ICAO has to be commended for its tenacity over the years for attempting the difficult task of obtaining worldwide support for its scheme. However, some concerns still remain.
by Dr. Ruwantissa Abeyratne
( November 1, 2016, Montreal, Sri Lanka Guardian) It is scientifically recognized that the emission of greenhouse gases into the atmosphere creates a condition of what is called the “greenhouse effect” which in turn causes global warming. These greenhouse gases are water vapour, carbon dioxide, methane, nitrous oxide and ozone. Of these, the primary concern for aircraft is carbon dioxide which is considered to cause 2% of the entirety of the globe’s carbon dioxide emissions. It is said that if aircraft emissions go unchecked this figure could go up to 20% over the next 10 to 20 years.
Part of the reason for this surge in aircraft engine emissions could be the proliferation of air traffic expected over the next 15 years. As it is, every day, 100,000 aircraft take off all over the planet, which saw 3.5 billion passengers being carried globally in 2015, which would escalate to 7.2 billion by 2035. Last year, there were 34 million aircraft landings around the world and it is estimated that by 2030 the world would have 24,900 new aircraft added on to whatever fleet that would exist then.
In the context of air transport, the world is rapidly moving from a “predict and provide” approach to a “predict and plan” approach, one of the results of which is to seek an economic instrument to control the rate of aircraft engine emissions as aviation’s contribution towards halting global warming.
The 39th Assembly of the International Civil Aviation Organization (ICAO), held from 27 September to 7 October 2016 adopted by consensus Resolution A39-3 – a Resolution on a Global Market Based Measure (GMBM) to address and mitigate the effects of aircraft engine emissions on the environment. According to the Resolution, a GMBM scheme would be implemented in the form of a Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) to address any annual increase in total CO2 emissions from international civil aviation (i.e. civil aviation flights that depart in one country and arrive in a different country) above 2020 levels, taking into account Special Circumstances and Respective Capabilities (SCRC) of States. CORSIA would be implemented in three phases while accommodating SCRC, in particular of developing States, while at the same time minimizing market distortion. The Resolution was in response to a specification in Resolution A38-18 adopted at the Assembly three years earlier which required the ICAO Assembly in 2016 to develop a GMBM scheme. It took six years, from the 37th Assembly in 2010 (which required the Council to explore the feasibility and modalities of an GMBM scheme) to the 39th Session in 2016 for ICAO to come up with a scheme, which, until 2024 would be a voluntary pilot scheme that would not be an active GMBM. Thereafter, through 2027 the scheme would still be voluntary and semi experimental. In the meanwhile, pollution caused by engine emissions would exponentially grow over the next 10 years.
At the Assembly in September/October, The Council of ICAO (consisting of 36 elected member States) pointed out that a trend analysis had revealed that international aviation consumed approximately 142 metric tons (Mt) of fuel in 2010. By 2040, it was expected that despite an anticipated increase of 4.2 times in international air traffic, fuel consumption was projected to increase by only 2.8 to 3.9 times over the same period. It was estimated that up to 2 per cent of this fuel consumption could consist of sustainable alternative fuels in 2020, but significant uncertainties exist in predicting the contribution of sustainable alternative fuels in the long-term.
Several States entreated the Assembly (made of the 191 ICAO member States) to endorse and support the development of a broad range of policy measures under a ‘comprehensive approach’ to effectively address environmental impacts from the aviation sector. These States were of the view that the adoption of a long term objective should be considered following the initiative taken by the international aviation industry for a 2050 target in the context of the global climate goals. The International Air Transport Association (IATA) stated that a global carbon offsetting scheme for international aviation was intended to be a complementary and temporary emissions gap-filler in addition to the basket of measures available to the sector. It was not intended to replace efforts to improve fuel efficiency through new technology and improved operational and infrastructure measures. Nor would the scheme make fuel efficiency any less of a day-to-day priority for operators. IATA also joined several other international organizations in identifying four features that should define a GMBM: It should not be designed or used to raise general revenues or to suppress demand for air travel; it must be global in scope and preserve fair competition; it must avoid adoption of unilateral measures which would create an unsustainable regulatory patchwork, leading to increased complexity, cost and market distortion; and it should be simple to administer, with each operator only reporting its emissions to one State.
Resolution A39-3 has CORSIA introducing a carbon offsetting scheme in three phases: a pilot phase from 2021 through 2023, calculated on 100% sectoral and 0% individual, though each participating State may choose during this pilot phase whether to apply this to: an aircraft operator’s emissions covered by CORSIA in a given year, as stated above, or an aircraft operator’s emissions covered by CORSIA in 2020.
The first phase which would be from 2024 through 2026 includes States that voluntarily participate in the pilot phase, as well as any other States that volunteer to participate in this phase. The second phase would apply from 2027 through 2035 to all States that have an individual share of international aviation activities in Revenue Tonne Kilometres (RTKs) in year 2018 above 0.5 per cent of total RTKs or whose cumulative share in the list of States from the highest to the lowest amount of RTKs reaches 90 per cent of total RTKs, except Least Developed Countries (LDCs), Small Island Developing States (SIDS) and Landlocked Developing Countries (LLDCs) unless they volunteer to participate in this phase.
The Council of ICAO is charged with a periodic review of the CORSIA which would be up for consideration by the Assembly, every three years from 2022, which would consist of assessment of: progress towards achieving ICAO’s global aspirational goal.
ICAO has to be commended for its tenacity over the years for attempting the difficult task of obtaining worldwide support for its scheme. However, some concerns still remain. Firstly, it is widely accepted by international lawyers that a resolution of the United Nations or any of its member states is nothing but the result of political consensus to which no legal legitimacy or thrust could be ascribed. Secondly, the GMBM scheme is a temporary one which would be inactive until 2021 and thereafter would be voluntary. There is no mandatory element in the scheme.
Thirdly, by 2020 it would be 10 years since ICAO embarked on its work on a GMBM and still it would only be at the start of the voluntary pilot phase. The Washington Post reports that by then the climatic tipping point would have started in in Manokwari, Indonesia; by 2023 in Kingston, in the Caribbean; by 2029 in Lagos; by 2047 in Washington; by 2066 in Reykjavik; and by 2071 in Anchorage, Alaska. A Pacific Northwest National Laboratory (PNNL) study reports: “by 2020, human-caused warming will move the Earth’s climate system into a regime in terms of multi-decadal rates of change that are unprecedented for at least the past 1,000 years. All scientific indications are that climate change would bring significant adverse effects on the world in 2020 onwards and that the rate of climate change, which has risen sharply in recent decades, will soar by the 2020s. Fourthly, what is ultimately envisioned in the implementation of CORSIA are Standards and Recommended Practices (SARPs) which States are not obligated to follow.
It would only be in 2027 (17 years after ICAO earnestly started working on a GMBM) that the semblance of a mandatory element would kick in on the carbon offsetting scheme as envisioned in the Resolution. In the meanwhile, some questions would have to be answered. For instance: why wait for another 10 years (from 2017) or more for a mandatory system of participation by States and for timely, accurate and transparent reporting of emissions data and emissions units surrendered to be put in place?; who is the entity or entities responsible for reviewing emissions and surrendered emissions unit data that has the legal, financial and human resources needed to hold participants accountable for compliance?; is there a suitable venue for resolving disputes over compliance?; and what are the financial penalties that exceed the cost of compliance with the GMBM, including enhancements for false or fraudulent data reporting?
The above notwithstanding, ICAO has to be lauded for its tireless efforts over the years. Obtaining some form of global consensus on such a contentious issue is indeed a reckonable feat. At least it is better than nothing.
The author is former Senior Legal Officer at the International Civil Aviation Organization. He is the author of three books on the subject: Aviation and The Environment; Aviation and The Carbon Trade; and Aviation and Climate Change together with numerous law journal articles on the legalities concerned with aviation and climate change.