Environmental protection by ICAO : an assessment of the legal framework towards measures to reduce green house gas emissions in the international civil aviation sector

Abstract

Global climate change should be a concern of all mankind. If left unmitigated the effects will be catastrophic for continued life on Earth. International efforts through the climate change regime seek to address global climate change. The principle of ‘common but differentiated responsibilities and respective capabilities’ (CBDRRC) is fundamental to State engagement in this regard. The principle, and its implementation, recognises differences between States in respect of their responsibilities to address climate change as well as their capacities to do so. Providing climate change mitigation measures in the international civil aviation sector proved to be an unanswerable conundrum for the climate change regime due to difficulties in deciding on appropriate emissions allocation. The responsibility for climate change efforts in the international civil aviation sector was transferred from the climate change regime to the International Civil Aviation Organization (ICAO) for resolution. Given the already established regulatory role in international aviation, the decision to do so seems apt. This is, perhaps, an oversimplification of a complex legal environment. ICAO was not founded with environmental considerations as a core concern and there are fundamental clashes between the legal framework in international civil aviation and CBDRRC, the latter having also undergone a dramatic evolution since the referral to ICAO. ICAO has recently introduced its regulatory response to the call of the climate change regime, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). This thesis will illustrate the evolution of the principle of common but differentiated responsibilities to arrive at its contemporary interpretation and discuss the measures delivered by ICAO to determine whether they accord with the principle of ‘common but differentiated responsibilities and respective capabilities’.