Abstract
Climate change is no longer a theory and has fast become an unequivocal reality and a defining issue of our time. Its enormity can be identified numerically. For instance 2005 was the warmest year on record. There has been a 33% rise in global carbon dioxide emissions since 1987. The Inter-Governmental Panel on Climate Change (IPCC) records that 5 million extra people are at risk of hunger by the year 2020 if climate change continues unabated. The 2003 heat wave killed 35,000 people in Europe. Environmental campaigner Sheila Watt-Cloutier, in her article “A Human Issue” in the May 2007 issue of “Our Planet” – the magazine of the United Nations Environment Programme, says that there are palpable signs of drastic climate change in the Arctic, which she calls the health barometer for the planet. Whatever happens in the world occurs first in the Arctic – the home of Inuit. In 2004 certain conclusions were reached by the Arctic Climate Impact Assessment (ACIA) as a result of work carried out by 300 scientists from 15 countries. Among the results, according to Watt-Cloutier, is that for Inuit, warming is likely to disrupt or even destroy their hunting and food-sharing culture as reduced sea ice causes populations to decline or become extinct. The Inuit have lived in the arctic for thousands of years and their culture and economy reflect their homeland. Climate change in the arctic would therefore infringe the basic human right of the Inuit to life.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Flying Smart, Thinking Big, Airbus Industrie’s Global Market Forecast, 2009–2028, at 16.
- 2.
Ibid.
- 3.
See ICAO Doc CAAF/09-WP/23, 18/11/09.
- 4.
The High Level Meeting on Aviation and Climate Change, convened by the International Civil Aviation Organization from 7 to 9 October 2009 once again brought to bear the vexed issue of ICAO’s leadership in the field, only to be re-endorsed by the 56 States which attended the Meeting, that ICAO was indeed the leader and that ICAO should provide guidance on various issues pertaining to the subject. The meeting went on to acknowledge the principles and provisions on common but differentiated responsibilities and respective capabilities, and the fact that developed countries will be taking the lead under the UNFCCC and the Kyoto Protocol. It also acknowledged the principles of non-discrimination and equal and fair opportunities to develop international aviation set forth in the Chicago Convention and re-emphasized the vital role which international aviation plays in global economic and social development and the need to ensure that international aviation continues to develop in a sustainable manner.
- 5.
At the United Nations Framework Convention on Climate Change 15th Meeting of the Conference of the Parties (COP15) and the Fifth Meeting of the Parties to the Kyoto Protocol (CMP5) which were convened in Copenhagen on 8 December 2009, leaders from the U.S., India, Brazil, South Africa and China came to an agreement to combat global warming. The deal, which was only between five countries, contained no specifics on emissions cuts, but it did commit the countries to look to keep global warming at 2 °C or less and to promise $30 billion in funding to battle climate change by 2012. It also created a framework for international transparency on climate actions for developed and developing nations alike.
- 6.
Two basic guidelines used in environmental agreements are The Precautionary Principle, (“PP”) and the Common but Differentiated Responsibility Principle (“DR Principle”). The former is a pre emptive measure that addresses possibilities of harm and makes parties to an agreement take measures to anticipate, prevent or minimize the causes of such harm even if there is no scientific certainty regarding the harm. The Common but Differentiated Responsibilities principle is enshrined in Principle 7 of the Rio Declaration on Environment and Development which states:
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.
The core thrust of the principle of Common but Differentiated Responsibilities is global partnership and international cooperation. Therefore both developed and developing countries have a common goal of protecting the global environment. Principle 7 also denotes ecological interdependence of all States. A cardinal principle of public international law is sovereignty and the sovereign equality of States. An inevitable corollary to this principle is that legal obligations are based on reciprocity which binds each State equally. However, since States vary in size, capability and economic strength, it is incontrovertible that it becomes difficult to treat equality in substantive terms, thus paving the way for differentiation of responsibility among States.
- 7.
Flying Smart, Thinking Big, Airbus Industrie’s Global Market Forecast, 2009–2028, supra note 5 at 16.
- 8.
See generally Abeyratne (2008).
- 9.
On 8 July 2008, the European Parliament voted to expand the European Union Emissions Trading Scheme to cover aviation emissions from January 2012. What the EU ETS broadly proposes is that operators be allocated allowances each giving them a right to emit 1 tonne of carbon dioxide per year. The total number of allowances allocates a limit on the overall emissions from the activities covered by the Scheme. By 30 April each year operators must surrender allowances to cover their actual emissions. Operators can trade allowances so that emissions reductions can be made where they are most cost-effective.
- 10.
Resolution A36-22 (Consolidated statement of continuing ICAO poicies and practices related to environmental protection), Assembly Resolutions in Force (as of 28 September 2007), Doc 9902, ICAO: Montreal at 1–54.
- 11.
ICAO’s current environmental activities are largely undertaken through the Committee on Aviation Environmental Protection (CAEP), which was established by the Council in 1983, superseding the Committee on Aircraft Noise (CAN) and the Committee on Aircraft Engine Emissions (CAEE). CAEP is composed of members and observers. CAEP assists the Council in formulating new policies and adopting new Standards on aircraft noise and aircraft engine emissions. CAEP’s Terms of Reference and Work Programme are established by the Council. The current structure of the Committee includes five working groups and one support group. Two of the working groups deal with the technical and operational aspects of noise reduction and mitigation. The other three working groups deal with technical and operational aspects of aircraft emissions, and with the study of market-based measures to limit or reduce emissions such as emissions trading, emissions-related charges and voluntary. The support group provides information on the economic costs and environmental benefits of the noise and emissions options considered by CAEP.
- 12.
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.
- 13.
Climate Change 2007: Synthesis Report, an Assessment of the Inter-Governmental Panel on Climate Change topic 1 at 30.
- 14.
Id. 31. The IPCC also states that global atmospheric concentrations of CO2, CH4 and N2O have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years. The atmospheric concentrations of CO2 and CH4 in 2005 exceed by far the natural range over the last 650,000 years. Global increases in CO2 concentrations are due primarily to fossil fuel use, with land-use change providing another significant but smaller contribution. The Report further states that it is very likely that the observed increase in CH4 concentration is predominantly due to agriculture and fossil fuel use. The increase in N2O concentration is primarily due to agriculture. Id. Topic 2 at 37.
- 15.
Carbon dioxide, methane, nitrous oxide, hydro fluorocarbons, per fluorocarbons and sulphur hexafluoride.
- 16.
Aviation and the Global Atmosphere, Intergovernmental Panel on Climate Change (WMO, UNEP), A Special Report of IPCC Working Groups 1 and II, Cambridge University Press: Cambridge, 1999.
- 17.
Id. at 21.
- 18.
Climate Change 2007…, supra, note 13 at 37.
- 19.
A37-WP/262 EX/53.
- 20.
The Clean Development Mechanism (CDM) allows a developed country with an emission-reduction or emission-limitation commitment under the Kyoto Protocol to implement an emission-reduction project in developing countries. Such projects can earn saleable certified emission reduction (CER) credits, each equivalent to 1 tonne of CO2, which can be counted towards meeting Kyoto targets. See http://www.icao.int/icao/fr/env2010/ClimateChange/Finance_f.htm.
- 21.
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. The UNFCCC or FCCC is an international environmental treaty produced at the United Nations Conference on Environment and Development (UNCED), informally known as the Earth Summit, held in Rio de Janeiro in 1992. The treaty aimed at reducing emissions of greenhouse gas in order to combat global warming. The treaty as originally framed set no mandatory limits on greenhouse gas emissions for individual nations and contained no enforcement provisions; it is therefore considered legally non-binding. Rather, the treaty included provisions for updates (called “protocols”) that would set mandatory emission limits. The principal update is the Kyoto Protocol, which has become much better known than the UNFCCC itself. The stated objective of UNFCCC is “to achieve stabilization of greenhouse gas concentrations in the atmosphere at a low enough level to prevent dangerous anthropogenic interference with the climate system.”
- 22.
The Third Conference of the Parties to the United Nations Framework Convention on Climate Change (Climate Change Convention) was held from 1 to 11 December 1997 at Kyoto, Japan. Significantly the States parties to the Convention adopted a protocol (Kyoto Protocol) on 11 December 1997 under which industrialized countries have agreed to reduce their collective emissions of six greenhouse gases by at least 5% by 2008–2012. The Kyoto Protocol to the United Nations Framework Convention on Climate Change is an amendment to the international treaty on climate, assigning mandatory emission limitations for the reduction of greenhouse gas emissions to the signatory nations. Article 1 (a) (v) of the Protocol calls each State Party to achieve progressive or phasing out of market imperfections, fiscal incentives, tax and duty exemptions and subsidies in all greenhouse gas emitting sectors that run counter to the objective of the Convention and application of market instruments. See Kyoto Protocol to the United Nations Framework Convention on Climate change, UN Doc. FCCC/CP/1997/L.7/Add.1.
- 23.
- 24.
Supra, note 21.
- 25.
CAEP/7-IP/21, Appendix B at B-1.
- 26.
Id. B-2.
- 27.
C-DEC 179/11.
- 28.
On 12 September 2008, Air New Zealand Flight 8, the first “gate-to-gate optimized flight,” landed at San Francisco International Friday. The 777-200ER flight, dubbed ASPIRE 1 (Asia and South Pacific Initiative to Reduce Emissions), started in Auckland and consumed 4,600 L less fuel than normal using a host of strategies to minimize fuel usage. That translated into 12 tons fewer CO2 emissions. ASPIRE is a joint initiative among US FAA, Airways NZ and Airservices Australia. The 777-200ER was cleared for a “tailored arrival” – a continuous descent at idle thrust and touched 5 min ahead of schedule. San Francisco International Airport playing a leading role in tailored arrivals, a joint project among Boeing, NASA, FAA and the airport. See http://atwonline.com/news/story.html?storyID=14023.
- 29.
See Hupe (2008), p. 4.
- 30.
- 31.
The basic philosophy of Article 15 of the Convention on International Civil Aviation is that every airport in a Contracting State which is open to public use by its national aircraft shall likewise be open under uniform conditions to the aircraft of all the other Contracting States. It also requires that uniform conditions shall apply to the use, by aircraft of every Contracting State, of all air navigation facilities, including radio and meteorological services, which may be provided for public use for the safety and expedition of air navigation. Article 15 subsumes three fundamental postulates:
-
a)
uniform conditions should apply in the use of facilities provided by airports and air navigation services;
-
b)
aircraft operators should be charged on a non-discriminatory basis; and
-
c)
no charges should be levied for the mere transit over, entry into or exit from the departure of a Contracting State.
-
a)
- 32.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944. ICAO doc 7300/9 Ninth Edition: 2006.
- 33.
ICAO Environmental Report 2007, ICAO: Montreal at 102.
- 34.
Emissions trading, as set out in Article 17 of the Kyoto Protocol to the UNFCC, allows countries that have emission units to spare – emissions permitted them but not “used” – to sell this excess capacity to countries that are over their targets. Thus, a new commodity was created in the form of emission reductions or removals. Since carbon dioxide is the principal greenhouse gas, people speak simply of trading in carbon. Carbon is now tracked and traded like any other commodity. This is known as the “carbon market”. The Kyoto Protocol is an international agreement linked to the United Nations Framework Convention on Climate Change. The major feature of the Kyoto Protocol is that it sets binding targets for 37 industrialized countries and the European community for reducing greenhouse gas (GHG) emissions. These amount to an average of 5% against 1990 levels over the 5-year period 2008–2012. For details on the Kyoto Protocol, see supra, note 30.
- 35.
State and Trends of the Carbon Market, The World Bank, Washington D.C, May 2007 at 3.
- 36.
See R. Bulleid, The Capital Begins to Flow, Environmental Finance, April 2006 at 34.
- 37.
New Carbon Finance, “UK in Pole Position as Carbon Funds Surge – but More Funds required”. Press Release 4 April 2007, at www.newcarbonfinance.com.
- 38.
Supra note 21.
- 39.
Carbon trading, which is a species of the genus emissions trading is essentially market based and is usually based on a model that first that requires an environmental authority to decide on an acceptable level of overall emissions. The level, or target, once identified, gives rise to permits which are issued consistent with that target, each of which confers the right to release a certain amount of pollution over some period of time. The firms which are issued with these permits, be they airlines or other service and goods providers, may apply these permits to their own emissions, sell excess permits to other pollution sources, or purchase permits from other firms if their emissions exceed their permit holdings.
An emissions permit market could be established provided there is extensive coverage of a permits system and there are no barriers to trading in such a market.
- 40.
In addition to carbon trading there is also the concept of a carbon tax which is essentially an economic instrument. It is a tax levied on the total quantity of greenhouse gases emitted. The European Union once considered a carbon tax as a viable economic instrument that could be effective in curbing emissions. However, a carbon tax provided less flexibility for member states since E.U. members have varying amounts of pollution and wealth. Since a tax would impose the same levy on all countries, rich and poor, and some members would have been paying a great deal more in taxes than others, the EU’s conclusion on a carbon tax was that, using a trading scheme instead would improve flexibility, particularly if, along the lines of current practice in the EU, under a cap-and-trade system the E.U. could set one overall cap on emissions, while allocating allowances to each country based on its individual emissions. Such a trading scheme meant less pressure on industry if the allowances were initially issued for free, whereas a tax (or auctioned allowances) charges industry for all residual emissions See generally, Owen and Hanley (2004).
- 41.
- 42.
There is a general common law presumption against the extra territorial application of legislation. See the House of Lords decision in Holmes v. Bangladesh Biman Corporation [1989] AC 1112 at 1126; 87 ILR 365 at 369. Also, Air India v. Wiggins [1980] 1WLR 815 t 819; 77 ILR 276 at 27.
- 43.
See The US Sherman Antitrust Act 1896 15 USC paras 1ff.
- 44.
US. v. Aluminium Company of America, 148 F.2d 416 (1945).
- 45.
Timberlane Lumber Company v. Bank of America 549 F.2d 597 (1976); 66 ILR, 270. Also, Mannington Mills v. Congoleum Corporation, 595 F.2d 1287 (1979); 66 ILR, 487.
- 46.
The Third Restatement constitutes a comprehensive revision of the earlier (1965) Restatement, covering many more subjects, and reflecting important developments in the intervening decades. This Restatement consists of international law as it applies to the United States, and domestic law that has substantial impact on the foreign relations of the United States or has other important international consequences.
- 47.
F.2d 909 (1984).
- 48.
Comity, at law, refers to legal reciprocity where one jurisdiction will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another country. It is especially important in the application of principles of public international law. Part of the presumption of comity is that other nations will reciprocate the courtesy shown to them.
- 49.
Hartford Fiore Insurance Company v.California, 113 S. Ct. 2891 (1993) per Souter J.
- 50.
The most common instance of blocking legislation concerns the prevention of private information being demanded and obtained from nationals of a State by another State. Several countries have enacted so-called “blocking legislation”. Blocking legislation mandates the confidentiality of information and documents and attempts to block foreign efforts to obtain evidence from residents of the enacting jurisdiction. It is often enacted by countries seeking to foster banking and financial industries, such as Switzerland, the Bahamas, Panama and Vanuatu. It generally prohibits residents of those countries and corporations doing business there disclosing confidential business information about others doing business there.
- 51.
Consolidated statement of continuing ICAO policies and practices related to environmental protection, Assembly Resolutions in Force (As of 28 September 2007), ICAO Doc 9902, 1–54 to 1–74.
- 52.
Id, Appendix A, at 1–55.
- 53.
Id. Appendix L, at 1–73.
- 54.
Striving Toward Meaningful Solutions, an Interview with Mr. Daniel Calleja, ICAO Journal, Issue 04, 2008 14–15 at 15.
- 55.
Ibid.
- 56.
Version 1 – May 2008.
- 57.
The ICAO Carbon Calculator can be accessed through ICAO’s website at www.icao.int.
- 58.
The GCD is the shortest path between two points on the surface of the sphere.
- 59.
Sausen and Schumann (2007).
- 60.
See Environmental Newsletter, Clyde And Company, March 2010, at 7.
- 61.
Lorna Reader, EP Leaves Aviation ETS Unchanged, Regional International, February 2009 at 11.
- 62.
The EU does not yet have a formal definition for “process emissions,” either. In general terms, though, process emissions refer to those greenhouse gas emissions (or CO2 emissions in your case) that are the result of a chemical reaction during the processing of a material, as opposed to being the result of combusting a substance.
Combustion emissions are more straightforward, since they are all greenhouse gas (or CO2) emissions that are the result of combustion (e.g. burning jet fuel).
- 63.
EU Calculations Trading Scheme – Calculating the Free Allocation for New Entrants, A Report Produced for the Department of Trade, November 2004 at 3.
- 64.
The 2006 IPCC emission factor for Jet Fuel is 3.157 kg CO2 per kg of Jet Fuel (http://www.ipcc-nggip.iges.or.jp/public/2006gl/pdf/2_Volume2/V2_3_Ch3_Mobile_Combustion.pdf.
- 65.
See Giving Wings to Aviation, Inclusion of Aviation Under The European Emissions Trading System (ETS): Design and Impacts, Report of the European Commission, DG Environment No. ENV.C.2/ETU/2004/0907/4r, Delft: July 2005 at 8–10.
- 66.
Jardine (2009). He also cites DEFRA, Act on CO2 Calculator: Data, Methodology and Assumptions Paper V1.2 August 2008.
- 67.
Id. 17.
- 68.
The gross domestic product (GDP) or gross domestic income (GDI) is a basic measure of a country’s overall economic output.
- 69.
Flying Smart, Thinking Big, Airbus Industrie’s Global Market Forecast, 2009–2028, at 8–9.
- 70.
- 71.
Bisignani (2006).
- 72.
Ibid.
- 73.
- 74.
Obama (1995).
- 75.
Obama (2006).
- 76.
Monbiot (2006).
References
Abeyratne RIR (1999a) Emissions trading as a market-based option in air transport – contractual issues. Environ Policy Law 29(5):226–235 (November 1999)
Abeyratne RIR (1999b) The fuel tax and emissions trading as market-based options in air transport. Ann Air Space Law (Annales de Droit Arien et Spatial) XXIV:1–31
Abeyratne RIR (2008) A review of energy efficiency within the air transport industry. Zeitschrift luft-und Weltraumrecht 57(3):321–334
Bisignani G (2006) Think again airlines. At http://www.foreignpolicy.com/articles/2006/01/04/think_again_airlines?print=yes&hidecomments=yes&page=full, January 2006
Gander S, Helme N (1999) Emissions trading is an effective, proven policy tool for solving air pollution problems. ICAO J 54(7):12–14, 28–29 (September 1999)
Hardeman A (2007) A common approach to aviation emissions trading. Air Space Law XXXII(1):3–18 (February 2007)
Hupe J (2008) En route to Copenhagen: international aviation action on climate change, aviation and the environment. ICAO J 63(4):4–6
Jardine CN (2009) Calculating the carbon dioxide emissions of flights. Environmental Change Institute, Oxford University Centre for the Environment, Oxford, February 2009
Monbiot G (2006) HEAT: how to stop the planet from burning. Doubleday, Canada, p 174
Obama B (1995) Dreams from my father. Random House, New York
Obama B (2006) The audacity of hope. Random House, New York
Owen AD, Hanley N (eds) (2004) The economics of climate change. Routledge, New York, p 115
Sausen R, Schumann U (2007) Aviation carbon offset programmes. ICAO J 6(5):13
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2012 Springer-Verlag Berlin Heidelberg
About this chapter
Cite this chapter
Abeyratne, R. (2012). Environmental Issues. In: Strategic Issues in Air Transport. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-21960-3_4
Download citation
DOI: https://doi.org/10.1007/978-3-642-21960-3_4
Published:
Publisher Name: Springer, Berlin, Heidelberg
Print ISBN: 978-3-642-21959-7
Online ISBN: 978-3-642-21960-3
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)