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In Defense of Incrementalism for International Aviation Emissions Regulation

by GABRIEL S. SANCHEZ ~ Oct 09, 2012

The looming threat of a global ecological catastrophe produced by human-induced climate change has been insufficient to spur the world’s 194 States into consummating a pan-sectoral treaty to reduce so-called “greenhouse gas” emissions. The primary reason why is intelligible enough: The world’s largest greenhouse-gas emitters, i.e., those which will have to bear the largest costs associated with emissions reduction, are unlikely to face the brunt of the disaster — at least at first.  Moreover, China, which is now the largest emitter of greenhouse gases, remains steadfast in its refusal submit to transnational environmental legal disciplines, perhaps for ideological reasons. The current climate-change legal instruments, the UN Framework Convention on Climate Change and the Kyoto Protocol, are weak and the latest round of talks to amend them, concluded last December in Durban, resulted in a mere agreement for an ill-defined future agreement — one which will not come into effect any sooner than 2020.  

In the interim, States remain free to adopt their own “eco-friendly” measures, though it’s unlikely they will collectively depress worldwide emissions levels down to an environmentally appropriate level. A plethora of stakeholder interests will likely serve as a drag on optimality. Still, a case could be made that “some effort” is better than “no effort,” assuming of course that “some effort” at the unilateral level is not accompanied by a major foreign relations fallout that risks jeopardizing multi-State cooperation in the future. Unfortunately, this is exactly what is unfolding right now with respect to the European Union’s politically contentious and legally controversial decision to unilaterally apply its so-called “Emissions Trading Scheme” (ETS) to all international airline flights arriving to or departing from its territory, regardless of the national origin of the carrier or the percentage of the flight conducted within EU airspace. Critics charge that the ETS violates several provisions of the 1944 Convention on International Civil Aviation (“Chicago Convention”), as well as customary international law and the EU’s aviation-specific bilateral agreements. Whether this is true or not is secondary to the undeniable fact that EU’s alleged regulatory overreach has strained its relations with a number of aviation powers, including the United States, China, India, and Russia. Several States are contemplating a formal challenge to the ETS before the UN’s official air transport organ, the International Civil Aviation Organization (ICAO), though the Organization lacks a strong enforcement apparatus. All of them have threatened extra-legal retaliatory action, with China thus far ordering its airlines not to comply with the ETS and India expected to follow. The end result could very well be a full-scale aviation trade war, with airlines, airports, and aircraft manufacturers all suffering along the way.

These potential economic consequences — negative though they are — pale in comparison, however, to the damage this aeropolitical knife-fighting could do to the possibility of formulating a sector-specific aviation emissions agreement. As Brian Havel and I have proposed, international aviation’s current legal regime provides a pathway to an incremental, but not insubstantial, emissions-reduction agreement which could be built off of the 2007 U.S./EU Air Transport Agreement — arguably the most far-reaching and sophisticated aviation trade and regulatory treaty in history.  Making good on the potential of the 2007 Agreement, however, means that all parties, including the EU, agree to a cease-fire — at least for the time being. Why the EU should opt to submit despite having already invested considerable political capital in bringing aviation into its ETS is, in part, the subject of this paper. Concomitantly and, perhaps, more controversially, I want to suggest that any and all authentically multilateral overtures (i.e., ones involving a substantial majority of the international community) to cover aviation in a sector-specific climate change agreement be suspended, at least until those States with the political will to address the aviation emissions issue have the opportunity to explore an incremental approach. Because multilateralism is likely to fail on the one hand and unilateralism has shown itself to be unproductive and deleterious on the other, neither path is normatively desirable. The incremental approach, then, remains an open area where negotiating resources can be productively directed.

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