Abstract
As a specialized agency of the United Nations, ICAO draws its legitimacy from the United Nations and any treaty or other agreement or arrangement that ICAO develops containing a global market based measure would have to accord with the meaning and purpose of the United Nations. It is for this reason that the previous chapter on the development of international law and the United Nations becomes essential background material for this study.
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Notes
- 1.
United Nations Conference on the Human Environment, Stokholm, 1972. See UN. Doc. A/CONF.48/14 June 1972, reprinted in 11 ILM 1416 (1972).
- 2.
3 RIAA 1905 (1941).
- 3.
1996 ICJ 226.
- 4.
Id. paragraph 29. In the celebrated Corfu Channel case which involved the liability of Albania for mine-layering in her international waters which caused space damage to British mine sweepers, the Court held:
These grave omissions involve the international responsibility of Albania. The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred … and for the damage and loss of human life which resulted from them. See ICJ Reports (1949) at p. 23.
- 5.
Barcelona Traction, Light and Power Company Limited, I.C.J. Reports, 1974, 253 at 269–270.
- 6.
Yearbook of International Law Commission 1976, Vol II, Part One at 29.
- 7.
I.C.J. Reports, 1970 at 32.
- 8.
In Re. Chorzow Factory (Jurisdiction) Case, (1927) PCIJ, Ser. A, no. 9 at 21.
- 9.
ICJ Reports (1949), 4 at 23.
- 10.
Report of the International Law Commission to the General Assembly on the Work of the 1st Session, A/CN.4/13, June 9 1949, at 21.
- 11.
United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, 3–14 June 1992 See UN Doc.A/CONF.151/26, reprinted in 31 ILM 874 (1992). It must be mentioned that in the 1980s the UN set up the World Commission on Environment and Development, also called the Brundtland Commission. They produced “Our Common Future”, otherwise known as the Brundtland Report, which framed much of what would become the 40 chapters of Agenda 21 and the 27 principles of the Rio Declaration on Environment and Development. It defined sustainable development as development which; “meets the needs of present generations without compromising the ability of future generations to meet their own needs”.
- 12.
The United Nations Commission on Sustainable Development (CSD) was established by the UN General Assembly in December 1992 to ensure effective follow-up of United Nations Conference on Environment and Development UNCED, also known as the Earth Summit. The Commission is responsible for reviewing progress in the implementation of Agenda 21 and the Rio Declaration; as well as providing policy guidance to follow up the Johannesburg Plan of Implementation (JPOI) at the local, national, regional and international levels. The JPOI reaffirmed that the CSD is the high-level forum for sustainable development within the United Nations system.
- 13.
Atapattu, supra, note 50 at 9.
- 14.
The IPCC is a scientific intergovernmental body set up by the World Meteorological Organization (WMO) and by the United Nations Environment Programme (UNEP). The IPCC was established to provide the decision-makers and others interested in climate change with an objective source of information about climate change. The IPCC does not conduct any research nor does it monitor climate related data or parameters. Its role is to assess on a comprehensive, objective, open and transparent basis the latest scientific, technical and socio-economic literature produced worldwide relevant to the understanding of the risk of human-induced climate change, its observed and projected impacts and options for adaptation and mitigation. IPCC reports should be neutral with respect to policy, although they need to deal objectively with policy relevant scientific, technical and socio economic factors. They should be of high scientific and technical standards, and aim to reflect a range of views, expertise and wide geographical coverage.
- 15.
The Vienna Convention for the Protection of the Ozone Layer (1985) outlines States' responsibilities for protecting human health and the environment against the adverse effects of ozone depletion, establishes the framework under which the Montreal Protocol was negotiated, created a general obligation for nations to take appropriate measures to protect the ozone layer and a process by which regulations could be created by the governments of countries to establish control measures. The Convention also established a mechanism for international cooperation in research, monitoring, and exchange of data on the state of the stratospheric ozone layer and on emissions and concentrations of CFCs and other relevant chemicals. Most importantly, the Vienna Convention established the framework for a future protocol—the Montreal Protocol on Substances that Deplete the Ozone Layer. The Montreal Protocol on Substances that Deplete the Ozone Layer is a landmark international agreement designed to protect the stratospheric ozone layer. The treaty was originally signed in 1987 and substantially amended in 1990 and 1992. The Montreal Protocol stipulates that the production and consumption of compounds that deplete ozone in the stratosphere—chlorofluorocarbons (CFCs), halons, carbon tetrachloride, and methyl chloroform—are to be phased out by 2000 (2005 for methyl chloroform). Scientific theory and evidence suggest that, once emitted to the atmosphere, these compounds could significantly deplete the stratospheric ozone layer that shields the planet from damaging UV-B radiation. The United Nations Environment Programme (UNEP) has prepared a Montreal Protocol Handbook that provides additional detail and explanation of the provisions.
- 16.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944, ICAO Doc 7300./9: 2006.
- 17.
Article 9.
- 18.
Article 44(a).
- 19.
Article 44(d).
- 20.
Article 44(n).
- 21.
Article 44(i).
- 22.
Article 37(b).
- 23.
See Airport Planning Manual Doc 9184—AN 902 Part 2, 13.2.
- 24.
Id. 2.1.3.
- 25.
Id. 2.2.1.
- 26.
Id. 2.4.1.
- 27.
Id. 2.5.2.
- 28.
Id. 4.3.1.
- 29.
Id. 2.6.1.
- 30.
See Assembly Resolutions in Force (as of 6 October 1989), ICAO Doc 9558 at II-18.
- 31.
For more details on CAEP see Mortimer (1992).
- 32.
UNEP/GC.18/27, 21 March 1995.
- 33.
See United Nations General Assembly Resolution 55/199.
- 34.
For the text of the Declaration see Johannesburg Declaration on Sustainable Development (2002).
- 35.
See World Summit on Sustainable Development Plan of Implementation, (2002), http://www.johannesburgsummit.org/html/documents/summit_docs/2309_planfinal.pdf.
- 36.
At its 5th Session in September 2000, the United Nations adopted Resolution A55/2—United Nations Millennium Declaration—which recognizes that States have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level, notwithstanding their separate responsibilities. The Resolution reaffirmed States’ commitment to the United Nations Charter and its relevance and capacity to inspire nations and peoples. The Resolution, inter alia called for shared responsibility for managing worldwide economic and social development.
- 37.
ICAO’s policies on taxes and charges are contained in Doc 8632. These policies recommend, inter alia, the reciprocal exemption from all taxes levied on fuel taken on board by aircraft in connection with international air services, and reduction, to the fullest possible extent or elimination of taxes related to the sale or use of international air transport.
- 38.
- 39.
Kyoto Protocol to the United Nations Framework Convention on Climate change, UN Doc. FCCC/CP/1997/L.7/Add.1.
- 40.
Carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride.
- 41.
UN Environment Programme (UNEP) Press Release, 11 Dec 1997.
- 42.
The subject of emissions-trading falls within the purview of the Intergovernmental Panel on Climate Change (IPCC), which was established in 1988 by the World Meteorological Organization and the United Nations’ Environment Programme (UNEP) to assess the scientific basis and impact of climate change. The IPCC’s first scientific report was published in 1990 and recommended the negotiation of a framework convention to combat global warming. The United Nations Framework Convention on Climate Change (UNFCCC) was adopted on 9 May 1992 and the treaty entered into force on 21 March 1994. This article, being a legal one, will not address details of these bodies. For an extensive treatment of the IPCC’s work and the UNFCC, see Global Warming and the Kyoto Protocol, Colin Warbrick and Dominic McGoldric ed., 47 ICLQ, April 1998 at pp. 446–462.
- 43.
The Protocol will enter into force 90 days after “not less than 55 Parties to the [Climate Change] Convention, incorporating Parties included in Annex 1 which accounted in total for at least 55 % of the total carbon dioxide emissions for 1990 of the Parties included in Annex 1” have ratified (Art. 24 of the Protocol).
- 44.
Id., Art. 7 (1). The Secretariat is located in Bonn, Germany. Its postal address is P.O. Box 260 124, D-53153, Bonn, Germany.
- 45.
Id., Art. 8 (1).
- 46.
Id., Art. 8 (5). When the Conference of the Parties meets as the meeting of Parties to the Protocol, those States that are party to the Convention but not to the Protocol may participate but only as non-voting observers (idem, Art. 13 (1) and (2)). Parties to the Protocol will meet annually (Art. 13 (6)) to review the implementation of the Protocol (Art. 13 (4)).
- 47.
Id., Art. 8 (6).
- 48.
Supra, see note 91.
- 49.
See Article 12 (3) of the Kyoto Protocol.
- 50.
Article 8 of the Protocol.
- 51.
Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 I.L.M. 1550. The Montreal Protocol controls gases such as chlorofluorocarbons, which not only have ozone depleting characteristics but also contribute to the greenhouse effect. The Kyoto Protocol has, by explicitly excluding the Montreal Protocol’s role in ICAO’s mandate, has included carbon dioxide, nitrogen oxides and compounds of sulphur emissions within ICAO’s purview.
- 52.
As contained in Doc 9082 (Statements by the Council to Contracting States on Charges for Airports and Air Navigation Services) and Doc 8632 (ICAO' Policies on Taxation in the Field of International Air Transport).
- 53.
UNEP, 1988 Annual Report of the Executive Director, UN Doc UNEP/GC. 15/4 (1989) at p. 54.
- 54.
UNEP/GCSS. 1/7/add.1 (Nairobi, 1988) at p. 91.
- 55.
Id. Article 44 (d).
- 56.
Id. Article 44 (i).
- 57.
Article 15, inter alia, generally requires that any charges that may be imposed or permitted to be imposed by a Contracting State for the use of airports and air navigation facilities by aircraft shall not be higher than those that are payable by national aircraft of the State imposing such charges.
- 58.
ICAO’s policies on taxes and charges are contained in Doc 8632. These policies recommend, inter alia, the reciprocal exemption from all taxes levied on fuel taken on board by aircraft in connection with international air services, and reduction, to the fullest possible extent or elimination of taxes related to the sale or use of international air transport.
- 59.
ICAO is the specialized agency of the United Nations handling issues of international civil aviation. ICAO was established by the Convention on International Civil Aviation, signed at Chicago on 7 December 1944 (Chicago Convention). The overarching objectives of ICAO, as contained in Article 44 of the Convention is to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to meet the needs of the peoples for safe, regular, efficient and economical air transport. ICAO has 190 member States, who become members of ICAO by ratifying or otherwise issuing notice of adherence to the Chicago Convention.
- 60.
Id. Article 43.
- 61.
Max Hymans, President of the Second ICAO Assembly observed in 1948 that the standardization of equipment and procedures had progressed well and that ICAO had an incontestable authority in this respect. See Hymens (1948).
- 62.
See ICAO Doc 6968, A4-P/1 Report of the Council to the Assembly on the Activities of the Organization in 1949, 23 March 1950.
- 63.
Id. A4-P/1 23/3/50 at 1.
- 64.
Id. 2.
- 65.
ICAO Annual Report of the Council—2007 A-1.
- 66.
In January 2007, the Single Aviation Market of the European Union (EU) was expanded from 25 to 27 States with the addition of Bulgaria and Romania; in February, the Association of South-East Asian Nations (ASEAN) further liberalized the Memorandum of Understanding on Air Freight Services originally signed in 2002. Also in February, the Agreement on the Liberalization of Air Transport between the Arab States came into force, initially for five Arab League States; and in October, the Pacific Islands Air Services Agreement came into force, initially for six Member States of the Pacific Islands Forum.
- 67.
Air transport liberalization also continued to develop at the national level as well. In November 2007, the Government of Japan liberalized access of foreign airlines to 23 regional airports in order to strengthen the country’s position as a gateway for international traffic. In the same month, Pakistan adopted a new national aviation policy to further liberalize the air transport sector, including an “open skies” policy for cargo operations. The increase in mergers and the steady expansion of alliances, involving especially the three global groupings (Star Alliance, Oneworld, and SkyTeam), continued to attract attention from regulatory authorities. In February, the United States Department of Transportation (DOT) approved the application for antitrust immunity for an alliance agreement among nine airlines of Star Alliance. In October, the European Commission published commitments submitted by eight airlines of SkyTeam, a condition for obtaining approval for their alliance.
- 68.
The total scheduled traffic carried by the airlines of the 190 Contracting States of ICAO amounted to approximately 2,250 million passengers and some 41 million t of freight. The overall passenger/freight/mail tonne-kilometres performed increased some 5.5 % over 2006, with international tonne-kilometres at about 5.8 %. The growth in passenger traffic generally outpaced seat capacity offered. As a result, the average passenger load factor on total scheduled services (domestic and international) went up to 77 %, compared to 76 % in 2006. See ICAO Annual Report of the Council—2007, supra note 123, A-3.
- 69.
Strong growth rates across all regions for international passenger traffic continued in 2007, although globally at a marginally lower rate of 7.3 % compared to 7.6 % in 2006. The breakdown in terms of percentage of total traffic carried and of growth rates for carriers is as follows: Europe, 40 and 6.4; Asia/Pacific, 28 and 6.6; North America, 17 and 5.5; Middle East, 8 and almost 19; Latin America and Africa, 7, and 5.8 (Latin America) and 6.8 (Africa).
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Abeyratne, R. (2014). General Principles of Environmental Law and Regulation. In: Aviation and Climate Change. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-08443-5_2
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