On 15 December 1972 the United Nations General Assembly adopted Resolution A 2994 which designated 5 June as World Environment Day and urged Governments and the organizations in the United Nations system to undertake on that day every year world-wide activities reaffirming their concern for the preservation and enhancement of the environment with a view to deepening environmental awareness. One has to remember that this was a time when neither the aviation industry nor the shipping industry had even imagined that their respective transportation systems would be considered as culprits polluting the environment. This was a time where the only concern was “acid rain” and the time where the only two instruments that pertained to the preservation of the environment were the United Nations Environment Programme and the Declaration of the United Nations Conference on the Human Environment which was signed at the Stockholm Conference of 1972.
It’s been more than 50 years since then and much has happened. Back then, one thought that the environment would remain the same if we interfered with it as little as possible and that the specter of climate change would never loom over us, much less threaten the existence of coastal States. We have had to think again, with the coining of the word “Anthropocene” as the age when homo sapiens, from the mid 20th century, became responsible for the degradation of the ecosystem.
The damage that could be caused by aircraft engine emissions did not actively enter the minds of members of the Council of the International Civil Aviation Organization (ICAO) until 1997 when ICAO was compelled to start working on the climate change impacts of emissions after it was given a mandate by the United Nations Framework Convention on Climate Change through the Kyoto Protocol. However, it was not until 2015 that the ICAO Council adopted a formal Declaration on International Aviation and Climate Change, stating its commitment to a basket of measures to improve aviation’s environmental performance, including a global market-based measure scheme for international aviation from 2020.
For nearly 10 years, ICAO has been concentrating on developing a global market-based measure. At its 38th Session in 2013, the ICAO Assembly adopted a Resolution which required its member States to come up at the next Assembly (in 2016) with proposals for a global market-based measure. The end result, which attained fruition in 2019 at the 40th Session of the Assembly, is called CORSIA – Carbon Offsetting and Reduction Scheme for International Aviation.
At the latest session of the ICAO Assembly – its 41st Session, held from September 27 to October 7, 2022, two relevant Resolutions were adopted.
The first was Resolution A41-21, Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection – Climate Change, which confirmed, inter alia, ICAO’s continuous leadership in limiting or reducing its emissions that contribute to global climate change and reemphasized the vital role that international aviation plays in global economic and social development, and the need to ensure that international aviation continues to develop in a sustainable manner. The Resolution also acknowledged that the work of ICAO on the environment contributes to 14 of the 17 United Nations Sustainable Development Goals (SDGs), including SDG 13 – Take Urgent Action to Combat Climate Change and its Impacts. States were encouraged to submit and update voluntary action plans to ICAO to reduce CO2 emissions from international aviation, outlining their respective policies, actions, and roadmaps, including long-term projections. States that choose to prepare or update action plans were invited to submit them to ICAO as soon as possible, preferably by the end of June 2024 and once every three years thereafter, so that ICAO could continue to compile the quantified information in relation to achieving the global aspirational goals. The action plans should include information on the basket of measures considered by States, reflecting respective national capacities and circumstances, quantified information on the expected environmental benefits from the implementation of the measures chosen from the basket, and information on any specific assistance needs for the implementation of the measures.
The second Resolution adopted by the Assembly was Resolution A41-22: Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection – Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). This Resolution recalls Assembly Resolution A38-18, which resolved to develop a global market-based measure (GMBM) scheme for international aviation, for decision by the 39th Session of the Assembly, and recalls the fact that Resolution A38-18 requested the Council, with the support of member States, to identify the major issues and problems, including for member States, and make a recommendations on a GMBM scheme that appropriately addresses them and key design elements, including a means to take into account special circumstances and respective capabilities, and the mechanisms for the implementation of the scheme from 2020 as part of a basket of measures, which also include technologies, operational improvements, and sustainable aviation fuels to achieve ICAO’s global aspirational goals.
The above discussion has one common theme as reflected in the two ICAO Resolutions and the submissions of States in the working papers they submitted at the ICAO Assembly: there has to be a more efficiently implemented CORSIA. This theme is dependent on the State Action Plans (SAPs) of States and how they are credibly implemented in accordance with the common but differentiated responsibilities of States as well as their individual capabilities. Implementation of CORSIA through the ICAO Resolutions and the Standards and Recommended Practices (SARPs) of Annex 16, Part IV to the Chicago Convention (on CORSIA) would be rendered destitute of any effect unless there is a strong global mechanism of compliance. In the current context, while ICAO Resolutions are merely the outcome of political compromises where States are free to record their reservations, SARPs are discretionary at best, bringing to bear the legislative impotence of the CORSIA framework. It would have been more desirable if the core principles were to be contained in mandatory rules of compliance. In the least, there must be a process of legalization of SARPs that is strongly incorporated and entrenched in the legislative structure of a State in its rule of law for effective implementation.