged by ICAO, and the required regulatory changes may be envisaged. As emphatically mentioned by Richard Flak, a humane form of global governance is much required.[7]
* Author is an Associate Professor at IIM Kozhikode, Kerala.
References:
[1] Vasavi Thummala and Rahul Hiremath ‘Green Aviation in India: Airline’s Implementation for Achieving Sustainability’, Cleaner and Responsible Consumption, Vol. 7, 2022, p. 100082.
[2] Benoit Mayer and Zhuoqi Ding, ‘Climate Change Mitigation in the Aviation Sector: A Critical Overview of National and International Initiatives’, Transnational Environmental Law, Vol. 12, No.1, 2023, pp. 14 – 41 at p.16.
[3] Article 4 of the UNFCCC mentions the transport sector.
[4] Michal Kolmaš, ‘The Failure of CBDR in Global Environmental Politics’, Global Environmental Politics, Vol. 23, No. 1, 2023, pp. 9 – 11 at p. 10.
[5] Malte Petersen, ‘The Legality of the EU’s Stand‐Alone Approach to the Climate Impact of Aviation: The Express Role Given to the ICAO by the Kyoto Protocol’, Review of European Community & International Environmental Law, Vol. 17, No. 2, 2008, pp. 196 – 204 at p. 200.
[6] Rob Nixon, Slow Violence and the Environmentalism of the Poor, (Harvard University Press, 2011), p. 5.
[7] Richard Falk., ‘Humane Governance for the World: Reviving the Quest’. Review of International Political Economy, Vol. 7, No. 2, 2000, pp. 317 – 334 at p. 321.