Aviation legal experts propose an incremental approach in reaching a global sectoral agreement on emissions

Aviation legal experts propose an incremental approach in reaching a global sectoral agreement on emissions | Brian Havel,Gabriel Sanchez

Fri 16 Sept 2011 – Rather than attempting a ‘big bang’ solution in reaching a global aviation sectoral agreement on reducing international aviation emissions, an incremental approach involving collaboration between like-minded states is likely to offer the most feasible route. So argue two international air law experts, Brian Havel and Gabriel Sanchez, in a new paper ‘Toward a Global Aviation Emissions Agreement’. The two authors advocate a multilateral, consensual, sectoralised and incremental emissions treaty, created outside the International Civil Aviation Organisation (ICAO) but compliant with ICAO benchmarks. The paper also examines in detail legal arguments to show that Europe’s Emissions Trading Scheme (EU ETS) falls foul of a number of key articles forming the international civil aviation treaty, the Chicago Convention.


“Our central aim of the article is to propose a sectoralised treaty to reduce the emissions produced by international civil aviation which is both feasible and normatively desirable,” Sanchez told GreenAir Online. “It is our contention that the support for emissions reduction in this sector from government leaders and industry stakeholders indicates an opportune alignment of political will for a sector-specific approach. However, we are mindful also of Realpolitik.”


Despite the air of gloom over prospects on the wider stage for a global climate agreement past Kyoto, Sanchez believes the exceptional status of international aviation, both historically and under the UN Framework Convention for Climate Change (UNFCC), is an opportunity to transcend the limitations of the UNFCCC and to envision a truly radical project of global governance. “Such an approach, in turn, can demonstrate that collaborative projects for strong global governance are not doomed to endless stalemate,” he said.


The authors note that although Article 2(2) of the Kyoto Protocol mandates that developed states are to pursue limitation or reduction of aviation greenhouse gases through ICAO, neither ICAO nor any of its member states now sees the organization as the sole or exclusive agency for international aviation emissions control.


The Resolution on international aviation emissions adopted at last October’s ICAO Assembly sets out a series of ‘Guiding Principles’ for the imposition of both bilateral or multilateral market-based measures (MBMs), such as emissions trading.


“Their adoption suggests that the member states have now denied ICAO whatever mantle of exclusivity it could claim from the terms of the Kyoto Protocol,” say Havel/Sanchez in the paper. “Kyoto summoned only a select number of its signatories to “work through” ICAO, without providing further details on what this summons might mean in practice.


“Presumably, so long as the Protocol’s parties do not venture beyond ICAO’s mandates as listed in the Chicago Convention and expressed through Assembly Resolutions, there would be no conflict if two states, certain clusters of states, or even all of the ICAO member states were to negotiate an emissions reduction treaty outside the Organisation’s auspices.”


The two authors put forward the landmark 2007 bilateral US/EU Air Transport Agreement as the cornerpost of a new regulatory system for international aviation upon which a sector-wide emissions reduction approach could be built by states. They say that despite sharp divides, US and EU negotiators managed to conclude their treaty that scrapped decades of restrictions on the exchange of air traffic rights between their two jurisdictions, with the agreement going on to do much more, contemplating regulatory convergence in areas such as security, safety, competition and the environment.


In an amending protocol to the Agreement signed in 2010, the negotiators stated their “intention to work together to limit or reduce, in an economically reasonable manner, the impact of international aviation on the environment.”


The parties also affirmed their openness to working through the Joint Committee “to develop recommendations that address issues of possible overlap between and consistency among [MBMs] regarding aviation emissions implemented by [them] with a view to avoiding duplication of measures and costs and reducing to the extent possible the administrative burden on the airlines.” Finally, the Joint Committee remains charged with “fostering expert-level exchanges on new legislative or regulatory initiatives and developments … in the field of … the environment[.]”


Havel/Sanchez say that with 60% of global air traffic movements occurring within and between these two blocs, a bilateral emissions reduction treaty arranged within the structure of the 2007 Agreement would be powerful. They also point out that the trade concessions delivered in the Agreement are available to third party states so that it functions as a plurilateral treaty. Two non-EU countries, Iceland and Norway, acceded to the Agreement in 2009.


Although there would be sizeable geographical gaps to begin with, the authors argue that the enticement of a liberal air services trade environment could generate substantial incremental market benefits for the airlines of countries such as China, India and the United Arab Emirates. “While major markets like China and Russia may last some time as outliers, principled obstinacy is unlikely to trump new market opportunities indefinitely,” they argue.


The authors accept that the current row between the EU and US over the EU ETS, and the lack of momentum on US climate change policy, are not conducive to their proposal but they believe US policymakers remain oriented towards finding a consensual international response to aviation emissions reduction.


“We don’t make any predictions that the US and EU will collaborate in the near future, only that the 2007 Air Transport Agreement provides the machinery for such collaboration,” says Sanchez.


“Even though this isn’t central to the paper, we are sceptical that any meaningful aviation emissions agreement can move forward without participation from the United States. An aviation emissions agreement between, say, the EU and Australia, is unlikely to carry much weight in the international arena.


“It’s not logically impossible that a year from now, or five years from now, the international community will come together to forge a comprehensive climate change treaty with robust emissions-reduction terms. For reasons we go into in the paper, we share in the grave doubts of other sceptics that such an agreement is feasible – at least for the foreseeable future.


“Our intention is to show a way around this problem by relying on the overlapping consensus and institutional/legal mechanisms already in place for civil aviation. Admittedly, it’s an ambitious suggestion, but we hope it will cut through the defeatism which plagues a great deal of the legal literature on international climate change issues.”


Havel/Sanchez devote a sizeable chunk of their paper to look at the Chicago Convention and its application to aviation emissions reduction. They contend that by unilaterally applying the EU ETS to non-EU carriers infringes international sovereignty. They also argue that by not ring-fencing auction revenues from foreign airlines for civil aviation purposes (such as air navigation and airport services – although emissions mitigation could be regarded as a legitimate charge, they say) is an infringement of Article 15.


However, Sanchez does not believe the case put by the US airlines at the Court of Justice of the European Union (ECJ) that their inclusion in the EU ETS is illegal under international and customary law will succeed.


“There is too much at stake politically and, if past history proves anything, the ECJ is likely to take a permissive attitude toward the European Commission’s desire to regulate airline emissions,” he says. “The one issue to keep an eye on is the assertion that it is the individual member states, not the European Union, which are parties to the Chicago Convention. As a technical matter of law, this is true and it may be enough to prompt the ECJ to dismiss all of the airlines’ claims which arise under the Convention.


“At that point, the United States – and other aggrieved countries – will have to seek a resolution to the Chicago Convention issues through the dispute settlement machinery of ICAO. There’s no telling how long that could take or if such action would even be enough to stay the EU’s regulatory hand.”


He also does not consider the proposed bill (H.R. 2594), currently passing through the US House of Representatives, prohibiting US airlines from joining the EU ETS will have any immediate impact on whether or not the EU moves forward with scheme. “Its utility lies in the fact that it sends a strong political signal that US lawmakers are dissatisfied with the ETS and may be willing to take further legislative action unless the EU reaches a compromise with the US State Department and the Department of Transportation.


“Also, by prohibiting US airlines from participating in the ETS, the legislative proposal is attempting to ensure a concentrated opposition to the regulation. It also puts the EU in the uncomfortable position of having to ban all US airlines from entering and exiting its territory if they don’t participate in the ETS.”


Professor Havel and Gabriel Sanchez are based at the International Aviation Law Institute at DePaul University College of Law in Chicago. A final version of their paper will be published by the Harvard Environmental Law Review during the current academic year.




Havel/Sanchez ‘Toward a Global Aviation Emissions Agreement’

(PDF of paper can be downloaded in full by clicking One-Click Download)

International Aviation Law Institute at DePaul University College of Law




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