III. International Environmental Law and Aviation
A. Aviation and the Environment: Noise and Air Quality
Although over time the ICAO has increasingly acknowledged the role of aviation in environmental quality,18 in the last two decades, the focus of environmental concerns at the ICAO has heavily shifted from local noise and air pollution to the global atmospheric impacts of aviation, most notably how to address GHG emissions from the sector.
The main instrument for environmental regulation of the sector is the ICAO’s Standards and Recommended Practices (SARPS)19 for Environmental Protection launched in 1971 as Annex 16 of the Chicago Convention.20 SARPs on aircraft noise and (p. 596) air quality were adopted and first considered, respectively, that year.21 Today, Annex 16 comprises three volumes, which are devoted to aircraft noise (Volume I), aircraft engine emissions (Volume II), and CO2 certification requirements (Volume III).
The ICAO’s efforts on policies to limit the number of people affected by significant aircraft noise22 focus mostly on reducing noise at source through aircraft noise certification standards23 aiming to incorporate noise reduction technology in aircraft design. These certifications attesting the noise of a given aircraft are granted by the state of registry of the airplane or helicopter, and must be carried on board. Certifications are mutually recognized by states, if they comply with the minimum requirements (maximum noise limits)24 established by the ICAO SARPs.25 Noise monitoring measures, airport noise assessment, and the Guidance on the Balanced Approach to Aircraft Noise Management26 were also adopted to tackle noise in the affected vicinities. SARPs on noise pollution are continuously updated27 for future aircraft in line with new noise reduction technologies, and with regard to the interactions and trade-offs with reducing the fuel burn and emissions standards.28
Despite the progress achieved in the last few decades, environmental noise is still a cause of public concern29 and one of the main challenges for this sector.30 Indeed, several claims related to environmental noise from airports and aircraft have been put forward in different jurisdictions31 and before the European Court of Human Rights (ECtHR).32 These concerns are often raised in the context of expanding existing or building new airports.
(p. 597) An emerging area of noise regulation includes upcoming certifications for supersonic aeroplanes, currently under consideration at CAEP.33 However, while the potential of supersonic aviation will require attention, the steep upswing of aviation activities, and associated noise impact on populations, would require states to develop stringent standards for traditional subsonic aircraft.
The second set of environmental problems stemming from aviation activities relates to air quality.34 Regulatory efforts here focus on the emissions of pollutants released by engine-powered aircraft during landing and take-off,35 where engine certification schemes granted by the state of registry are the main tool for local air quality control.36 In 1997, the Circular on Control of Aircraft Engine Emissions paved the way for the inclusion of vented fuel, smoke, and certain gaseous emissions in Annex 16.37 Building on this, the engine certification standards for the diverse type of aircraft in Volume II of the Annex set a limit on the emissions of gaseous pollutants, namely unburned hydrocarbons, oxides of nitrogen and carbon monoxide, and smoke.38 Volume II also contains provisions regarding vented fuel.39 To promote the uniform implementation of Volume II, CAEP has developed a manual to guide certificating authorities on the procedures deemed acceptable for demonstrating compliance with the standards.40 As with other SARPs, emissions standards are regularly updated. Standards for particulate matter, mainly consisting of soot or black carbon emissions, were added in January 2020.
Although the ICAO’s regulation has significantly reduced emissions affecting air quality near airports, the forecast growth in aviation volume is likely to trump these improvements. This also holds true in relation to global air quality and the impact of aviation on ozone,41 areas of interaction not fully understood.42
(p. 598) B. Aviation and Climate Change
GHG emissions from aviation account for around 2% of global GHG emissions43 and are forecast to grow exponentially by an estimated 300–700% by 205044 due to high levels of sustained energy demand in the sector arising from increased air travel, which is projected to double by 2035.45 CO2 emitted by aircraft engines is the biggest contributor to aviation’s impact on climate change. However, research suggests that this impact is greater when considering non-CO2 emissions, namely nitrogen oxides (NOx), water vapour, sulphur (SOx), and soot particles, and the formation of condensation trails.46
The climate change regime has struggled to regulate international aviation (and maritime transport) GHG emissions.47 Although discussed by the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change,48 and subsequently under the 1992 UNFCCC (UN Framework Convention on Climate Change) umbrella, there have been limited meaningful outcomes. UNFCCC reporting obligations49 make a crucial distinction between domestic and international aviation. Emissions from domestic aviation are included in country parties’ inventories under national totals, and international aviation emissions are reported separately, that is, decoupled from countries’ responsibilities.50 In turn, the Kyoto Protocol excluded international aviation emissions from its targets in 1997 and acknowledged the role of the ICAO as the venue for negotiating measures.51 Nonetheless, discussions on how (p. 599) to address emissions from international aviation continued under the climate regime, not only with the work of the SBSTA (Subsidiary Body for Scientific and Technological Advice) in improving inventories52 but also under the mandate of the Ad Hoc Working Group on Long-term Cooperative Action53 and the Ad Hoc Working Group on the Durban Platform for Enhanced Action (ADP).54 Although international aviation was included in the negotiating draft agreement prepared by ADP and presented to the COP 21 for adoption,55 the clause did not make it to the final text of the 2015 Paris Agreement.56 Disagreements leading to the omission of aviation in the Paris Agreement coalesced, primarily, around the divergent understandings of parties on the application of CBDRRC (common but differentiated responsibilities and respective capabilities) to international aviation,57 in particular, due to the principles of non-discrimination and equal opportunities enshrined in the Chicago Convention,58 and to concerns over potential distortion of competition.
Since the adoption of the Kyoto Protocol, the ICAO has been increasingly accepted as the forum for the regulation of climate-related aviation impacts by UNFCCC parties. Beyond commissioning reports and task groups to advance discussions on different aspects of the problem,59 the ICAO adopted a Programme of Action in 2010,60 which included an aspirational goal to achieve carbon neutral growth in the sector from 2020 onwards. To achieve this goal, a ‘basket of measures’ have been adopted, including technical and operational measures, the advance of alternative fuels, and the establishment (p. 600) of a global market-based measure (MBM) for international aviation. Crucially, in 2013, the ICAO Assembly agreed develop an MBM,61 which was finally adopted in 2016.62
The Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) aims to stabilize the sectors’ emissions by addressing any increase above 2020 levels through offsetting.63 The cap-and-offset scheme requires airlines operating in the routes covered (exceptions are granted for certain flights, volumes, and routes) to buy carbon credits to compensate for their growth in CO2 emissions above 2020 levels.64 The scheme’s coverage is based on routes and the scheme applies equally to all air carriers on a route by route basis, with emissions allocated to air carriers, not to countries for a given flight stage. However, to reach an agreement to adopt CORSIA, differential treatment in favour of developing countries needed to be incorporated. In this connection, Least Developed Countries, Small Island Developing States and landlocked Developing Countries are exempted from the scheme and invited to join CORSIA voluntarily.65
The scheme is envisioned to be deployed in three implementation phases. The first two phases (a pilot phase from 2021 to 2023 and a first phase from 2023 to 2026) are voluntary for all states. After 2027, when the second phase (2027–35) starts, the scheme becomes mandatory for all states above the threshold of 0.5% of total revenue tonne kilometres.66 The ICAO’s country members are responsible for monitoring, reporting, and verifying the emissions data and related offsets for its aircraft operators of flights covered by the scheme. From 1 January 2019, all carriers are required to report their CO2 emissions on an annual basis. CORSIA is currently under development at the ICAO and a crucial issue to be determined is the eligibility criteria of the offset credits, which will largely determine the environmental effectiveness of the scheme.67 Notably, sustainable aviation fuels have received much attention in the ICAO and support from the industry,68 and they might be used for compliance with CORSIA69 under certain conditions (eg a 10% (p. 601) minimum GHG reduction and not made from biomass obtained from land with high carbon stock value). However, the potential of sustainable aviation fuels is contested.70
Other climate-related measures adopted in the ICAO include a CO2 certification standard for aircraft,71 which became part of Volume III to Annex 16 of the Chicago Convention. The standard applies to new aircraft from 2020, and to aircraft already in production as of 2023. Additional measures include establishing State Action Plans on mitigation activities, the enhancement of capacity-building and assistance, and a mechanism to facilitate access to financial resources for climate purposes.72
The ICAO has failed to adopt a carbon target in line with the Paris Agreement goals.73 Existing policies at the ICAO, namely the CO2 standard for new aircraft and CORSIA, have raised criticism, and more comprehensive approaches have been suggested.74 Current measures are deemed insufficient to reduce international aviation emissions meaningfully,75 which will mean that by 2050 aviation would have consumed 12% of the global carbon budget in a 1.5°C scenario.76
Under these circumstances, ambitious countries might seek to complement international efforts with unilateral action.77 Most notably, the European Union (EU) passed legislation in 2008 to include aviation (all flights arriving or departing from an aerodrome in EU territory) in the EU Emissions Trading Scheme (ETS).78 The measure faced political, commercial, and legal opposition ending with international flights being temporarily waived from compliance.79 Here, questions arise about the coexistence (p. 602) of the EU scheme with CORSIA.80 Additionally, a new regulatory frontier relates to the non-CO2 impacts of aviation. For example, the 2018 amendment of the EU ETS81 envisages that ‘before 1 January 2020, the Commission shall present an updated analysis of the non-CO2 effects of aviation, accompanied, where appropriate, by a proposal on how best to address those effects’.
IV. International Environmental Law and Maritime Transport
A. Maritime Transport and the Environment
Chapter 31 in this volume analyses the general legal and regulatory framework for protecting the marine environment and introduces the main instruments regulating pollution from vessels.82 Building on that, this chapter examines some of the key legal instruments dealing with the prevention of maritime transport environmental impact.
Shipping poses several threats to the environment both through accidents at sea involving spills of oil and other substances, and in the normal operation of vessels. In preventing pollution from ships, regulations focusing on ship safety standards are relevant, such as the 1974 Safety of Life at Sea Convention, which not only aims to protect human lives, but also extends to environmental protection. In regulating pollution from vessels, there are four main regulatory frameworks,83 regarding the prevention and control of pollution from ships (MARPOL73/78),84 dumping of waste,85 invasive species carried in ballast water,86 and environmental pollution from ship-breaking.87
(p. 603) MARPOL aims to eliminate all types of pollution88 caused by ship operations and to minimize discharges,89 through detailed technical regulation incorporated in its annexes.90 However, not all the annexes have the same weight since only Annexes I and II dealing with the prevention of pollution by oil and the control of pollution by noxious liquid substances, respectively, are obligatory for all parties to the MARPOL Convention. Annex III on the prevention of pollution by harmful substances in packaged form, Annex IV on the prevention of pollution from sewage from ships, Annex V on the prevention of pollution by garbage from ships, and Annex VI on the prevention of air pollution from ships are optional for the parties. However, these standards are generally accepted and might be regarded as prescriptive for flag states under Article 211 of the UNCLOS.91
MARPOL addresses both accidental and non-accidental pollution. A vital element in preventing accidental oil pollution incorporated in MARPOL is the double-hull requirements adopted in 1993.92 After the Erika oil spill in 1999, parties agreed to a stricter timetable for the phasing-out of single-hull tankers, and this now includes a ban on the carriage of heavy grade oil in certain single-hull tankers.
The prevention of air pollution from ships was first considered in 1991.93 Annex VI on air pollution was adopted in 199794 to ‘preserve the marine environment through the complete elimination of pollution by oil and other harmful substances and the minimization of accidental discharge of such substances’.95 In particular, limits on sulphur oxide (SOx) and nitrogen oxide (NOx) emissions, and a prohibition on deliberate release of emissions of ozone depleting substances, were adopted. In addition, Annex VI introduces emission control areas (ECAs) with tighter requirements. A significant revision of Annex VI was agreed in 2008,96 and progressively Annex VI has been incorporating new substances,97 including GHGs. Revised MARPOL Annex VI establishes that ships constructed on or after certain years (2000, 2011, and 2016) must comply with three different NOx limits (Tier I, II, and III), depending on certain (p. 604) conditions, and with a lower emission limit in the ECAs.98 The control of NOx emissions is achieved through the Engine International Air Pollution Prevention Certificate.
Another major development is the lowering of the maximum content of sulphur in marine fuels to 0.50%.99 While a noteworthy environmental improvement, this poses a significant operational burden on the industry, risking severe enforcement complications since entering into force in 2020.100
In relation to MARPOL, the Polar Code seeks to prevent vessel pollution from ships operating in polar waters (Antarctica and the Arctic) through mandatory requirements and recommendations.101 The Polar Code enhances the requirements already applicable to ships under MARPOL, such as more ambitious mandatory operational discharges. In addition, the Polar Code confirms the prohibition of carrying or using heavy grade oils in the Antarctica,102 and encourages parties not to use or carry heavy fuel oil in the Arctic.
The incineration and dumping at sea of hazardous materials and waste falls outside the scope of MARPOL, and is covered by the 1972 London Dumping Convention and its 1996 Protocol. Dumping is defined as ‘any deliberate disposal into the sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures’.103 The Protocol applies the precautionary approach to environmental protection from dumping104 and the polluter pays principle,105 and states that parties should not allow the transfer of pollution and environmental damage.106 The Protocol prohibits all dumping of waste, with limited exceptions that can be accepted through a permit system, under certain conditions and strict control.107 The Protocol was amended in 2009 to include CO2,108 which is allowed to be stored in the sub-seabed.109
(p. 605) The 2004 Ballast Water Management Convention is the third relevant treaty.110 It takes a precautionary approach to the problem of the biological materials carried and discharged through ships’ ballast water operations, which is a leading source of invasive aquatic species. Due to the enlargement of ship sizes and the speeding up of shipping voyages, greater quantities of ballast water are transported faster to different parts of the world, causing a significant transfer of alien species. To avoid this transfer, the Convention, which builds on the IMO’s Guidelines for the control and management of ships’ ballast water,111 requires all ships to implement a Ballast Water Management Plan. Ships must carry a record book on board and must perform ballast operations according to the standards under the Convention, including ballast water treatment system. New guidelines and procedures for uniform implementation of the Convention have been adopted,112 and the guidelines for approval of ballast water management systems converted into a mandatory code in 2018.113
An array of instruments (including IMO recommendations) are relevant for controlling ship-breaking activities. Most notably, the 2009 Hong Kong Convention for the Safe and Environmentally Sound Recycling of Ships, which aims to prevent, minimize, reduce, and eliminate accidents and injuries on human health and environmental impact caused by ship recycling.114 In 2018, the global merchant fleet accounted for around 52,000 ships,115 of which, approximately, 750 were dismantled. 78% of the ship-breaking worldwide takes place under the ‘beaching method’, which causes severe pollution.116 The dismantling of end-of-life vessels releases materials such as oil, asbestos, toxic chemicals, and heavy metals into the environment.117 The Hong Kong Convention provides for establishing ship recycling facilities, inspection of ships, and sanctions for violations of the Convention.118 However, since the Convention is not yet in force, the interplay with the 1989 Basel Convention,119 which enjoys wide ratification, is pertinent here,120 given that the ships fall under the definition of waste of Article 2.121
(p. 606) B. Maritime Transport and Climate Change
GHG emissions from international maritime transport account for around 2–3% of the global total, and are forecast to increase between 50% and 250% by 2050.122 Moreover, the contribution of shipping to climate change will intensify as ‘regional’ climate change123 opens up routes in the Arctic.
Like aviation, the regulation of GHG emissions emanating from maritime transport has been part of the negotiating agenda of the UNFCCC since the inception of the regime.124 Parties agreed to a similar distinction between domestic and international maritime transport in relation to their reporting obligations, and the sector, like aviation, is excluded from the Kyoto Protocol, and not referenced in the Paris Agreement.125
In 1997, parties to MARPOL adopted a resolution recognizing the adverse impact of CO2 emissions from shipping on the environment, and requesting the IMO to study the climate challenge. However, it was not until 2003 that the MEPC was tasked with identifying and developing the mechanisms needed to achieve limitations or reductions of GHG emissions from ships.126 In 2011, chapter four on ‘Regulations on Energy Efficiency for Ships’ was added to MARPOL Annex VI, with mandatory energy efficiency requirements for ships.127 The Energy Efficiency Design Index (EEDI) covers all new ships from 2013 and aims to promote innovation and reduce consumption through an energy-efficiency design standard.128 Since the EEDI is based on performance, the way in which the target should be achieved is largely left to the industry. In 2019, amendments to strengthen EEDI were approved.129 In addition, in 2011, an operational measure applying to all ships (Ship Energy Efficiency Management Plan) was agreed upon. SEEMP sets a mechanism for monitoring ship and fleet energy efficiency and a voluntary Energy Efficiency Operational Indicator (EEOI) as a monitoring tool.130
(p. 607) In including EEDI and SEEMP in MARPOL Annex VI, many developing countries raised concerns about the absence of differentiation in favour of developing countries,131 in relation to capacity-building, technical assistance, and transfer of technology. These concerns echoed a long-standing debate on how to apply CBDRRC at the IMO, in particular for MBMs. Contrary to the climate regime, the IMO Convention,132 the IMO treaties, and the IMO practice build on the principle of non-discriminatory regulation of all ships and the principle of no-more-favourable treatment of ships.133 Here, the system of ship registries with increasing foreign-flagging and flag-jumping practices poses challenges in differentiating between countries.134 Whereas a resolution providing a framework for the promotion of technical cooperation and the transfer of technology for the measures included in Annex VI was adopted in 2013,135 there were irreconcilable views on the application of differentiation to potential MBMs, so discussions were suspended.
In 2015 discussions reopened with a proposal to set a global CO2 target,136 and after the adoption of the Paris Agreement, the IMO approved a Roadmap for GHG emissions.137 Thereafter, a mandatory Data Collection System for recording and reporting data on fuel consumption was adopted via MARPOL Annex VI,138 which requires ships of 5,000 gross tonnage and above to collect data on fuel oil consumption and distance. This mechanism is regarded as a first step towards establishing further measures such as MBMs.
Crucially, in 2018, an Initial Strategy on GHG emissions was adopted,139 aiming to set an overall vision for decarbonizing the sector consistent with the Paris Agreement goals. This vision is understood as requiring a peaking of GHG emissions from international shipping as soon as possible, and achieving reductions by at least 50% by 2050, from 2008 levels. The specific measures to achieve this target, and its consequences for (p. 608) international shipping, are still under discussion, in particular with regard to the potential short-, mid-, and long-term measures.140
To advance the climate agenda at the IMO, a Fourth IMO GHG Study has been commissioned, and two resolutions have been adopted to encourage voluntary cooperation between ports and the shipping industry, and to establish a multi-donor trust fund to provide financial support for technical cooperation and capacity-building activities aimed at the implementation of the GHG Strategy.141
Footnotes:
1 OECD, Globalisation, Transport and the Environment (2010) 14.
3 ‘Draft Agreement between UN and ICAO’ (30 September 1946) A/106; UN Economic and Social Council Res 165(VII), ‘Draft Agreement between UN and IMCO (IMO)’ (27 August 1948); these agreements were signed pursuant to ch IX of UN Charter.
4 See eg Beatriz Romera, Regime Interaction and Climate Change: The Case of International Aviation and Maritime Transport (Routledge 2018).
5 As amended by ICAO Doc 7300/9 (2006).
6 Michael Milde, ‘Future Perspective of Air Law’ in Karl-Heinz Böckstiegel et al, Perspectives of Air Law, Space Law, and International Business Law for the Next Century (C. Heymanns 1996) 13–18.
8 ICAO Council, ‘Strategic objectives of ICAO for 2005–2010—Consolidated vision and mission statement’ (adopted 17 December 2004).
10 Amended and renamed Convention on the International Maritime Organization via 14 November 1975 amendment, which entered into force on 22 May 1982.
11 Until 1982 the IMO was named Inter-governmental Maritime Consultative Organization (IMCO).
12 Mentions of marine pollution and the environment were included in the 1975 and 1977 amendments.
14 arts 1(c), 1(d), 1(e).
15 See Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume.
16 Part XII—Protection and Preservation of the Marine Environment (arts 192–237).
17 The IMO is ‘the competent international organization’, referred to in UNCLOS arts 21, 210, 211, 217.
18 Acknowledged by the Assembly in ICAO Assembly Res A18-11, ‘ICAO Position at the International Conference on the Problems of the Human Environment (Stockholm, June 1972)’ (1971) Doc 8958, 36, clause 2; development of the Action Program Regarding the Environment; establishment of the Committee on Aviation Environmental Protection (CAEP) in 1983.
19 Chicago Convention, ch VI—International standards and recommended practices; see Thomas Buergenthal, Law-making in the International Civil Aviation Organization (1st edn, Syracuse University Press 1969).
20 ICAO Assembly Res A16-3, ‘Aircraft Noise in the Vicinity of Airports’ (1968) Doc 8779, 30, which initiated work on Annex 16 calling for a conference on aircraft noise.
21 ICAO Assembly Res A18-11 (n 18).
22 See eg World Health Organization, Burden of Disease from Environmental Noise: Quantification of Healthy Life Years Lost in Europe (2011).
23 Other policies in this area include airport planning and community engagement.
24 Vol I contains chapters with different aircraft categories according to parameters such as year, type, and weight of the aircraft and maximum noise emission level set for each category.
25 Chicago Convention, annex 16, vol I, part II.
26 ICAO Assembly Res 33-7, ‘Consolidated statement of continuing ICAO policies and practices related to environmental protection’ (2001); ICAO, ‘Guidance on the Balanced Approach to Aircraft Noise Management’ (2nd edn, 2008) Doc 9829/AN.415.
27 The latest version of vol I is 8th edn, 2017.
28 Report by the Second CAEP Noise Technology Independent Expert Panel: Novel Aircraft—Noise Technology Review and Medium- and Long- Term Noise Reduction Goals, Doc 10017 (ICAO 2014).
29 See James Lees, Cait Hewitt, and Tim Johnson, ‘Aircraft Noise and Public Health: The Evidence is Loud and Clear’ (Aviation Environment Federation 2016).
30 Mathias Basner et al, ‘Aviation Noise Impacts: State of the Science’ Noise & Health, 19/87 (2017): 41.
31 Ricarda Bennett, ‘Airport Noise Litigation: Case Law Review’ Journal of Air Law and Commerce, 47/3 (1982): 449.
32 Claims based on violation of art 8 of the 1950 European Convention on Human Rights (ECHR) include Powell and Rayner v United Kingdom (Judgement) ECtHR (21 February 1990) Application no 9310/81; Hatton v UK (Judgement) Grand Chamber ECtHR (8 July 2003) Application no 36022/97. See ECtHR, ‘Guide on Article 8 of the Convention—Right to respect for private and family life’ (August 2019); Laura Cristiana, ‘Air Traffic and Aircraft Noise Pollution in the ECHR’s Case Law’ The Aviation & Space Journal, XVI/1 (2017): 47.
33 ICAO, ‘Environmental Report Aviation and Environment: Destination Green—The Next Chapter’ (2019) 81–84.
34 See Mauro Masiol and Roy Harrison, ‘Aircraft Engine Exhaust Emissions and Other Airport-Related Contributions to Ambient Air Pollution: A Review’ Atmospheric Environment, 95 (2014): 409.
35 Emissions considered by the ICAO’s standards are those released below 915 metres of altitude, however the control of emissions here could have a positive spill-over for atmospheric pollution, specifically for ozone depleting substances. Nonetheless, as with regards to air quality, the non-landing and take-off cycle emissions are considered to have a negligible effect on air quality, even in areas with heavy air traffic; see Huikyo Lee et al, ‘Impacts of Aircraft Emissions on the Air Quality Near the Ground’ Atmospheric Chemistry and Physics, 13/1 (2013): 689.
36 Other policies’ scope relate to emissions from airport sources, such as airport traffic, ground service equipment, and de-icing procedures.
37 ICAO Circular No 134, ‘Control of Aircraft Engine Emissions’ (1997).
38 Chicago Convention, annex 16, vol II, part III.
40 Environmental Technical Manual—Volume 2—Procedures for the Emissions Certification of Aircraft Engines, Doc 9501 (2nd edn, ICAO 2014).
41 Sebastian Eastham and Steven Barrett, ‘Aviation-Attributable Ozone as a Driver for Changes in Mortality Related to Air Quality and Skin Cancer’ Atmospheric Environment, 144 (2016): 17.
42 Masiol and Harrison (n 34).
43 Joyce Penner et al, Aviation and the Global Atmosphere (CUP 1999) 185; David Lee et al, ‘Transport Impacts on Atmosphere and Climate: Aviation’ Atmospheric Environment, 44 (2010): 4678; see also David Lee et al, ‘Aviation and Global Climate Change in the 21st Century’ Atmospheric Environment, 43 (2009): 3520.
44 This figure comes from the ICAO, and other studies have shown similar trends, see eg Bethan Owen et al, ‘Flying into the Future: Aviation Emissions Scenarios to 2050’ Environmental Science & Technology, 44/7 (2010): 2255; and more recently see Brandon Graver, Kevin Zhang, and Dan Rutherford, ‘CO2 Emissions from Commercial Aviation, 2018’ The International Council on Clean Transportation: Working Paper 2019-16 (2019).
46 Lee, ‘Transport Impacts’ (n 43); Lee, ‘Aviation and Global Climate Change’ (n 43); Owen (n 44); these studies suggested a contribution to global warming of between 3.5–4.9% to the global total.
47 Chapter 29, ‘Climate Change’, in this volume.
48 UNGA, ‘Matters relating to commitments: Methodologies for calculations/inventories of emissions and removals of greenhouse gases—Note by the secretariat’ (15 July 1993) UN Doc A/AC.237/34.
49 UNFCCC, arts 4.1(a), 12; 1997 Kyoto Protocol, art 7.
50 For reporting purposes, international aviation emissions are calculated on the basis of the country where the fuel is sold; see Farhana Yamin and Joanna Depledge, The International Climate Change Regime: A Guide to Rules, Institutions and Procedures (CUP 2004) 85–89.
51 Kyoto Protocol, art 2.2 states that ‘[T]he Parties included in Annex I shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively’.
52 Decision 4/CP.1, ‘Methodological Issues’ (6 June 1995) UN Doc FCCC/CP/1995/7/Add.1, para 1(f); see also Decision 2/CP.3, ‘Methodological Issues Related to the Kyoto Protocol’ (25 March 1998) UN Doc FCCC/CP/1997/7/Add.1, which recalls that aviation emissions are not to be included in national totals according to the IPCC guidelines and urges the SBSTA to elaborate on the inclusion of these emissions in the parties’ inventories.
53 Decision 1/CP.13, ‘Bali Action Plan’ (14 March 2008) UN Doc FCCC/CP/2007/6/Add.1, para 1(b)(iv).
54 Decision 2/CP.17, ‘Outcome of the Work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ (15 March 2012) UN Doc FCCC/CP/2011/9/Add.1, para 78.
55 UNFCCC, ‘Draft Agreement and Draft Decision on Workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (3 December 2015) para 20; ‘Draft Agreement and Draft Decision on Workstreams 1 and 2 of the Ad Hoc Working Group on the Durban Platform for Enhanced Action’ (4 December 2015) para 20; ‘Paris Outcome—Revised Draft Conclusions Proposed by the Co-Chairs’ (5 December 2015) UN Doc FCCC/ADP/2015/L.6/Rev.1, para 20.
56 On the consequences of this omission see Beatriz Romera, ‘The Paris Agreement and the Regulation of International Bunker Fuels’ Review of European Comparative & International Environmental Law, 25/2 (2016): 215.
57 On CBDR and aviation see Beatriz Romera and Harro van Asselt, ‘The International Regulation of Aviation Emissions: Putting Differential Treatment into Practice’ Journal of Environmental Law, 27/2 (2015): 259.
58 Chicago Convention, preamble, arts 11, 44(f), 44(g).
59 Since 1998 the ICAO has included GHG emissions in its work.
60 ICAO Assembly Res A37-19, ‘Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection—Climate Change’ (2010).
61 ICAO Assembly Res A38-18, ‘Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection—Climate Change’ (2013) 18–24.
62 ICAO Assembly Res A39-3, ‘Consolidated statement of continuing ICAO policies and practices related to environmental protection—Global Market-based Measure (MBM) scheme’ (2016); see further Ruwantissa Abeyratne, ‘Outcome of the 39th Session of the International Civil Aviation Organization Assembly’ Air and Space Law, 42/1 (2017): 13.
63 ICAO Assembly Res A39-3 (n 62) para 3.
64 Offset costs are likely be embedded as an additional fuel cost for airlines.
65 ICAO Assembly Res A39-3 (n 62) paras 9, 10.
67 Carsten Warnecke et al, ‘Robust Eligibility Criteria Essential for New Global Scheme to Offset Aviation Emissions’ Nature Climate Change, 9/3 (2019): 218.
69 ICAO, ‘2019 Environmental Report’ (n 33) 188–191.
70 Mark Staples et al, ‘Aviation CO2 Emissions Reductions from the Use of Alternative Jet Fuels’ Energy Policy, 114 (2018): 342.
71 Adopted in 2013, amended in 2017.
72 ICAO Assembly Res A38-18 (n 61) paras 11–15, 33(e).
74 Chris Lyle, ‘Beyond the ICAO CORSIA: Towards a More Climatically Effective Strategy for Mitigation of Civil-Aviation Emissions’ Climate Law, 8/1–2 (2018): 104.
75 Nik Pavlenko, ‘ICAO CORSIA Scheme Provides a Weak Nudge for In-Sector Carbon Reductions’ International Council on Clean Transportation (6 August 2018); Brandon Graver and Dan Rutherford, ‘U.S. Passenger Jets Under ICAO’s CO2 Standard, 2018–2038’ International Council on Clean Transportation (2 October 2018).
76 Roz Pidcock and Sophie Yeo ‘Analysis: Aviation Could Consume a Quarter of 1.5C Carbon Budget by 2050’ Carbon Brief (8 August 2016) and the figure would double if compliance with existing measures fails.
77 Some countries are introducing carbon taxes for aviation, like Sweden or the Netherlands. China might include aviation in its emissions trading system.
78 Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, OJ 2009 L 8/3.
79 Decision 377/2013/EU of 24 April 2013 derogating temporarily from Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community, OJ 2013 L 113/1.
80 Uwe Erling, ‘How to Reconcile the European Union Emissions Trading System (EU ETS) for Aviation with the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA)?’ Journal of Air Space Law, 43/4–5 (2018): 371.
81 Directive (EU) 2018/410 of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814, OJ 2018 L 76/3.
82 Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume.
83 Other instruments include the International Convention on the Control of Harmful Anti-Fouling Systems on Ships (2001) and the International Convention on the Removal of Wrecks (2007).
84 1973 International Convention for the Prevention of Pollution from Ships (MARPOL 73) as modified by the Protocol of 1978 (MARPOL 78). The Convention and the Protocol were merged into one legal instrument. The Protocol came after a series of disasters that proved a lack of uniform application of MARPOL 73. See further in Douglas Brubaker, Marine Pollution and International Law: Principles and Practice (Belhaven Press 1993) 122–129.
85 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and the 1996 Protocol to the London Convention.
86 2004 International Convention for the Control and Management of Ships’ Ballast Water and Sediments.
87 2009 Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships.
88 Except waste dumping, which is covered under the London Convention on Dumping and its Protocol.
90 Revisions to MARPOL are carried out by the adoption of resolutions at the Marine Environmental Protection Committee (MEPC) of the IMO.
91 See Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment (3rd edn, OUP 2009) 404.
92 Annex I, regulations 19–21.
93 IMO Res A.719(17), ‘Prevention of Air Pollution from Ships’ (6 November 1991).
94 Protocol of 1997 to amend MARPOL 73, as modified by MARPOL 78 (annex VI—Regulations for the Prevention of Air Pollution from Ships).
96 IMO, ‘Revised MARPOL Annex VI: regulations for the prevention of air pollution from ships and NOx technical code 2008’ (2009).
97 Colin de la Rue and Charles Anderson, Shipping and the Environment: Law and Practice (2nd edn, Informa Law 2009) 840–847.
98 MARPOL annex VI, regulations 13.8, 5.3.2; NOx Technical Code (n 96).
99 MARPOL annex VI, regulation 14—Sulphur Oxides and Particulate Matter. The limit was 3.5% and 0.5% for ECAs before the 2008 Revision.
100 Jesper Fanø, ‘Enforcement of the 2020 Sulphur Limit for Marine Fuels: Restrictions and Possibilities for Port States to Impose Fines Under UNCLOS’ Review of European, Comparative and International Environmental Law, 28/3 (2019): 278
101 2014 International Code for Ships Operating in Polar Waters (Polar Code), part II.
102 IMO Res MEPC.189(60), ‘Amendments to the annex of the protocol of 1978 relating to the international convention for the prevention of pollution from ships, 1973’ (26 March 2010) which added a new ch 9 to MARPOL annex I dealing with special requirements for the use or carriage of oils in the Antarctica area.
107 art 4, annex 1. The exception includes: dredged material; sewage sludge; fish waste; vessels, platforms or other man-made structures; inert, inorganic geological material; organic material of natural origin; bulky items; CO2 storage in sub-seabed geological formations.
108 IMO Res LP.3(4) ‘On the amendment to article 6 of the London Protocol’ (30 October 2009).
109 See Chapter 31, ‘The Protection of the Marine Environment: Pollution and Fisheries’, in this volume.
110 On implementation challenges see Stephan Gollasch and Matej David, ‘Ballast Water Management Convention Implementation Challenges’ Ocean Yearbook, 32/1 (2018): 456.
111 IMO Res A.868(20), ‘Guidelines for the control and management of ships’ ballast water to minimize the transfer of harmful aquatic organisms and pathogens’ (27 November 1997).
112 A total of fourteen guidelines ranging from sampling to reception facilities; see ‘Guidelines and Guidance Documents Related to the Implementation of the International Convention for the Control and Management of Ships’ Ballast Water and Sediments’ (2004).
113 IMO Res MEPC.300(72) ‘Code for approval of ballast water management systems’ (13 April 2018).
115 UN Conference on Trade and Development (UNCTAD), Review of Maritime Transport 2019, 37.
116 European Commission, ‘Ship Recycling: Reducing Human and Environmental Impacts’ Science for Environment Policy, 55 (June 2016): 3; Beaching occurs mostly in India, Bangladesh, Pakistan, and China.
117 See European Commission and Science for Environment Policy, ‘Ship recycling: reducing human and environmental impacts’ Thematic Issue 55 (June 2016).
119 See also Chapter 33, ‘Hazardous Substances and Activities’, in this volume.
120 Center for International Environmental Law, ‘Shipbreaking and the Basel Convention: Analysis of the Level of Control Established under the Hong Kong Convention’ (2011).
121 Basel Convention, Decision VII/26, ‘Environmentally sound management of ship dismantling’ (25 January 2005) UN Doc UNEP/CHW.7/33.
122 IMO, ‘Third IMO Greenhouse Gas Study 2014’ (2015).
123 Black carbon particles, emitted by ships burning heavy fuel oil in the Arctic, are potent short-lived pollutants that absorb sunlight and trap heat in the atmosphere, accelerating global warming in the Arctic region.
124 Farhana Yamin and Joanna Depledge, The International Climate Change Regime: a Guide to Rules, Institutions and Procedures (CUP 2004).
125 See Section III.B in this chapter.
126 IMO Res A.963(23), ‘IMO Policies and Practices Related to the Reduction of Greenhouse Gas Emissions from Ships’ (2004).
127 IMO Res MEPC.203(62), ‘Amendments to the annex of the protocol of 1997 to amend the international convention for the prevention of pollution from ships, 1973, as modified by the protocol of 1978 relating thereto (Inclusion of regulations on energy efficiency for ships in MARPOL Annex VI)’ (15 July 2011).
128 Minimum energy efficiency level per capacity mile for different ship type and size segments.
129 At the 74th session of MEPC in May 2019; see IMO, ‘UN agency pushes forward on shipping emissions reduction’ (20 May 2019).
130 Andreas Chrysostomou and Eivind Vågslid, ‘Climate Change: A Challenge for IMO Too’ in Regina Asariotis and Hassiba Benamara (eds), Maritime Transport and the Climate Change Challenge (Earthscan 2012) 75, 91–95.
131 ‘Report of the Marine Environment Protection Committee on its 62nd Session’ (26 July 2011) MEPC 62/24; China, Saudi Arabia, and South Africa opposed a regulation on GHGs with no consideration of the CBDRRC principle so the measures were adopted by resorting to a vote.
133 Chrysostomou and Vågslid (n 130) 81.
134 Less than 25% of the world’s fleet is flagged in the country the vessel is from.
135 IMO Res MEPC.229(65), ‘Promotion of Technical Co-Operation and Transfer of Technology Relating to the Improvement of Energy Efficiency of Ships’ (17 May 2013) annex 4.
136 IMO, ‘Reduction of GHG Emissions from Ships: Setting a reduction target and agreeing associated measures for international shipping’ (20 March 2015) MEPC 68/5/1.
137 Roadmap for developing a comprehensive IMO Strategy on reduction of GHG emissions from ships was approved at MEPC 70.
138 IMO Res MEPC.278(70), ‘Amendments to MARPOL Annex VI (Data collection system for fuel oil consumption of ships)’ (28 October 2016). The measure followed the adoption of a Monitoring, Reporting and Verification System in the EU; see ‘Regulation (EU) 2015/757 of 29 April 2015 on the monitoring, reporting and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC’ OJ 2015 L 123/55.
139 IMO Res MEPC.304(72), ‘Initial IMO Strategy on Reduction of GHG Emissions from Ships’ (13 April 2018).
140 Meinhard Doelle and Aldo Chircop, ‘Decarbonizing International Shipping: An Appraisal of the IMO’s Initial Strategy’ Review of European, Comparative and International Environmental Law, 28/3 (2019): 268.
141 IMO Res MEPC.323(74), ‘Invitation to member states to encourage voluntary cooperation between the port and shipping sectors to contribute to reducing GHG emissions from ships’ (17 May 2019).
