THE REGULATION OF AIRCRAFT ENGINE …digitool.library.mcgill.ca/thesisfile82666.pdfmy parents, Frederick and Sarah Nyampong and my mother in law Mrs. Comfort Sapong, for accepting

THE REGULATION OF AIRCRAFT ENGINE EMISSIONS FROM

INTERNATIONAL CIVIL AVIATION

By

Yaw Oto Mankata Nyampong

Institute of Air and Space Law

Faculty of Law

McGill University, Montreal

January 2005

A thesis submitted to the Faculty of Graduate and Postdoctoral Studies in partial

fulfillment ofthe requirements of the Degree of Master of Laws (LL.M.)

© Copyright, Yaw Otu Mankata Nyampong, 2005

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Regulation of Aircraft Engine Emissions from International Civil Aviation

ABSTRACT

Aircraft engine emlSSlOns from civil aviation cause several adverse effects to the

atmospheric environment. These emissions are among the known major contributors to

changes in atmospheric chemistry and global c1imate change. One way in which the

international community has responded to the problem has been the adoption of several

international treaties, generally dealing with subjects such as protection of the ozone

layer, long-range transboundary air pollution, and global c1imate change.

The other way in which the problem has been dealt with is the adoption of an industry

specifie international regulatory regime for controlling aircraft engine emissions from

civil aviation. In this regard, the international community has, through the law making

functions of the International Civil Aviation Organization (ICAO) , adopted the

mechanism of Standards and Recommended Practices (SARPs) to establish a regulatory

framework aimed at reducing environmentally harmful engine emissions. These SARPs,

though international in nature, are to be implemented at the national level by the member

states oflCAO.

This thesis provides a review of CUITent understanding of the effects of aircraft engine

emissions on the atmospheric environment and an analysis of the international responses

to the problem. In particular, it focuses on the industry-specific regime adopted by ICAO

and considers whether it is an effective tool for achieving a balance between the safe and

orderly development of civil aviation and the human environment.

1


RÉSUMÉ

Les émissions des moteurs d'aéronefs civils sont à la source de nombreuses conséquences

dommageables pour l'environnement atmosphérique. Ces émissions constituent l'un des

plus importantes causes du déséquilibre chimique atmosphérique et du réchauffement

climatique planétaire. L'une des solutions à ce problème mises de l'avant par la

communauté internationale consiste en l'adoption de plusieurs traités internationaux,

portant généralement sur des domaines tels que la protection de la couche d'ozone, la

pollution atmosphérique transfrontalière et le réchauffement climatique.

L'autre réponse internationale à ce problème environnemental se trouve dans la mise en

place d'un régime réglementaire international de contrôle des émissions des moteurs

d'aéronefs civils. Ainsi, par le biais du processus d'élaboration des normes et pratiques

recommandées de l'Organisation de l'aviation civile internationale (OACI), la

communauté internationale a posé des balises réglementaires visant à réduire l'impact

environnemental nocif des émissions des moteurs d'aéronefs. Bien que leur élaboration se

fasse dans un cadre international, la mise en œuvre de ces normes s'effectue au niveau

national par les États membres de l'OACI.

Ce mémoire passe en revue l'état des connaissances actuelles relatives à l'impact des

émissions des moteurs d'aéronefs sur l'environnement atmosphérique, de même que les

remèdes que la communauté internationale tente d'y apporter. Plus particulièrement, ce

mémoire analyse le régime réglementaire propre à l'industrie aérienne, issu de l'OACI, et

en évalue l'efficacité, eu égard à l'équilibre entre le développement sûr et ordonné de

l'aviation civile et la préservation de l'environnement.

11


ACKNOWLEDGEMENTS

I wish to express my deepest gratitude to Professor Paul Stephen Dempsey (Director,

Institute of Air and Space Law, McGill University) for devoting his time and attention,

and providing invaluable guidance, encouragement and support in the supervision of this

thesis. I am also extremely grateful to him for the research assistantship offered me

during the course of my studies at McGill University.

I express my sincere gratitude to Mr. George Agyemang Sarpong (G.A. Sarpong & Co.,

Accra, Ghana) without whom my studies at McGill would still be a dream. I especially

thank him for providing me with financial and material resources, inspiration, and

confidence to pursue graduate studies abroad. I am also indebted to Dr. Ruwantissa

Abeyratne (Air Transport Bureau, ICAO) for providing me with personal copies of

reports and other materials that were not available in any of the libraries. His efforts are

deeplyappreciated.

I wish to thank Mr. Michel Morin and Mrs. Helene Koonjbeharrydass (both of Library

Technical Services, Redpath Library, McGill University) as well as all my other

colleagues in the LTSlProcessing department for being helpful to me in many different

ways. I also wish to acknowledge Prof essors Katie Fallon and Giovani Burgos (Sociology

Department, McGill University) for their invaluable assistance to me in diverse ways. I

am grateful to my c1ass president Mr. Philippe de Grandmont for translating my abstract

into French at such short notice and also all my c1ass mates for making my time in

Montreal a rather memorable one.

Finally, I wish to express my deepest appreciation: to my dear wife, Emma Agyei

Dwarko, for accompanying me to Montreal and supporting me throughout my studies; to

my parents, Frederick and Sarah Nyampong and my mother in law Mrs. Comfort Sapong,

for accepting the difficult task of looking after my children; and to my twin daughters,

Yvonne and Yvette Nyampong, who had to literally suffer 'abandonment' at an early age

for the sake of my studies in Montreal. This thesis is entirely dedicated to them.

111


Annex 16 Volume II

CAEE

CAEP

CARFM

CDM

CERs

CFCs

Chicago Convention

CNS/ATM

CO

C02

COP

EASA

EC

EMEP

EPA

ERUs

ET

EU

FAA

FARs

FPC

GCAA

GDP

GEF

GHGs

GNP

LIST OF ABBREVIATIONS

International Standards and Recommended Practices,

Environmental Protection: Aircraft Engine Emissions

Annex 16 Volume II to the Chicago Convention.

Committee on Aircraft Engine Emissions

Committee on Aviation Environmental Protection

Conference on Airport and Route Facility Management

Clean Development Mechanism

Certified Emissions Reductions

Chlorofluorocarbons

Convention on International Civil Aviation, 1944

Communication, Navigation and Surveillance/Air Traffic

Management

Carbon Monoxide

Carbon Dioxide

Conference of the Parties

European Aviation Safety Agency

European Commission

Cooperative Programme for Monitoring and Evaluation

Environmental Protection Agency

Emissions Reduction Units

Emissions Trading

European Union

Federal Aviation Agency

Federal Aviation Regulations

Focal Point on Charges

Ghana Civil Aviation Authority

Gross Domestic Product

Global Environmental Facility

Greenhouse Gases

Gross National Product

IV

Regulation of Aireraft Engine Emissions from International Civil Aviation

H20

H2S04

HC

HSCT

IATA

ICAO

IFFAS

IMO

JI

kN

Kyoto Protocol

LRTAP

LTO

Montreal Protocol

NASA

NECs

NOx

PEMA

PSCs

SARPs

SARS

SBSTA

SIR

SOMA

SOx

TOMA

UK

UNIECE

UNCED

Water

Sulphuric Acid

Hydrocarbons

High Speed Civil Transport

International Air Transport Association

International Civil Aviation Organization

International Financial Facility for Aviation Safety

International Maritime Organization

Joint Implementation

Kilonewtons

Protocol to the United Nations Framework Convention on

Climate Change, 1997

Long-range Transboundary Air Pollution

Landing and Take Off cycle

Protocol on Substances that deplete the Ozone Layer, 1987

National Aeronautic and Space Administration

National Emissions Ceilings

Nitrogen Oxides

Pollutant Emission Management Area

Polar Stratospheric Clouds

International Standards and Recommended Practices

Severe Acute Respiratory Syndrome

Subsidiary Body on Scientific and Technological Advice

System for Implementation Review

Sulphur Oxide Management Area

Oxides of Sulphur

Tropospheric Ozone Management Area

United Kingdom

United Nations/Economic Commission for Europe

United Nations Conference on Environment and

Development

v


UNCLOS

UNEP

UNFCCC

USA

USAP

USOAP

UT/LS

UV

Vienna Convention

VOCs

WG

United Nations Convention on the Law ofthe Sea

United Nations Environment Programme

United Nations Framework Convention On Climate Change

United States of America

Universal Security Audit Programme

Univers al Safety Oversight Audit Programme

Upper Troposphere/Lower Stratosphere

Ultraviolet Radiation

Convention for the Protection of the Ozone Layer, 1985

Volatile Organic Compounds

Working Group

VI


TABLE OF CONTENTS

Abstract 1-11

Acknowledgements iii

List of Abbreviations IV-VI

Table of Contents V11-IX

Introduction ... . .. 1

Chapter 1 Aircraft Engine Emissions and the Environment ... 6

1.1 Preliminary Comments 6-9 1.2 Nature, Types and Sources of Aircraft Engine Emissions ... 9

1.2.1 Greenhouse Gases: ... 9 1.2.1.1 Carbon dioxide (C02) ... . .. 9 1.2.1.2 Water Vapor (H20) 10-11

1.2.2 Nitrogen oxides (NOx): Nitric oxide (NO) and Nitrogen dioxide (N02) ... 11-13

1.2.3 Sulphur oxides (SOx) ... . .. 14 1.2.4 Products of Incomplete Combustion: Volatile

Organic Compounds (VOCs), Hydrocarbons (HC), Carbon monoxide (CO) and Carbon Soot 14-15

1.3 Environmental Impact of Aircraft Engine Emissions .. . .. 15 1.3.1 Local and Regional Effects ... 15

1.3 .1.1 Air Pollution around Airports . . . 15-16 1.3 .1.2 Transboundary Air Pollution and Acid Rain ... 16-17

1.3.2 Global Effects ... . .. 17 1.3 .2.1 Changes in Atmospheric Ozone Concentration. . . 17 -18 1.3.2.2 Global Warming and Climate Change... 18-19

1.4 Conc1uding Remarks ... ... 19-20

Chapter 2 International Regulation of Aircraft Engine Emissions: General Treaty Regimes ... ... . .. 21

2.1 General Approaches to Environmental Regulation 21-23 2.2 Treaty Regimes on Long-Range Transboundary Air Pollution ... 23

2.2.1 The 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP Convention) ... 23-26

2.2.2 The 1985 Sulphur Protocol ... 26-27 2.2.3 The 1994 Sulphur Protocol ... 27-29 2.2.4 The 1988 NOx Protocol ... 29-31 2.2.5 The 1992 Protocol on Volatile Organic Compounds ... 31-33 2.2.6 The 1999 Protocol to Abate Acidification,

vu


Eutrophication and Ground-Ievel Ozone 2.2.7 The LRTAP Convention and its Protocols: An Evaluation 2.2.8 The 1991 USA-Canada Air Quality Agreement ...

2.3 International Treaty Regimes on Ozone Depletion and Global Climate Change ...

2.3.1 The 1985 Vienna Convention for the Protection of the Ozone Layer (Vienna Convention)

2.3.2 The 1987 Montreal Protocol on Substances that deplete the Ozone Layer (as subsequently amended and/or adjusted)

2.3.3 The 1992 United Nations Framework Convention on Climate Change (UNFCCC)

2.3.4 The 1997 Kyoto Protocol to the UNFCCC 2.4 Other Related Treaty Regimes

2.4.1 The 1982 United Nations Convention on the Law of the Sea (UNCLOS)

2.5 Conc1uding Remarks

Chapter 3 ICAO's International Standards and Recommended Practices (SARPs) addressing Aircraft Engine Emissions

3.1 Preliminary Comments 3.2 The Need for International SARPs addressing

Aircraft Engine Emissions 3.3 Enabling Provisions ofthe Chicago Convention ...

3.3.1 Definition of International Standards and Recommended Practices ...

3.3.2 The Making of International SARPs ... 3.3.3 Their "Becoming Effective" and "Coming into Force" 3.3.4 Notification of Differences by States ... 3.3.5 Implementation ofSARPs by Contracting

States and ICAO's Univers al Audit Programmes 3.4 Substantive Provisions of Annex 16 Volume II to the Chicago Convention: International SARPs on Aircraft Engine Emissions

3.4.1 Standards relating to Vented Fuel 3.4.2 Standards relating to Smoke and Gaseous Emissions ...

3.4.2.1 Engines intended for Subsonic Propulsion 3.4.2.2 Engines intended for Supersonic Propulsion ...

3.4.3 A Critique of the Regime Established by the Standards 3.5 Developments within ICAO since 1998 ...

3.5.1 Fourth Meeting of the Committee on Aviation Environmental Protection, 1998 (CAEP/4) ... 3.5.1.1 ProposaIs Relating to NOx Emissions

Certification Standards and the Amendment of Annex 16 Volume II

3.5.1.2 Emissions-related Levies

V111

33-35 35-37 37-38

. .. 39

39-41

41-43

44-46 46-49 ... 49

49-50 50-51

... 52

52-54

54-56 . .. 57

. .. 57 58-59 59-63 63-69

69-72

... 72 72-74 74-75 75-77 . .. 77 78-81 . .. 82

82-83

83-84 84-86


3.5.1.3 Future Work ofCAEP 86-87 3.5.2 Fifth Meeting of the Committee on Aviation

Environmental Protection, 2001 (CAEP/5) ... . .. 87 3.5.2.1 ProposaIs Relating to Emissions inc1uding

the Amendment of Annex 16 Volume II 87-89 3.5.2.2 Market-based Options for the Reduction

or Limitation of Emissions 89-93 3.5.2.3 Future Work ofCAEP ... 93

3.5.3 Sixth Meeting ofthe Committee on Aviation Environmental Protection, 2004 (CAEP/6) ... 93-94 3.5.3.1 ProposaIs Relating to Aircraft Engine

Emissions inc1uding the Amendment of Annex 16 Volume II 94-95

3.5.3.2 Market-based Options to Limit or Reduce Emissions ...

3.5.3.3 Future Work ofCAEP 3.6 Conc1uding Remarks

Chapter 4 Compliance, Implementation and Effectiveness of ICAO's International SARPs Addressing Aircraft Engine Emissions

4.1 Preliminary Comments 4.2 Systems for Implementation Review (SIRs) of

Annex 16 Volume II's Environment-Related SARPs 4.3 National Implementation of International

Commitments under Annex 16 Volume II 4.3.1 The Relationship between International

Standards and Municipal Law 4.3.2 Domestic Implementation of Annex 16

Volume II in the USA ... 4.3.3 Domestic Implementation of Annex 16

Volume II in E.U. Member States 4.3.4 Domestic Implementation of Annex 16

Volume II in Ghana 4.4 Conc1uding Remarks

Summary and Conclusions

Bibliography ...

IX

95-99 99-101 ... 101

... 102

102-105

105-108

108

108-110

110-113

113-117

117-118 119

120-122

123-133


INTRODUCTION

The international civil aviation industry has experienced tremendous growth over the past

few decades. Passenger traffic has grown since 1960 at nearly 9% per year, 2.4 times the

average Gross Domestic Product (GDP) growth rate. Freight traffic has also experienced

growth over the same period of time. 1 The rate of growth of passenger traffic however

slowed to about 5% in 1997 as the industry was maturing.2 In recent years, it slowed

again to about 4%, due to the terrorist events of September 11 th 2001 and the Severe

Acute Respiratory Syndrome (SARS) crisis that followed in 2002. The industry is

projected to experience further growth and expansion especially in developing countries

as personal incomes increase as a result ofincreases in Gross National Product (GNP).3

The technology for the propulsion of aircraft has also undergone massive improvements

over the years. As a result of improvements in aircraft technology, both in airframe and

engine design, performance and efficiency, the nature of the international commercial

fleet of aircraft has evolved and is expected to change further in the future.4 One factor

has remained unchanged in spite of the immense technological advancements. Aircraft

engines throughout the world continue to rely on the combustion of hydrocarbon (fossil)

fuels as a means of propulsion.

Though aviation fuel currently corresponds to 2-3% of the total fossil fuels used

worldwide, the aviation sector consumes 13% of the fossil fuel used in transportation, and

is thus the second biggest sector after road transportation, which consumes 80%.5

Presently, there is no commercially viable alternative means of propulsion in civil

aviation other than the combustion ofhydrocarbon fuels. Hydrogen fuel, which offers the

potential for eliminating direct carbon dioxide (C02) emissions, cornes with the expense

1 Joyce E. Penner et al., eds., Aviation and the Global Atmosphere: Special Report of the Intergovernmental Panel on Climate Change (Cambridge, UK: Cambridge University Press, 1999) at 3 [Penner]. z Ibid. 3 Anu Vedantham & Michael Oppenheimer, "Long-term Scenarios for Aviation: Demand and Emissions of COz and NOx" (1998) 26:8 Energy Policy 625 at 639 [Vedantham]. 4 G.P. Brasseur et al., "European Scientific Assessment of the Atmospheric Effects of Aircraft Emissions" (1998) 32 Atmospheric Environment 2329 [Brasseur]. 5 Penner, supra note 1 at 18.

1


of increased production of water vapor (H20), (also a greenhouse gas) and requires the

development and implementation ofnew technology and infrastructure.6

Any combustion of hydrocarbons in aircraft engines is directly coupled with the emission

of exhaust products such as C02, carbon monoxide (CO), water vapor, sulphur dioxide

(SOx), nitrogenous oxides (NOx) , unburnt hydrocarbons, soot and aerosols into the

atmosphere.7 Depending on the stage of flight of the aircraft and the altitude at which they

are emitted, these gaseous and particulate emissions have different local, regional and

global effects on atmospheric composition and chemistry and the environment in general.

Several assessments of the atmospheric effects of aircraft engine emissions have been

carried out wOrldwide,8 but a lot remains to be learned. Currently, the direct and indirect

atmospheric effects of sorne constituents of aircraft engine emissions are quite well

understood whereas a great deal of scientific uncertainty surrounds issues such as the

influence of contrails and aerosols on cirrus c1ouds; the ability of aerosols to alter

chemical processes in the atmosphere and the role ofNOx in changing atmospheric ozone

and methane concentrations among others.9

The international community has responded to the adverse atmospheric effects of aircraft

engine emissions in two ways. One approach has been to consider the effluents from

aircraft engines as part of anthropogenic substances that affect the environment and to

control their emission by way of international treaties and protocols generally governing

anthropogenic emissions. Notable among treaties conc1uded in this regard and of

particular relevance for present purposes are: the UNIECE Convention on Long Range

6 Ibid. at 26. 7 Andreas Dopelheuer, "Aircraft Emission Parameter Modelling" (2000) 2:3 Air & Space Europe 34 ,Dopelheuer ]. See Penner, supra note 1; Brasseur, supra note 4; NASA, Atmospheric Effects ofSubsonic Aircraft:

Interim Assessment of the Advanced Subsonic Technology Program by R.R. Friedl et al., (Washington, DC: National Aeronautics and Space Administration, 1997) [NASA, Reference Publication No. 1400]; NASA, Scientific Assessment of the Atmospheric Effects of Stratospheric Aircraft by R.S. Stolarski et al., (Washington, DC: National Aeronautics and Space Administration, 1995) [NASA, Reference Publication No. 1381]. 9 Penner, supra note 1 at 12.

2


Trans-boundary Air Pollution, 197910 and the Protocols adopted thereunder;ll the Vienna

Convention for the Protection of the Ozone Layer, 1985;12 the Montreal Protocol on

Substances that Deplete the Ozone Layer, 1988;13 the United Nations Framework

Convention on Climate Change, 1992;14 and the Kyoto Protocol to the United Nations

Framework Convention on Climate Change, 1997.15

The other approach has been to consider the issue of aircraft engine emissions as an

industry specific one and to address the problem through the International Civil Aviation

Organization (ICAO), the global organization responsible for the regulation of

international civil aviation. 16 Pursuant to this approach, ICAO has since 30th June 1981,

adopted and continually updated International Standards and Recommended Practices

(SARPs) on aircraft engine emissions17 in exercise ofits law making powers under article

37 of the Convention on International Civil Aviation, 1944.18 The SARPs contained in

Annex 16 Volume II calI "for the prevention of international fuel venting and establishes

10 Convention on Long-Range Transboundary Air Pollution, 13 November 1979,1302 U.N.T.S. 217 (entered into force 16 March 1983) [LRTAP Convention]. 11 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent, 8 July 1985, 1480 U.N.T.S. 215 (entered into force 2 September 1987) [1985 Sulphur Protocol]; Protocol to the 1979 Convention on LongRange Transboundary Air Pollution concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes, 31 October 1988, 28 I.L.M. 212 (entered into force 14 February 1991) [NOx Protocol]; Protocal to the 1979 Convention on Long-Range Transboundary Air Pollution concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes, 18 November 1991, 2001 U.N.T.S. 187 (entered into force 29 September 1997) [VOC Protocol]; Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction ofSulphur Emissions, 14 June 1994,33 I.L.M. 1540 (entered into force 5 August 1998) [1994 Sulphur Protocol]; Protocol to the 1979 Convention on Long-range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Ievel Ozone, 30 November 1999, UN ESC Doc.EB.AIR/1999/1 (not yet in force) [1999 Gothenburg Protocol]. 12 Conventionfor the Protection of the Ozone Layer, 22 March 1985, 1513 U.N.T.S. 293 (entered into force 22 September 1989) [Vienna Convention]. 13 Protocol on Substances that de pIete the Ozone Layer, 16 September 1987, 1522 U.N.T.S. 3 (entered into force 1 January 1989) [Montreal Protocol]. 14 United Nations Framework Convention on Climate Change, 9 May 1992, 1771 U.N.T.S. 107 (entered into force 21 March 1994) [UNFCCC]. 15 Protocol to the United Nations Framework Convention on Climate Change, Il December 1997, U.N. Doc. FCCC/CP/1997/7/Add. 1 at 7 (not yet in force) [Kyoto Protocol]. 16 Heather L. Miller, "Civil Aircraft Emissions and International Treaty Law" (1998) 63 J. Air Law & Corn. 697 at 721 [Miller]. 17 International Standards and Recommended Practices: Environmental Protection; Annex 16 to the Convention on International Civil Aviation, Volume II: Aircraft Engine Emissions, 2d ed. July 1993, [Annex 16 Volume Il]. 18 Convention on International Civil Aviation, 7 December 1944, 15 U.N.T.S. 295, art. 37 (entered into force 4 April 1947) [Chicago Convention].

3


standards for aircraft emissions control through an engine certification scheme.,,19 In

addition, "[ Annex 16] Volume II limits certain aircraft emissions through an engine

certification process, depending on the age and type of the aircraft, and establishes a

highly technical process for measuring emissions. The emissions controlled and kept

under review by ICAO are smoke, hydrocarbons, CO and NOx from new engines.,,20

Since initial concern about the adverse environmental effects of aircraft engine emissions

focused on local air quality in the vicinity of airports, the SARPs contained in Annex 16

Volume II are based on the landing and take-off cycle (LTO) and they control emissions

up to 3000 feet (915 meters) at and around airports?l The certification standards "do not

coyer other flight regimes, such as climb and croise, where the bulk of aviation's NOx

emissions occur.'.22 Furthermore, the SARPs contained in Annex 16 Volume II do not

address C02, S02, water vapor and trace compounds such as particulates, aerosols,

speciated hydrocarbons and other nitrogen compounds sometimes referred to as

unregulated emissions.23

International civil aviation is projected to grow in the coming years, and the increase in

aviation emissions attributable to growing demand for air travel likely will not be offset

by reductions in emissions achieved through technological improvements.24 Thus, there is

an urgent need to explore alternative means of limiting and/or reducing the adverse

impacts of aviation emissions on the environment and also to ensure that the industry is

environmentally sustainable. The main objective of this thesis is to set out, critically

analyze and evaluate the regulatory regime(s) adopted by the international community for

the control of aircraft engine emissions against the backdrop of current understanding of

the problem.

19 Miller, supra note 16 at 713. 20 Ibid. at 713-14; Annex 16 Volume II, supra note 17 at 6. 21 Léonie Dobbie, "ICAO Certification Standards for Aircraft Engine Emissions" (1996) XXI:2 Air & Space L. 62 at 67 [Dobbie]; see also Brasseur, supra note 4 at 2349. 22 Ibid. 23 Ibid. 24 Paul Stephen Dempsey, "Trade and Transport Policy in Inclement Skies: The Conflict Between Sustainable Air Transportation and Neo-Classical Economics" (2000) 65 J. Air L. & Corn. 639 at 644 [Dempsey]; see also Penner, supra note 1 at 3.

4


Chapter one sets the background by outlining the nature, types, sources and

environmental effects of gaseous and particulate emissions from aircraft engines in civil

aviation as presently understood. After providing an overview of the two general

approaches to environmental regulation adopted by the international community in

response to the problem of aircraft engine emissions, chapter two then discusses the

features, rules and obligations imposed on states by the various treaty regimes concluded

under the first approach. Chapter three focuses on the regulatory regime established by

the international SARPs addressing aircraft engine emissions adopted by ICAO, and the

enabling provisions ofthe Chicago Convention pursuant to which they were adopted.

Though international in nature, the SARPs are to be implemented at the nationallevel by

contracting states through national legislation. In order to assess the adequacy and

effectiveness of the international regulatory regime established by the SARPs, chapter

four will consider issues of compliance, implementation and effectiveness in relation to

the ICAO regulatory regime. A final section containing a summary of findings and

conclusions will then follow. On the basis of the observations made in the study,

proposaIs and/or recommendations aimed at engendering the achieving maXImum

compatibility between the safe and orderly development of civil aviation and the quality

of the human environment will be made in this section.

5


CHAPTERONE

AIRCRAFT ENGINE EMISSIONS AND THE ENVIRONMENT

1.1 Preliminary Comments

This chapter outlines the nature, types, sources and environmental effects of gaseous and

particulate emissions from aircraft engines in international civil aviation; the subject

matter of the regulatory regimes discussed in this study. It is not intended to provide a

detailed analysis of the science of air pollution and c1imate change resulting from aircraft

engine emissions, but rather to provide a factual background against which the legal rules

may be assessed.25 As one writer put it, "[u]nderstanding the aviation impact [sic] on the

state of the atmosphere is of fundamental importance for the future development of

aviation,,26 in a manner that balances its immense economic benefits to mankind against

its adverse effects on the environment.

International civil aviation as an industry produces gaseous and particulate emissions

from a number of sources, notably: aircraft engines, ground transport at airports and

support systems. The scope of this thesis is however limited to gaseous and particulate

emissions from aircraft engines since the other sources of emissions in civil aviation are

subject to different legal regimes. For instance, emissions from ground transport at most

airports around the world are regulated through national vehic1e emissions regimes and to

attempt an assessment of such regimes would be beyond the limits of this endeavor.

"From the perspective of aviation, the atmosphere may be divided into three altitude

zones: the boundary layer, the upper troposphere and the lower stratosphere .. .'.27 The

boundary layer averages about 1 kilometer in altitude at the mid latitudes and it is that

part of the atmosphere in which aircraft operate during their landing and take-off (LTO)

cyc1es.28 "Subsonic aircraft fly in the upper troposphere and lower stratosphere (at

altitudes of about 9 to 13 km), whereas supersonic aircraft cruise several kilometers

25 Phoebe N. Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford, U.K.: Oxford University Press, 2000) at 7 [Okowa]. 26 Ulrich Schumann, "Effects of Aircraft Emissions on Ozone, Cirrus Clouds, and Global Climate" (2000) 2:3 Air & Space Europe 29 [Schumann]. 27 Vedantham, supra note 3 at 625. 28 Ibid. at 626.

6


higher (at about 17 to 20 km) in the stratosphere".29 "Whereas the boundary layer is

typified by highly turbulent mixing and diurnally varying temperature and wind

conditions, the UT/LS [upper troposphere and lower stratosphere] is subject to

substantially less vertical mixing and little diurnal variation in meteorology".3o

Reactive gases and partic1es emitted in the boundary layer are mostly confined to the area

of release because they frequently encounter surface loss sites such as water and soil, and,

as a result, only a small portion of these species are transported upward into the relatively

c1ean upper troposphere and the lower stratosphere.31 Aircraft are currently the only

human-made in situ generators of gaseous and particulate emissions in the upper

troposphere and in the stratosphere.32 By directly emitting gaseous and particulate matter

into that part of the atmosphere, commercial aircraft bypass these surface loss sites, and

thus constitute a significant source of pollutants in the upper atmosphere.33

Presently, jet aircraft, which cruise for the most part in the upper troposphere and the

lower stratosphere at subsonic speed, constitute the greater part of the worldwide

commercial fleet. 34 Until recently, a small European fleet of 13 Concorde aircraft was in

commercial operation, flying at supersonic speeds at cruising altitudes of 16.5 km.

Following the fatal crash of an Air France Concorde on July 25th 2000, the fleet of 13

Concorde aircraft was retired from commercial operations. 35 ProposaIs for the

development of a fleet of second-generation supersonic High Speed Civil Transport

(HSCT) aircraft have remained in the pipeline shrouded by considerable uncertainty.36

"The modem high-performance gas turbine 'jet' engine that is used to power typical

commercial... aircraft is essentially a continuous-flow heat engine operating at constant

29 Penner, supra note 1 at 3. 30 NASA, Reference Publication No. 1400, supra note 8 at 1. 31 Ibid. 32 Vedantham, supra note 3 at 625. 33 NASA, Reference Publication No. 1400, supra note 8 at 1. 34 Brasseur, supra note 4 at 2329. 35 BBC World News, online: <http://news.bbc.co.ukI2/hi/europe/851209.strn> (date accessed: 14 August 2004); see also <http://www.concordesst.comlretire/announcements.htrnl > (date accessed: 14 August 2004). 36 Penner, supra note 1 at 9; Vedantham, supra note 3 at 625.

7


pressure. It uses air as its working fluid to generate the thrust to propel the aireraft

through the atmosphere".37 The design concept of jet engines has advanced from the

simple turbojet through the low bypass ratio engines of the 1960s to the large, high

bypass ratio engines of the 1970s and 1980s. These developments in teehnology have led

to improved engine cycles, resulting in higher internaI engine temperatures and pressures

with concurrent improvements in thermal and propulsive efficiencies and fuel economy.38

These improvements in technology notwithstanding, the combustion process in jet

engines results in the emission of primary products such as CO2 and water vapor, the

exact proportions of which depend on the specifie fuel carbon-hydrogen ratio, as weIl as

secondary products including CO, hydrocarbons, NOx and soot/ particulates which vary

according to combustor design, operating temperatures and pressures.39 Figure 1 shows

typical emissions index (El) levels for aircraft engine-operating regimes as generaIlY

accepted in several scientific assessments of the problem.

Species Idle

C02 3160 H20 1230 CO 25 (10-65) HC (as methane) 4 (0-12) NOx (as N02) 4.5 (3-6)

4.5 (3-6) SOx (as S02) 1.0

Operating condition

Take-off Cruise

3160 3160 1230 1230

<1 1-3.5 <0.5 0.2-1.3 32 (20-65) 7.9-11.9 27 (10-53) 11.1-15.4

1.0 1.0

Comments

(Short haul) (Longhaul)

Figure 1. Typical emissions index levels for aircraft engine-operating regimes expressed in grams of pollutant emitted per kilogram of aviation fuel burned.40

37 Brasseur, supra note 4 at 2350. 38 Ibid.; see also NASA, Global Atmospheric Effects of Aviation: Report of the Proceedings of the Symposium held at Virginia Beach, Virginia USA 15-19 April 1996 by D.L. Albritton et al., (Washington, DC: NASA Office of Aeronautics and Space Transportation Technology, May 1997) at Il [Albritton, NASA Symposium]. Thermal efficiency is defined as the efficiency of the conversion of the fuel energy into kinetic energy by combustion and this is determined by the engine cycle pressure ratio and combustion temperature. Propulsive efficiency is defined as the conversion of the kinetic energy into real propulsive work. Combustion efficiency represents the completeness of the chemical conversion of fuel into products (C02 and H20 for a hydrocarbon fuel). This is controlled by the combustion temperature, pressure and residence time. 39 Brasseur, ibid. at 2350-51. 40 Ibid. at 2354. The Emission Index (El) is defmed as the weight ratio ofpollutant emitted to fuel burned in gramslkilogram. See Vedantham, supra note 3 at 635-36.

8


The nature, types, sources and environmental effects of these emissions from jet engines

are considered in the following sections ofthis chapter.

1.2 Nature, Types And Sources Of Aircraft Engine Emissions

1.2.1 Greenhouse Gases

In the combustion process, the fuel - aviation kerosene - is sprayed at high pressure into

the combustion chamber of the jet engine, where it mixes with the hot, high pressure air

supplied by the compressor and is ignited. The primary products of this process are CO2

and water vapor.41 These emissions are characterized as greenhouse gases because when

emitted into the atmosphere, they enhance the naturally occurring greenhouse effect by

trapping the outgoing infrared radiation from the earth's surface, thereby contributing to

the warming of the Earth's atmosphere. "The greenhouse effect is a natural phenomenon

that warms the earth, enabling it to support life. Without it, the temperature of our planet

would be a frozen -180 Celsius (C), rather than the CUITent average of +150 C".42 The

greenhouse effect is predicted by sorne to cause a warming of the earth's atmosphere

leading to the melting of the polar ice caps and flooding of low lying land masses.

1.2.1.1 Carbon dioxide (C02):

It is estimated that the CUITent worldwide fleet of aircraft produces only 2-3% of the fossil

fuel C02 released into the atmosphere.43 Thus, the impact of aviation on the greenhouse

effect through CO2 is expected to be limited. However, "[a] major driver of the

environmental concems about emissions from aircraft is not so much the burden from the

CUITent fleet but the potential future burdens, in view of the historic rapid expansion and

projected continuing high future growth rates".44

As shown in figure 1, the combustion of one kilogram of aviation kerosene directly

results in the emission of about 3160 grams of C02 into the atmosphere.45 C02 is believed

to have a very long atmospheric residence time (approximately 100 years) and the CO2

41 Brasseur, ibid. at 2350. 42 Dempsey, supra note 24 at 649. 43 Penner, supra note 1 at 6; Brasseur supra note 4 at 2330. 44 Albritton, NASA Symposium, supra note 38 at 16. 45 See also Dopelheuer, supra note 7 at 34.

9


emitted from aircraft becomes well mixed with, and indistinguishable from, the CO2 from

other fossil fuel sources. Their atmospheric effects being the same, scientific studies so

far have been unable to quantify the specifie amount of radiative forcing46 attributable to

aircraft emissions of CO2•47

What is known, however, is that the altitude of emission is not relevant in determining the

influence of CO2 from aviation on the greenhouse effect.48 Since the effect of CO2 on

climate change is direct and depends simply on its atmospheric concentration,49 aviation

emissions of CO2 would continue to be a matter of environmental concem in view of the

projected growth rates in the coming years.

1.2.1.2 Water Vapor (H20):

Water vapor is the other primary product of combustion in jet engines. Unlike CO2

however, the altitude of emission of water vapor influences its effect on the atmosphere.

"Water vapor emissions by aircraft can potentially perturb climate in two different ways.

First, water vapor is a radiatively active gas, and hence additional water vapor in the

atmosphere can directly modify the radiative budget"SO by enhancing the greenhouse

effect. The potential climatic effect of water vapor emissions by aircraft in this regard

depends on the relative contribution of these emissions to the background water vapor

level in the atmosphere. As the natural water vapor concentration decreases with

increases in altitude, this effect is expected to be larger for high-flying aircraft than for

flights at lower levels. s1

Secondly, emissions of water vapor from aircraft engines, in association with soot and

sulphur compounds, form condensation nuclei and trigger additional cloud formation in

46 "The concept of radiative forcing is a measure of the importance of a potential clirnate change mechanism. It expresses the perturbation or change to the energy balance of the Earth-atmosphere in watts per square meter. Positive values of radiative forcing irnply a net warming, while negative values irnply cooling". See Penner, supra note 1 at 3, n. 4. 47 Ibid. at 3,21. 48 Vedantham, supra note 3 at 625. 49 Penner, supra note 1 at 21. 50 Brasseur, supra note 4 at 2401. 51 Ibid.

10


the atmosphere, which, in turn, indirectly contributes to radiative forcing and climate

change. 52 Condensation nuclei forms when soot particles present in aircraft exhaust

emissions are activated by sulphuric acid aerosol also present in aircraft exhaust

emissions. Once activated, these particles attract and condense water vapor growing in

size until clouds are formed.53 These clouds, known as Condensation Trails or simply

Contrails, may be short-lived or persistent in the atmosphere depending on the

background temperature and humidity levels.54 If the air is supersaturated with water and

the ambient temperature is below freezing point, this process results in the formation of

persistent contrails, which, as the name implies, have longer residence periods in the

atmosphere.55

Debate continues amongst scientists about the climatic impact of water vapor and

contrails.56 As one source put it " ... experiments show that the present contrails coverage

(less than 2%) [of the surface of the Earth] leads to localized change of climate, but the

experiments also show that contrails have the potential to significantly modify the climate

oflarge areas.,,57 Recent research suggests that contrails contributed to a 0.27° Celsius per

decade warming trend in the United States between 1975 and 1994, and also that contrails

are one of the precursors to the formation of thin cirrus clouds whose effect tend to be a

warming of the Earth' s surface. 58 Water vapor is further considered important in

determining the radiative balance and chemical composition of the atmosphere because it

plays a dramatic role in polar ozone loss through the formation of polar stratospheric

clouds (PSCS).59

52 Ibid. 53 R.C. Brown et al., "Aireraft Sulfur Emissions and the Formation of Visible Contrails" (1997) 24:4 Geophysieal Researeh Letters 385 at 385-86 [Brown, Sulphur Contrails]. 54 A.W. Brewer, "Condensation Trails" Weather 1 (June 1946) 34 [Brewer]. 55 Ibid. at 37-38; see also Brasseur, supra note 4 at 2402. 56 Dempsey, supra note 24 at 650. 57 Brasseur, supra note 4 at 2403. 58 Dave Sehleek "High Fliers rnay be Creating Clouds: Global Wanning rnay be W orsened by Contrails from Aireraft" The {Montreal] Gazette, (Sunday July 18, 2004), IN6 [Sehleek]. 59 Penner, supra note 1 at 22.

11


1.2.2 Nitrogen Oxides (NOxJ

"Because air contains 78% nitrogen and 21% oxygen, oxides of nitrogen are readily

fonned by the direct reaction of these elements in high-temperature combustion

processes ... ,,60 such as those which occur in aircraft jet engines. These combustion

processes produce several oxides of nitrogen, but of particular relevance to this study are

nitric oxide (NO) and nitrogen dioxide (N02), altogether tenned nitrogen oxides (NOx).

This is due to the fact that NOx are very influential in the chemistry of the troposphere

and the stratosphere and are particularly important in ozone production and destruction

processes.61

Ozone is a naturally occurring gas in the atmosphere the bulk of which (about 80-90%)

resides in the stratosphere where it is produced in situ by the reaction of oxygen

molecules and ultraviolet (UV) radiation from the sun in a process known as

photodissociation. Dynamic chemical reactions in a pollution-free atmosphere ensure a

balance between the production and destruction of ozone, which leads to a steady state of

abundance of the gas in the stratosphere.62 Commonly referred to as the Ozone Layer,

ozone in the stratosphere perfonns two important functions. It acts as the shield that

protects the biological system on the Earth's surface from the damaging UV radiation

from the sun. In addition to its role as a UV filter, ozone acts as a greenhouse gas and its

efficiency in this role depends on its altitude and latitude.63

Sorne ozone is present in the troposphere as weIl and scientific assessments suggest that a

large fraction of this tropospheric ozone is photochemically produced in situ, a process

heavily influenced by human activity especially in the lower troposphere. Photochemical

production of ozone in the troposphere involves the slow oxidation of ingredients such as

NOx, hydrocarbons and Carbon monoxide, the by-product being ozone.64 Even though

part of the tropospheric ozone is transported from the stratosphere, NOx emissions from

60 Environment Canada, Canadian Perspectives on Air Pollution by J. Hilbom & M. Still (Ottawa: State of the Environment Reporting, September 1990) at 34 [Environment Canada]. 61 Penner, supra note 1 at 23. 62 Albritton, NASA Symposium, supra note 38 at 20-21. 63 Ibid. 64 Ibid. at25.

12


aircraft "are the primary emissions that can induce a change in tropospheric ozone via

photochemical production ... hence, aircraft emissions can have a substantial effect.,,65

This is particularly so because aircraft are the only anthropogenic sources of NOx

emissions in the upper troposphere. As impressively stated by one source, " ... although

the total mass of NOx ••• emitted from aircraft is relatively small compared to other

sources, the altitude at which it is emitted is important in terms of its atmospheric

impacts. ,,66

Whereas high concentrations of NOx in the upper stratosphere tend to decrease

stratospheric ozone above 20 km, inputs of NOx into the lower stratosphere and upper

troposphere (i.e. below 20 km) are thought to protect and even increase the ozone

column.67 NOx emissions from the CUITent fleet of aircraft are calculated to have increased

ozone concentration by about 6% in the region 30-60oN latitude and at 9-13km altitude.68

This region coincides with the North Atlantic flight corridor where the greater part of the

commercial fleet cruise. This gives further credence to the fact that NOx emissions from

aviation have a profound effect upon atmospheric ozone. However, this does not explain

the fact that the ozone hole is in the southem hemisphere.

Apart from their profound effects on ozone, NOx emissions below cloud level are washed

out of the atmosphere as acid rain.69 In this regard, NOx emissions from aviation

contribute towards acid deposition, a problem that may assume local, regional and/or

transboundary proportions depending on how far the elements are carried before

deposition occurs. This aspect of the problem is discussed below.7o NOx also reduces the

atmospheric lifetime and concentration of carbon monoxide (CO) ·and methane, another

65 Ibid. at 27. 66 R.M. Gardner et al., "The ANCAT/EC Global Inventory ofNOx Emissions fromAircraft" (1997) 31:12 Atmospheric Environment 17 51 [Gardner]. 67 Transport Canada, The Greening of Aviation by J.L. Cornish, J.A. Nicell & A.D. Groenewege (Montreal, QC: Transportation Development Centre, January 1996) at 28 [Transport Canada, Greening]; see also Paul J. Crutzen & Christoph Brüh1, "The Atmospheric Chemical Effects of Aircraft Operations" in Ulrich Schumann, ed., Air Traffic and the Environment - Background Tendencies and Potential Global Atmospheric Effects: Proceedings of a DLR International Colloquium, Bonn, Germany, November 15-16, 1990 (Berlin: Springer-Verlag, 1990) 96 at 99[Crutzen]. 68 Penner, supra note 1 at 31. 69 Transport Canada, Greening, supra note 67 at 28. 70 See section 1.3.1.2 below.

13


greenhouse gas,71 and are very influential in the formation ofPSCs through the activation

ofinert chlorine elements in the polar stratosphere.72

1.2.3 Sulphur Oxides (SOJ

Standard aviation kerosene contains sorne amount of sulphur which, on the average,

typically constitutes only about 0.04-0.05% of the jet fuel. 73 The oxidation of the fuel

sulphur in the combustion process leads primarily to the production of sulphur dioxide

(S02), which further reacts with other species in the exhaust plume to produce sulphur

trioxide (S03) and possibly, sulphuric acid (H2S04).74 These oxides of sulphur can affect

the atmosphere by increasing sulfate aerosollevels, thereby enhancing the heterogeneous

processing of nitrogen oxide and halogen reservoir gases, and by activating carbon soot

partic1es to form condensation nuc1ei, thereby seeding the formation of contrails and

cirrus c1ouds.75

Fuel sulphur could be completely removed from jet fuel. However, since aviation fuel is

only a small fraction of refinery output and, as such, would require costly special

treatment to completely remove its sulphur content, this is not being done presently.

Moreover, sulphur in jet fuel currently serves as a valuable lubricant in the fuel system.

Its removal would require the use of another agent at additional COSt.76

1.2.4 Produets of Ineomplete Combustion

Aircraft engines emit a number of effluents as a result of the incomplete combustion of

fuel. These effluents inc1ude: volatile organic compounds (VOCs) such as benzene,

toluene, formaldehyde and l ,3-butadiene; 77 non-methane hydrocarbons (HC) such as

alkenes, alkines, aldehydes and aromates;78 carbon monoxide (CO) and carbon soot

71 Penner, supra note 1 at 44. 72 Sophie Savin, The Environmental Impact of Aeronautical Activities: Legal Aspects (LL.M Thesis, Institute of Air and Space Law, McGill University, 1993) [unpublished] at 22-23 [Savin]. 73 Albritton, NASA Symposium, supra note 38 at 14. 74 R.C. Brown et al., "Aircraft Exhaust Sulfur Emissions" (1996) 23:24 Geophysical Research Letters 3603 [Brown, Sulphur Emissions]; Brasseur, supra note 4 at 2360; Penner, supra note 1 at 70. 75 Brown, Sulphur Emissions, ibid. See also Albritton, NASA Symposium, supra note 38 at 35-36. 76 Albritton, NASA Symposium, ibid. at 14. 77 Dempsey, supra note 24 at 645. 78 Penner, supra note 1 at 71.

14


(smoke). Whereas HC and CO are primarily generated at low engine power levels as in

idling and taxiing, soot is produced at high engine power levels as in take off and climb

OUt.79 The quantity ofincomplete combustion products emitted by any aircraft engine into

the atmosphere depends on the combustion efficienclo of the engine.

The products of incomplete combustion affect the atmosphere in a varied number of

ways, but their effects are mostly localized. For instance, CO is a common irritant when

emitted as a surface level pollutant. 800t and unburnt hydrocarbons are mainly

responsible for poor air quality and smog around airports. Indeed, initial concern about

the atmospheric impact of air transport focused on these and other localized

environmental problems.81 As shall be seen later in this study, environmental regulation

both at the national and international levels has followed the same trend. The focus has

now shifted to the broader issues of global climate change and stratospheric ozone

depletion. It remains to be seen whether environmental regulation has followed suit. The

environmental impacts of aircraft engine emissions are discussed in the next section of

this chapter.

1.3 Environmental Impact Of Aircraft Engine Emissions

1.3.1 Local and Regional Effects

1.3 .1.1 Air Pollution around Airports

"The degree to which aircraft exhaust emissions can exert an influence on the atmosphere

[and the environment82 in general] is largely determined by the magnitude of

perturbations to ambient levels and the effects of those perturbations on critical chemical

and/or climatic processes.,,83 In the vicinity of airports, emission of gaseous and

particulate combustion byproducts from aircraft jet engines during their L Ta cycles was

79 Albritton, NASA Symposium, supra note 38 at 12. 80 Supra note 38. 81 Albritton, NASA Symposium, supra note 38 at 10; see also Dobbie, supra note 21 at 67. 82 'Environment', as used here, refers to all natural as well as man-made surroundings on the surface of the earth. See Rajan Marathe, Impact of Aviation on the Environment (M. Sc. Project Report, Department of Civil EngineerirIg and Applied Mechanics, McGill University, 1995) [unpublished] at i [Marathe]. 83 NASA, Reference Publication No. 1400, supra note 8 at 29.

15


recognized long ago as a possible contributor to urban smoke problems and

photochemical smog generation.84

Emissions of carbon monoxide from jet engines are highest when the aircraft is idling at

the airport.85 When inhaled, CO, which is without smell, combines with haemoglobin in

blood to form carboxyhaemoglobin, which immediately reduces the oxygen carrying

capacity of blood.86 This may result in death of humans and animaIs at very high

concentrations.87 Pollutants like S02 and ground level ozone cause odour problems at

airports and surrounding areas in addition to the strong stench from aviation kerosene.

They can also irritate lungs, reduce resistance to infection, and aggravate heart disease,

asthma and bronchitis.88 Soot contributes to the formation of smog and hazes in urban

areas, which reduce visibility and eventually soil and destroy the aesthetic value of

buildings and other property in the vicinity of airports. Hydrocarbons like benzene which

are emitted from aircraft engines are carcinogenic89 and persistent human exposure to

them is fatal. The contribution of aircraft engine emissions to all these local

environmental effects cannot be underestimated.

1.3.1.2 Transboundary Air Pollution and Acid Deposition

Long-range transboundary air pollution has been defined as:

"[A]ir pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such distance that it is not generally possible to distinguish the contribution of individual emission sources or group of sources. ,,90

The pollutants responsible for transboundary air pollution have the capacity to remain

airbome for several days and travel over thousands of kilometers before being deposited.

Notable species in this regard are oxides of sulphur and nitrogen, which are the main

84 Ibid. at 1. 85 See figure 1 above. 86 Alan Wellburn, Air Pollution and Climate Change: The Biological Impact, 2nd ed. (Harlow, UK: Longman, 1994) at 202 [Wellburn]. 87 Savin, supra note 73 at 21. 88 Dempsey, supra note 24 at 651. 89 Savin, supra note 73 at 21. 90 LRTAP Convention, supra note 10, art. 1(b).

16


precursors to secondary pollutants that damage the environment.91 Once emitted into the

atmosphere, SOx and NOx species are oxidized to form sulphates and nitrate particles

respectively, which then precipitate independently into a dry fall or combine with cloud

vapors to form sulphuric and nitric acids, precipitating subsequently as snow or rain into a

wet faU. 92 Dry faUs tend to be localized whereas acidic wet falls may take place at

considerable distances away from the original source of emissions.93

Although it has been suggested by sorne authors that aircraft engine emissions make only

a very miniscule contribution to long-range pollution,94 the fact that aircraft are non

stationary sources of these species and also that aircraft emit them directly into the

atmosphere at altitude increases their capacity to remain in the atmosphere for longer

periods and to be transported over longer distances.

Acid deposition has deleterious effects on forests and wetlands.95 Acidification of

watercourses has dramatic effects on fish populations; acid deposition in forests areas

causes leaching of plant nutrients leading to a reduction in forest productivity, especially

at altitudes above 600 meters.96 Acid deposition can also accelerate corrosion of metals

and erosion of stone. In the case of monuments and historical buildings, particularly those

built from limestone and marble, the corrosive effect of acid rain tends to be very

destructive. 97

1.3.2 Global Effeets

1.3.2.1 Changes in Atmospherie Ozone Concentration

Emissions ofNOx by aircraft in the UT/LS increase ozone concentrations in those regions

of the atmosphere whereas similar emissions in the upper stratosphere tend to deplete

91 Okowa, supra note 25 at 11-12. 92 Ibid. at 12-13. 93 Ibid. 94Ruwantissa I.R. Abeyratne, "Aircraft Engine Emissions and Noise" (1994) 24 Envtl. Pol'y & L. 238 at 239 [Abeyratne, Emissions and Noise]. 95 Dempsey, supra note 24 at 651. 96 Derek M. Elsom, Atmospheric Pollution: A Global Problem, 2d ed. (Oxford, UK.: Blackwell, 1992) 96, 99-100 [Elsom]. 97 Ibid. at 105-06.

17


ozone, partially offsetting the NOx-induced increases in ozone in the UT/LS. The degree

to which this occurs is, as yet, not quantified.98 However, it is estimated that aircraft in

1992 decreased the erythemal dose rate99 of solar ultraviolet radiation reaching the

surface of the earth by about 0.5% at 45°North in July of that year. IOO For purposes of

comparison, the calculated increase in the erythemal dose rate due to observed ozone

depletion was about 4% over the period 1970 to 1992 at 45°North in July. The net effect

of subsonic aircraft therefore appears to be an increase in column ozone and a decrease in

UV radiation reaching the surface of the earth.101

The foregoing assessment is however confined to the present commercial fleet of

subsonic aircraft whose emissions occur mainly in the UT/LS. The situation is expected

to be completely different with the development of a fleet of second-generation

supersonic, high speed civil transport (HSCT) aircraft. Though there is considerable

uncertainty about whether or when such a fleet will be developed, HSCT aircraft are

projected to cruise in the stratosphere and their NOx emissions are expected to reduce

stratospheric ozone and increase the erythemal dose rate. 102 Increased UV radiation is

detrimental to human health because it causes a suppression of the immune system,

premature skin aging, increased occurrences of sunburn, skin cancer and cataracts. It also

reduces the growth rate of forests and the productivity of crops such as wheat, rice, corn,

and soya beans; and, as weIl, disrupts aquatic life near the surface ofthe ocean. 103

1.3.2.2 Global Warming and Climate Change

Apart from its influence on the erythemal dose rate of UV radiation reaching the surface,

changes in atmospheric ozone also influence the greenhouse effect, global warming and

c1imate change alongside changes in atmospheric concentrations of C02 and water vapor.

These elements act as greenhouse gases, trapping outgoing long wave radiation emitted

98 Penner, supra note 1 at 6. 99 The erythemal dose rate is defined as UV irradiance, weighted according to how effectively it causes sunburn. See ibid. at 9. 100 Ibid. lOI Ibid. 102 Ibid. 103 Environment Canada, supra note 60 at 70.

18


from the earth's surface and warming the atmosphere. There is increasing evidence that

the accumulated concentration of these gases in the earth's atmosphere are leading to a

change in the equilibrium of the earth's c1imatic system. 104 As one source put it,

... in the 20th century, global surface temperature has increased by 0.6 ± 0.2°C and the average sea level has risen by 0.1 to 0.2 metres. Snow cover has decreased by 10 per cent since the 1960s and precipitation regimes have changed. Droughts have increased in Asia and Africa. Indeed, there is a growing volume of empirical evidence of the implications of the enhanced greenhouse effect, not only in the weather but also in ecosystems. 1

05

It is estimated that if the CUITent rate of C02 pollution continues, average global

temperatures will rise by 1.5° to 4.5°C over the next 40-50 years. If average global

temperature rises by 3°C, the Antarctic and Greenland ice caps would partially melt and

ocean water would exp and, raising the sea level between 30 and 150 centimeters.106 This

would in turn lead to the inundation of low-lying landmasses and islands. Reductions in

the emission of greenhouse gases are therefore imperative and emissions from

international civil aviation are by no means excused in this regard.

1.4 Conclu ding Remarks

The objective of this chapter has been to outline the nature, sources, types and

environmental effects of aircraft engine emissions as reflected by the CUITent level of

scientific understanding of the problem. Although the environmental effects of some

species are presently very well understood, there is significant scientific uncertainty about

the environmental impacts of other constituents of aircraft engine emissions, and further

work is urgently required in that direction.107 Notwithstanding the inadequacy of the

\04 Joyeeta Gupta & Richard S.J. ToI, "Why Reduce Greenhouse Gas Emissions? Reasons, Issue-linkages and Dilemmas" in Ekko C. van Ierland, Joyeeta Gupta & Marcel T.J. Kok, eds., Issues in International Climate Poliey: Theory and Poliey (Cheltenham, UK: Edward Elgar, 2003) 17at 18-19 [Gupta, Greenhouse Gas Emissions]. lOS Ibid. at 19. 106 Dempsey, supra note 24 at 651. \07 Penner, supra note 1 at ix. Five key are as of scientific uncertainty identified in this report are: (i) the influence of contrails and aerosols on cirrus c1ouds; (ii) the role ofNOx in changing ozone and methane concentrations; (iii) the ability of aerosols to alter chemical processes; (iv) the transport of atrnospheric gases and partic1es in the upper troposphere/lower stratosphere; and (v) the c1irnate response to regional forcings and stratospheric perturbations.

19


CUITent state of knowledge, the international community has, in accordance with the

precautionary princip le, adopted sorne legal and/or regulatory regimes aimed at reducing

or minimizing the adverse environmental impacts of aircraft engine emissions. These

regimes are considered in the next two chapters ofthis study.

20


CHAPTERTWO

INTERNATIONAL REGULATION OF AIRCRAFT ENGINE EMISSIONS:

GENERAL TREATY REGIMES

2.1 General Approaches to Environmental Regulation

Three general approaches may be adopted in the regulation of international pollution. The

first general approach is the market approach, which essentially would leave

environmental protection decisions to individual decision makers in the market place. The

second general approach is the remedial approach, which focuses on remedying

environmental harm after it has occurred, inc1uding compensating persons who suffer

personal or property damage as a result of the pollution. The third general approach is

referred to as the regulatory approach. This approach focuses on preventing pollution

before it occurs and on attempting to manage the environment more generally.108

These approaches, which have markedly different implications for the content of the

resulting legal norms adopted thereunder, appear in efforts to deal with international

pollution problems at the unilateral, bilateral, regional, multi-state and globallevels. l09 At

all levels except the unilateral level, the efforts find expression in the adoption of

international treaties and/or regulations between states, traditional objects of international

law. Contemporary regulatory techniques employed over the years in the adoption of

treaties inc1ude the concept of framework treaties allowing for subsequent detailed

protocols to which parties must opt in or out; secondary mechanisms such as compliance

procedures providing a combination of 'carrots' and 'sticks' to regulate state behavior;

and problem-solving mechanisms such as financial incentives and technical assistance. 1 10

In the field of international regulation of aircraft engine emissions, the literature indicates

the emergence of two trends. On the one hand, the various gases and partic1es emitted by

aircraft engines have traditionally been considered as part of general anthropogenic

108 Daniel Barstow Magraw, "International Law and Pollution" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia, PA: University of Pennsylvania Press, 1991) 3 at 7-8 [Magraw). 109 Ibid. 110 Hilary Charlesworth & Christine Chinkin, "Regulatory Frameworks in International Law" in Christine Parker et al., eds., Regulating Law (Oxford: Oxford University Press, 2004) 246 at 247-48 [Charlesworth).

21


emissions of these substances and regulated as such under international treaty regimes

such as the 1979 LRTAP Conventionlll and the Protocols adopted thereunder,ll2 the 1985

Vienna Conventionll3 and the UNFCCC.1l4

On the other hand, aviation emissions are viewed as an industry specific issue, the

regulation of which falls within the purview of ICAO. Indeed, article 2(2) of the Kyoto

Proto col expressly recognizes the role of ICAO in this regard. It provides as follows:

The parties included in Annex 1 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.ll5

As one commentator correctly mentions, "[i]n proto col language, emlSSlons of

greenhouse gases from aviation bunker fuels refers to aviation emissions.,,1l6 The

language of this provision appearS to indicate a conscious effort on the part of the drafters

of the Protocol to confer exclusive jurisdiction over the reduction or limitation of

greenhouse gas emissions from aviation and maritime operations unto ICAO and the

International Maritime Organization (lMO) respectively. This approach is unique

because, as will be seen later in the study, there is no attempt in the Protocol to assign a

specific organization to control any other source of greenhouse gas emissions in the

Protocol apart from the foregoing.

The discussion in this study will proceed along the lines of the above-mentioned trends.

This Chapter will focus on the general treaty regimes that deal with aircraft engine

emissions as a source of anthropogenic emissions of pollutants. Chapter 3 discusses the

regulatory regime established by the SARPs1l7 adopted by ICAO for the purpose of

III LRTAP Convention, supra note 10. ll2 Supra note 11. ll3 Vienna Convention, supra note 12. ll4 UNFCCC, supra note 14. Ils See Kyoto Protocol, supra note 15, art. 2(2) at 9 [emphasis added]. ll6 Miller, supra note 16 at 721. 117 Annex 16 Volume II, supra note 17.

22


regulating aircraft engine emissions and the enabling provisions of the Chicago

Convention118 under which they have been adopted.

2.2 Treaty Regimes On Long-Range Transboundary Air Pollution

2.2.1 The UNECE Geneva Convention on Long Range Transboundary Air Pollution,

1979 (LRTAP Convention)119

The LRT AP Convention was negotiated within the UN Economic Commission for

Europe (ECE) at the initiative of Scandinavian countries, which had long been concerned

about the issue of acid precipitation.120 A more direct impetus for the negotiation of the

Convention is however attributed by sorne authors to the Conference on Security and Co

operation in Europe, which took place from July 1973 to August 1975.121 The Final Act

of the Conference enjoined the participating states to promote:

"the progressive development, codification and implementation of international law as one means of preserving and enhancing the human environment, inc1uding princip les and practices as accepted by them, relating to pollution and other environmental damage caused by activities within the jurisdiction or control of their states affecting other countries." 122

"The LR T AP Convention is a framework convention 123 outlining a set of agreed

princip les as well as mechanisms for negotiating more specific and concrete standards for

the abatement of [air pollution, inc1uding] transboundary air pollution.,,124 The

Convention defines air pollution as:

118 Chicago Convention, supra note 18. 119 LRTAP Convention, supra note 10. 120 Philippe Sands & Paolo Galizzi, Documents in International Environmental Law, 2d ed. (Cambridge, UK: Cambridge University Press, 2004) at 33 [Sands, Documents]. 121 Okowa, supra note 25 at 25; see also Philippe Sands, Principles of International Environmental Law, 2d ed. (Cambridge, u.K.: Cambridge University Press, 2003) at 325 [Sands, Principles]; Johan G Lammers, "European Approach to Acid Rain" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia: University of Pennsylvania Press, 1991) 265 at 266-67 [Lammers, European Approach]. 122 Conference on Security and Co-operation in Europe: Final Act, 1975, 14I.L.M. 1292 at 1309 [CSCE Final Act]. 123 A Framework Convention contains general principles, intended to be supplemented in detail by one or more subsequent agreements typically referred to as Protocols or Annexes. This approach facilitates progress in the negotiation oftreaties because it focuses on general principles (such as the obligation to cooperate in a specific area) without requiring detailed commitments. It also allows agreement on sorne details in one protocol without being delayed by more intractable issues that are the subject of future rrotocols. See Magraw, supra note 108 at Il.

24 Okowa, supra note 25 at 24.

23


... the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious effects of such a nature as to endanger human health, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment ... 125

'Air pollutants' is to be construed accordingly.126 It is submitted that this definition is

broad enough to encompass air pollutants emitted by aircraft engines even though the

Convention does not specifically mention any air pollutants and their sources apart from

S02, in respect of which monitoring activity, research, consultations and information

exchange between contracting states were to start immediately.127

Article 2 of the LRTAP Convention contains one of the key agreed principles. It is a

declaration by the contracting parties to "endeavour to limit, and as far as possible,

gradually reduce and prevent air pollution including long-range transboundary air

pollution.,,128 This is to be achieved through the development of policies and strategies to

combat air pollution by means of exchanges of information, consultation, research and

monitoring by contracting parties, taking into account efforts aIready made by them in

that direction at the national and intemationallevels.129

The general obligation to limit, reduce and prevent air pollution contained in article 2 is

hedged with qualifications.13o For instance, article 6 requires parties to adopt emission

control policies and strategies only to the extent that they are compatible with balanced

development, and are economically feasible having regard to the best available

technology.l3l The open-ended nature of the obligations and the qualifications attached to

them have often been cited in the literature in support of the argument that they "are no

more than a poli tic al commitment without any binding effect, breach of which could not

125 LRTAP Convention, supra note 10, art. l(a). 126 Ibid. 127 Ibid. art. 8(a); see also Edward L. Miles et al., Environmental Regime Effectiveness: Confronting Theory with Evidence (Cambridge, Mass.: Massachusetts Institute of Technology Press, 2002) at 198 [Miles, Regime Effectiveness]. 128 LRTAP Convention, ibid. art. 2. 129 Ibid. arts. 3,4 and 5. 130 Sands, Documents, supra note 120 at 33. 131 Okowa, supra note 25 at 26.

24


be an appropriate basis for imposition of liability,,132 upon contracting states. The

preferred view however is that "[t]he generality of the provisions is not so much a lack of

intention to create legal relations, but rather the result of an attempt to accommodate the

different interests of the states parties who were reluctant to accept more definite

commitments.,,133

Article 9 of the Convention provides for further development of the 'Co-operative

programme for the monitoring and evaluation of the long-range transmission of air

pollutants in Europe' (EMEP), originally established during the Conference on Security

and Co-operation in Europe,134 to monitor flows of S02 and related substances across

national borders; to develop and use comparable or standardized monitoring procedures,

and to establish monitoring stations as part of an international programme. 135

"Institutional arrangements comprise an Executive Body, composed of representatives of

the parties to review implementation of the Convention, utilising EMEP's Steering Body,

and assisted by the Executive Secretary of UNECE, which carries out secretariat

functions.,,136 Originally signed by thirty-three contracting parties (thirty-two states and

the EC Commission), the Convention has a CUITent membership of forty-nine parties

including almost all nations of Eastern and Western Europe, the USA and Canada.137 It

has been suggested that "[t]he politically varied and regionally comprehensive adherence

to the Convention might be the result of the 'soft' nature of the obligations it

establishes. ,,138

The LRTAP Convention has subsequently provided the forum for the adoption of a

number of protocols establishing more detailed commitments regarding particular

132 Ibid. at 27. A footnote to article 8 of the Convention expressly states that the treaty does not contain a mIe on State liability as to damage and this has also been cited as further evidence that the treaty was not intended to create any legal obligations. See LRTAP Convention, supra note 10, art. 8 133 Okowa, ibid. at 27-28. 134 See p. 23 above. 135 LRTAP Convention, supra note 10, art. 9; see also Sands, Principles, supra note 121 at 249-250. 136 Sands, Principles, ibid. at 326. 137 Sands, Documents, supra note 120 at 33; see also LRTAP Convention website onIine: http://www.unece.org/env/lrtap/ (date accessed 10 October 2004). 138 Ibid.

25


substances. As succinctly noted by one author, "[t]he adoption of a framework convention

has the distinct advantage of creating a mechanism for ongoing negotiation, enabling the

parties to adjust or amend their obligations according to changes in scientific knowledge

and technology.,,139 Sorne of the protocols adopted deal with air pollutants emitted by

aircraft engines and are thus considered next in this chapter.

2.2.2 The 1985 Sulphur Protocoi40

Among the first steps taken by parties to the LR T AP Convention to implement their

obligations thereunder was the adoption in 1985 of the Protocol to the LRTAP

Convention on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at

Least 30%. Article 2 of the 1985 Sulphur Protocol contains the basic substantive

provISIOn:

The parties shall reduce their national annual sulphur emissions or their transboundary fluxes by at least 30 per cent as soon as possible and at the tatest by 1993, using 1980 levels as the basis for calculation of reductions. 141

Even though "the 1985 Sulphur Protocol entailed for the parties a highly definitive and

concrete commitment to reduce their national sulphur emissions ... [t]he sources from

which and the measures by which the 30% reduction was to be achieved were not

specified in the Proto col. .. ,,142 Apart from a very general obligation in article 6 requiring

the parties to develop national programmes, policies and strategies to serve as a me ans of

reducing sulphur emissions or their transboundary fluxes by at least 30 per cent and to

report to the Executive Body on progress made in this direction, freedom of choice of

sources and measures was in fact left to the parties in achieving the required reduction of

sulphur emissions.143

Also by introducing a flat 30% rate of emissions reduction and an inflexible 1980 base

year, the protocol failed to take into account variations in emission levels between the

139 Okowa, supra note 25 at 29. 140 1985 Sulphur Protocol, supra note Il. 141 Ibid. art. 2 [emphasis added]. 142 Lammers, European Approach, supra note 121 at 274. 143 Ibid. at 274-75.

26


different countries and more importantly, the capacity of the environment to tolerate air

pollutants without causing significant damage, the so called 'criticalloads approach' .144

This was however necessary in order to achieve a compromise between states, most of

whom were unwilling to make extensive commitments that could hinder their future

economic development. 145

The regime envisaged by the 1985 Sulphur Protocol was intended to remain in operation

until1993 after which it was hoped that it would be replaced by a new and more stringent

proto col. In spite of the many shortcomings of 1985 Sulphur Protocol, its significance lies

in the fact that it gave legal force to the marked downward trend in sulphur emissions

within contracting states at the time of its conclusion and effectively acts as a barrier

against the resumption of increased emissions in the event of changed economic

circumstances.146

2.2.3 The 1994 Sulphur Protocoi47

Negotiations under the auspices of the 1985 Sulphur Protocol resulted in the conclusion

in 1994 of the Protocol to the LRTAP Convention on Further Reduction of Sulphur

Emissions. It is obvious that the shortcomings of its predecessor led to a completely new

approach being adopted in the conclusion of the 1994 Sulphur Protocol. In particular, the

flat rate of emissions reduction concept was replaced by a set of flexible targets, taking

into account the different levels of states' contributions to the sulphur problem.148

Article 2 of the 1994 Sulphur Protocol contains the basic obligations to which parties

commit themselves. Article 2(1) provides that

[t]he Parties shaH control and reduce their sulphur emissions in order to protect human health and the environment from adverse effects, in particular acidifying effects, and to ensure, as far as possible, without entailing excessive costs, that depositions of oxidized sulphur compounds in the long term do not exceed critical loads for sulphur given, in annex I,

144 Okowa, supra note 25 at 36-38. 145 Ibid. at 38. 146 Ibid. 147 1994 Sulphur Protocol, supra note Il. 148 Okowa, supra note 25 at 38.

27


as eritieal sulphur depositions, in accordance with present scientific knowledge. 149

In this regard, the proto col applies and develops the concept of 'criticalloads,150 and the

'effects based approach' originally introduced by the 1988 NOx Protocol,151 and commits

parties not to exceed the critical loads for sulphur given in Annex 1. Further, as a first

step, the Protocol requires parties to reduce and maintain their annual sulphur emissions

in accordance with the timing and levels specified in its Annex II. 152

In addition, the Protocol allows parties to vary reduction levels within different

geographical areas under their jurisdiction, in particular geographical are as designated as

sulphur oxides management areas (SOMAs) under Annex 111. 153 "This flexibility allows

states to concentrate on those areas that have significantly high proportions of sulphur

emissions, thus avoiding the need to adopt uniform measures throughout the whole of

their territory.,,154 This ability to vary reduction levels is, however, limited to designated

geographical areas and does not extend to different sectors and/or sources of sulphur

emissions. Logically, this implies that for non-stationary sources of sulphur emissions,

including emissions from the aviation sector, states are only confined to their minimum

obligations as laid out in article 2(1) of the Protocol.

Unlike the 1985 Sulphur Proto col, the 1994 Sulphur Protocol provides sorne guidance

regarding the measures states are to employ to meet their emission targets. Article 2(4) of

the 1994 Sulphur Protocol "requires parties to make use of the 'most effective measures

for the reduction of sulphur emissions' from new and existing sources, including

controlling the sulphur content of fuel, energy efficient measures, promotion of renewable

149 1994 Sulphur Protocol, supra note Il, art. 2(1) [emphasis added]. 150 Article 1(8) of the 1994 Sulphur Protocol defmes 'criticalload' as "a quantitative estirnate of an exposure to one or more pollutants below which significant harmful effects on specified sensitive elements of the environment do not occur, according to present knowledge." The criticalloads approach avoids the problem of fixing an arbitrary rate of reduction of emissions that is not informed by the current state of scientific knowledge about the environment. It thus provides an interface between scientific knowledge and the development of the law. 151 Sands, Documents, supra note 120 at 44. 152 1994 Sulphur Protocol, supra note Il, art. 2(2) and Annex II. 153 Ibid. art. 2(3) and Annex III. 154 Okowa, supra note 25 at 39.

28


energy and the application of the best available control technologies using the guidance

provided in Annex N of the Protocol.,,155 Parties are also permitted to "apply economic

instruments to encourage the adoption of cost-effective approaches to the reduction of

sulphur emissions.,,156

Article 4 of the Protocol obliges each party to implement its basic obligations discussed

above through the adoption of national strategies, policies and programmes and by taking

and applying national measures to control and reduce sulphur emissions. Each party must

also collect and maintain information on actual levels of sulphur emissions, ambient

concentrations, depositions of oxidized sulphur and the effects of depositions of oxidized

sulphur. 157 Parties are also required to report on a periodic basis to the Executive Body

information on: the implementation of national strategies, policies, programmes and

measures; the annuallevels of national sulphur emissions containing data for ail relevant

source categories; and the implementation of other obligations entered under the

Proto col. 158

2.2.4 The NOx Protocol159

A protocol to the LRTAP Convention was adopted in 1988 on NOx, the other important

precursor of acid rain. This protocol "envisages a two-stage[ d] approach with regard to

the substantive or basic obligations of the parties to control and/or reduce their national

annual emissions of nitrogen oxides or their transboundary fluxes.,,160 As a first step the

parties undertake to stabilize the levels of their NOx emissions or the transboundary

fluxes thereof and for this purpose, they are required to:

... take effective measures to control and/or reduce their national annual emissions of nitrogen oxides or their transboundary fluxes so that these, at the latest by 31 December 1994, do not exceed their national annual emissions of nitrogen oxides or transboundary fluxes of such emissions for the calendar year 1987 or any previous year to be specified upon signature of, or accession to, the Protocol, provided that in addition, with respect to

155 Sands, Documents, supra note 120 at 44. See generally Annex IV of the 1994 Sulphur Protocol. 156 1994 Sulphur Protocol, supra note Il, art. 2(6) [emphasis added]. 157 Ibid. art. 4. 158 Ibid. art. 5 [emphasis added]. 159 NOx Protocol, supra note Il. 160 Lammers, European Approach, supra note 121 at 279.

29


any Party specifying such a previous year, its national average annual transboundary fluxes or national average annual emissions of nitrogen oxides for the period from 1 January 1987 to 1 January 1996 do not exceed its transboundary fluxes or national emissions for the calendar year 1987.161

At the second stage, parties to the NOx Protocol agree to progressively reduce emissions

from new as well as existing stationary and mobile sources ofNOx•162 In practical terms,

the parties must, within two years of the entry into force of the Protocol, apply national

emission standards to, inter alia, "new mobile sources in all major source categories

based on the best available technologies which are economically feasible .... ,,163 New

mobile sources are defined in article 1 of the protocol as: "a motor vehicle or other mobile

source which is manufactured after the expiration of two years from the date of entry into

force of the present Protocol.,,164 It has thus been suggested that the NOx Protocol is of

extreme importance to aeronautical activities since aircraft manufactured after 14

February 1993 (i.e. two years after entry into force of the Protocol) could be subject to

national NOx emission standards established under articles 2(1) and 2(2)(b) of the

Proto col under the category of new mobile sources.165

Even though parties are under a dut y to apply national emission standards to new mobile

sources ofNOx emissions, the standards are to be based on the best available technologies

that are economically feasible. As argued by one author, notwithstanding the open-ended

character of the obligation, it imposes a justiciable legal dut y upon the parties to the

Protocol.166 This is because, "a state party is not the final arbiter of the economic

feasibility or otherwise of the measures required under the Convention, and the measures

adopted may under appropriate conditions be the subject matter of scrutiny by the

Executive Body, the principal supervisory organ under the Protocol.,,167 It will be seen

later in this study that this interpretation may possibly lead to conflicting treaty

161 NOxProtocol, supra note 11, art. 2(1). 162 Okowa, supra note 25 at 41. 163 NOx Protocol, supra note Il, art. 2(2)(b) [emphasis added]. 164 Ibid. art.l [emphasis added]. 165 See Savin, supra note 73 at 91. 166 Okowa, supra note 25 at 41. 167 Ibid.

30


obligations especially for parties to the Protocol who are also members of ICAO, and who

have as yet not filed any notification of differences between their respective national

legislation and Annex 16 Volume 11.168

The significance of the NOx Protocol however lies in the fact that, unlike the 1985

Sulphur Proto col (which only required a percentage reduction in emissions), it required

both a freeze in emissions and technology-based controls,169 thus marking a notable

mile stone in the evolution of the regulatory regime under the LRTAP Convention.

2.2.5 The VOC Protocop70

The next Protocol that was adopted under the LR T AP Convention after the NOx Protocol

was the Protocol concerning Volatile Organic Compounds (VOCs). VOCs are produced

from incomplete combustion of fossil fuels; they react with NOx to form tropospheric

(ground-Ievel) ozone, an important component of smog. Tropospheric ozone is often

formed far downwind from the precursor VOCs and NOx emissions, thus leading to ozone

formation and transportation across international borders. 171

"The VOC Protocol aims to limit emissions of VOCs and the formation of ozone and

other "photo-chemical oxidants" through two principal mechanisms, set forth in article 2

of the protocol. The first, found in paragraph 2, provides several options from which

countries may choose in order to freeze or reduce their VOC emissions. The second,

found in paragraph 3, requires the adoption of technology-based controls for stationary

sources, motor vehicles [new mobile sources], and products that emit VOCs. (Annexes II

and III describe the controls.)"172

"Perhaps the most significant aspect of the VOC Protocol is that it allows countries with

different economic circumstances and varying potential to cause transboundary pollution

168 See chapter 3 below. 169 David P. Novello, "Introductory Note to Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Conceming the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes" (1992) 31 I.L.M. 568 at 570 [Novello J. 170 vac Protocol, supra note Il. 17\ Novello, supra note 169 at 570. 172 Ibid.

31


to meet their emissions reduction requirement in alternative ways. It is the first

agreement under LRTAP to provide this flexibility."173 One of the alternative measures

that may be used by parties in this connection is the ability to designate certain

geographic areas under their jurisdiction as Tropospheric Ozone Management Areas

(TOMAs) in accordance with article 2(2)(b) of the Protocol so as to avoid the need to

apply uniform reduction targets to their entire territories. In keeping with the comments

made regarding the designation of SOMAs under the 1994 Sulphur Protocol,174 it is

submitted that for non-stationary sources of VOC emissions, including emissions from

the aviation sector, states are only confined to their minimum reduction targets since

mobile sources cannot be designated as TOMAs under the Protocol.

The VOC Protocol also requires parties within two years of its entry into force, to apply

national emissions standards to, inter alia, new mobile sources, having regard to the best

available technology and the economic feasibility of the measures to be taken.175

However, unlike the 1994 Sulphur Protocol, the VOC Protocol defines the term 'new

mobile source' as "any on-road motor vehicle which is manufactured after the expiry of

two years from the date of entry into force of the present Protocol,,176 Clearly, the

Protocol does not envisage the application of national emission standards to VOCs

emitted from new mobile sources apart from motor vehicles, and accordingly, the

possibility of conflicting treaty obligations regarding aircraft engine emissions standards

is narrowly avoided.

It is submitted that apart from the provision on new mobile sources, the remainder of the

VOC Proto col applies to aircraft engine emissions of VOCs in much the same way as it

applies to other sources of VOC emissions. This proposition is based on the definition of

'major source category' in the Protocol which is as follows:

[A]ny category of sources which emit air pollutants in the form of VOCs, including the categories described in annexes II and III, and which contribute at least 1 % of the total national emissions of VOCs on an

173 Ibid. 174 See section 2.2.3 above. 175 VOC Protocol, supra note Il, art. 2(3)(iii). 176 Ibid. art. 1 [emphasis added].

32


annual basis, as measured or calculated in the first calendar year after the date of entry into force of the present Protocol, and every fourth year thereafter. 177

In most jurisdictions, aircraft engines either in a category by itself or as part of emissions

from 'other transport' 178 contributes at least 1 % of annual national VOC emissions and, as

such, falls within the purview ofthe Protocol.

2.2.6 The Proto col to Abate Acidification, Eutrophication and Ground-Level Ozone179

In spite of the immense emission reductions achieved under the LR T AP Convention and

its earlier Protocols, a need for further emission limits was recognized in relation to

ground-level ozone, acidification and eutrophication.180 Thus in 1996, members of the

LRTAP Convention commenced negotiations on yet another Protocol to deal with the

issue. Eventually, the Executive Body in September 1999 adopted the latest Protocol to

the LR T AP Convention to abate acidification, eutrophication and ground level ozone. 181

The Gothenburg Protocol applies a "multi-effect" and a "multi-pollutant" approach to

prevent and/or minimize the exceedances of criticalloads and levels of sulphur, NOx,

ammonia and VOCs so as to protect the environment and the health of humans and

ecosystems from the effects of acidification, eutrophication and ground-level ozone.182 As

one author puts it, " ... the new [Gothenburg] Protocol tightens up three prior Protocols:

The 1985 Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes

by at least Thirty Percent, the 1988 Protocol Conceming the Control of Nitrogen Oxides

or Their Transboundary Fluxes, and the 1991 Protocol Conceming the Control of

Emissions of Volatile Organic Compounds or Their Transboundary Fluxes.,,183

177 Ibid. 178 The expression 'other transport' is used in the Annexes to the Protocol to signify other means of transport apart from motor vehicles. 179 Gothenburg Protocol, supra note Il. 180 William J. Shapiro, "Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone" (1999) Colo. J. Int'l Envtl. L. Y.B. 208 at 213 [Shapiro]. 'Acidification' refers to deposits ofsulphur and nitrogen. 'Eutrophication' on the other hand refers to an excess ofnitrogen in aquatic ecosystems. 181 Ibid. at 215. 182 Ibid.; see also Gothenburg Protocol, supra note Il, pre amble and art. 2. 183 Ibid. at 215-16.

33


Article 3 of the Protocol, which contains the basic obligations of the parties, sets binding

national emission ceilings (NECs) for each of the four air pollutants: S02, NOx, VOCs

and ammonia. These NECs are specified according to source categories in the Annexes to

the Protocol and parties are required to apply them within the timescales indicated in the

annexes. 184 "The Protocol imposes differentiated NECs, negotiated by the parties on the

basis of the critical loads approach. Rather than adopting uniform percentage decreases

for each country, the criticalload approach sets ceilings based on 'the impact that their

emissions have on public health and on the vulnerability of the environment that they

pollute.' ,,185

As an alternative to the mandatory application of NECs, parties "may apply different

emission reduction strategies that achieve equivalent overall emission levels for aIl

source categories together.,,186 This has been described by one commentator as a loophole

that provides a way for countries to avoid application ofthe Protocol's ceilings. 187

The Gothenburg Proto col allows parties at the time of ratification to designate

geographical areas under their jurisdiction as Pollutant Emission Management Areas

(PEMAs) and to apply the NECs in Annex II only within the relevant PEMA for each

pollutant concerned. 188 Even though this provision is intended to avoid the onerous

application ofuniform NECs by parties throughout their entire territories, its effectiveness

in achieving the desired objective is limited by the fact that only geographical areas and

not industries and sectors of the national economy can be designated as PEMAs.

In any event, the Protocol represents another significant milestone in the evolution of the

regulatory regime under the LRTAP Convention. It is the first Protocol to coyer more

than one pollutant in a comprehensive manner; an approach hailed by one author as being

"more cost-effective and therefore more effective.,,189 This however remains to be seen,

184 Gothenburg Protocol, supra note Il, art. 3 and Annexes. 185 Shapiro, supra note 180 at 215. 186 Gothenburg Protocol, supra note Il, art. 3(2) [emphasis added]. 187 Shapiro, supra note 180 at 216. 188 Gothenburg Protocol, supra note Il, arts 3(9) and 3(10). 189 Shapiro, supra note 180 at 215.

34


as the Protocol is yet to enter into force. Further, the Protocol contains emission and fuel

standards for both stationary sources and mobile sources. 190

2.2.7 The LRTAP Convention and its Protoeols: An Evaluation

The LRTAP Convention and its Protocols constitute a significant contribution to the

development of international environmentallaw particularly in the area of environmental

protection. As has been seen, the regulatory regime established commenced with a

general obligation upon parties to endeavour to limit and, as far as possible, gradually

reduce and prevent air pollution, inc1uding transboundary air pollution. It has evolved

over time into an era of multi-pollutant, multi-effect treaty extensions, establishing

binding NECs for air pollutants adopted on the basis of the criticalloads approach.

Having been adopted within the framework of the UN ECE however, the scope of . application of the regime is limited to Europe and North America. 191 Coincidentally, these

are the very areas where most of the major traditional players in international civil

aviation are to be found. With the rapid industrial development of economies in Asia,

Latin America and Africa, and the concurrent growth in civil aviation expected in those

regions, there is the urgent need to consider the establishment of similar regimes at the

regional or internationallevels so as to minimize or reduce the incidence and effects of

long-range transboundary air pollution associated with development.

In terms of its effectiveness, even though the reglme established by the LRTAP

Convention and its Protocols has been characterized as a "mixed-performance regime"

with substantial regime achievements but a mixed success,192 it cannot be denied that the

considerable reduction in national emission levels of air pollutants witnessed over the

years in member states is, in part, attributable to the regime. Moreover, national

compliance with the regime has been characterized overall as high, leading to a marked

190 Ibid. 191 The membership of the UN ECE essentially comprises Eastern and Western European states, the USA and Canada. 192 Miles, Regime Effectiveness, supra note 127 at 197.

35


shift in perceptions of the air pollution problems in most of the countries involved.193 The

LRTAP Convention and its Protocols must therefore be hailed as a success on the whole.

Although exhaust emlSSlOns from aircraft engmes constitute only a small portion of

national emission inventories, they are nevertheless important because they are injected

directly into the atmosphere and, as such, contribute significantly to the non-attainment of

national ambient air quality standards194 as well as to long-range transboundary air

pollution. It appears, however, that as regards mobile sources of air pollutants, the regime

established under the LRTAP Convention and its Proto cols focuses mainly on the

regulation of emissions from motor vehic1es and other forms of transport to the neglect of

aircraft engine emissions. 195 This issue needs to be reconsidered in view of the fact that

non-source specific NECs are presently being employed as replacements for source

specific emissions reduction rates under the regime. For NECs to be effective, all sources

of air pollutant emissions must be roped in.

2.2.8 The 1991 USA-Canada Air QualityAgreemeni96

The 1991 Air Quality Agreement is a bilateral treaty between the USA and Canada. It "is

designed to control transboundary air pollution between the two countries and to provide

a framework for addressing shared concems.,,197 The agreement was adopted following

severa! years of disputes and negotiations over responsibility for causing acid rain and the

damage associated with it in North America. 198

193 Ibid.

194 Michael Gerard Green, "Control of Air Pollutant Emissions from Aircraft Engines: Local Impacts of National Concem" (1999) 5:2 Envtl. Law. 513 [Green]. 195 As regards limit values for fuels and new mobile sources, see generally Gothenburg Protoeol, supra note Il, Annex VIII; see also VOC Protoeol, supra note Il, art. 1, which defines 'new mobile source' as "any on-road motor vehicle which is manufactured after the expiry of two years from the date of entry into force of the present Protocol". 196 Agreement Between the Government of the United States of America and the Government of Canada on Air Quality, 13 March 1991, Cano T.S. 1991 No. 3, 30 I.L.M. 676 [1991 Air Quality Agreement]. 197 Sands, Principles, supra note 121 at 339. 198 Ibid. For a comprehensive overview of the history of US-Canada Acid Rain relations, see Ross Glasgow, "Acid Rain: A Canadian Policy Perspective" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia: University of Pennsylvania Press, 1991) 310 [Glasgow].

36


Articles 3 and 4 contain the primary objectives of the parties to the Agreement. The

general objective of the parties as stated in article 3 is "to control transboundary air

pollution between the two countries.,,199 In pursuance ofthis general objective, the parties

are mandated, inter aUa, to "establish specific objectives for emissions limitations or

reductions of air pollutants and adopt the necessary programs and other measures to

implement such specific objectives,,2oo in accordance with article 4 of the Agreement.

Article 4(1) of the Agreement provides as follows:

Each Party shall establish specific objectives, which it undertakes to achieve, for emissions limitations or reductions of sueh air pollutants as the Parties agree to address. Such specifie objectives will be set forth in annexes to this Agreement.201

By virtue of this provision, the Agreement provides a framework for addressing any air

pOllutants of concem to the parties at the tiine of signature or in the future. This provision

must however be read in conjunction with the preamble to the Agreement which states

clearly that the parties intend to address air-related issues of a global nature, such as

climate change and stratospheric ozone depletion, in other fora.202 The Scope of air

pOllutants addressed by the agreement may thus be extended to all other air pollutants

except those that are of a global nature.

For starters, the Agreement focuses on the two air pollutants notorious for their role in the

formation of acid rain: S02 and NOx•203 Pursuant to article 4(2), each party's specific

objectives for emissions limitations or reductions of these pOllutants are set forth in

Annex 1 to the Agreement with the objective of reducing their transboundary flows. With

respect to S02, the US is obliged to reduce its annual emissions by approximately 10

million tons from 1980 levels by the year 2000, and to maintain permanent annual

national emissions caps of 8.95 million tons for electric utilities and 5.6 million tons for

199 1991 Air Quality Agreement, supra note 196, art. 3(1). 200 Ibid. arts. 3(2) and 4(3). 201 Ibid. art 4(1) [emphasis added]. 202 Ibid. preamble. 203 Ibid. art 4(2).

37


other industrial sources.204 For its part, Canada is obliged to reduce annual S02 emissions

from its seven easternmost provinces to 2.3 million tons by 1994 and to achieve an annual

emissions cap of 2.3 million tons from those provinces from 1995 to 1999, and also to

establish a permanent annual national emissions cap of3.2 million tons by 2000.205

As regards NOx emissions, the Agreement commits the US to reduce its total annual

emissions by approximately 2 million tons from 1980 emission levels by 2000. For this

purpose, emission standards are established in the Annex for stationary sources as well as

mobile sources (old and new light dut y trucks, light dut y vehic1es, and heavy dut y

trucks).206 Canada on the other hand is required to reduce its NOx emissions from

stationary sources by 100,000 tons below its forecast level of 970,000 tons for the year

2000 and to limit emissions from mobile sources by adopting emission standards

specified in the Annex for light, medium and heavy dut y vehic1es?07

The Agreement does not refer to emissions from aircraft engines as one of the mobile

sources of either S02 or NOx emissions, yet parties are obliged to establish permanent

national emissions caps for these pollutants irrespective of their sources. Obviously, the

focus of the parties was directed at major sources of emissions such as coal fired power

plants and smelters,208 and motor vehic1es. Given the anticipated growth in the aviation

industrl°9 and the fact that aircraft engines deposit their air pollutants directly into the

atmosphere and as such facilitate the formation of acid rain, there is the need to consider

whether or not aircraft engine emissions should be subject to similar emission standards

as motor vehic1es are.

204 Ibid. Annex 1 section lA. 205 Ibid. Annex 1 section lB. 206 Ibid. Annex 1 section 2A. 207 Ibid. Annex 1 section 2B. 208 See Mark L. Glode & Beverly Nelson Glode, "Transboundary Pollution: Acid Rain and United StatesCanadian Relations" (1993) 20 B.C. Envtl. Aff. L. Rev. 1 at 16-17. 209 See introduction above.

38


2.3 International Treaty Regimes On Ozone Depletion And Global Climate Change

2.3.1 The 1985 Vienna Convention/or the Protection o/the Ozone Laye?lO

The Vienna Convention was negotiated under the auspices of United Nations

Environment Programme (UNEp)?ll It was the first treaty to address a global

atmospheric issue, namely, the depletion of the ozone layer.212 Article 2(1) of the

Convention sets forth the objects and basic obligations ofparties:

The parties shaH take appropriate measures in accordance with the provisions of this Convention and of those protocols in force to which they are party to protect human health and the environment against adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer.2B

Thus, the Vienna Convention was intended to protect humans and the environment from

the harmful effects of human activities that modify the ozone layer,214 including aircraft

engine emissions, though such emissions were not explicitly mentioned. To achieve this

object, the Convention "do es not set targets or timetables for action but requires four

categories of 'appropriate measures' to be taken by parties in accordance with means at

their disposaI and their capabilities, and on the basis of relevant scientific and technical

considerations.,,215

The appropriate measures to be taken by parties in this regard are: (1) co-operation by

means of systematic observations, research and information exchange in order to better

understand the effects of human activities on the ozone layer;216 (2) adoption of

appropriate legislative or administrative measures and harmonization of appropriate

policies to control, limit, reduce or prevent human activities likely to have adverse effects

resulting from the modification of the ozone layer;217 (3) co-operation in the formulation

of measures, procedures and standards for the implementation of the Convention, with a

2\0 Vienna Convention, supra note 12. 2ll Sands, Documents, supra note 120 at 63. 212 Sands, Principles, supra note 121 at 344. 213 Vienna Convention, supra note 12, art. 2(1). 214 Sands, Documents, supra note 120 at 63. 215 Sands, Principles, supra note 121 at 344-45. 216 Vienna Convention, supra note 12, art. 2(2)(a). 217 Ibid. art 2(2)(b).

39


view to the adoption ofprotocols and annexes;218 and (4) co-operating with international

bodies to effectively implement the Convention and its protocOIS.219

Article 3 of the Vienna Convention, together with Annexes 1 and II, provide further

details about the type of research and systematic observations parties are required to

undertake either directly or through competent international bodies. In particular, Annex 1

identifies three main areas of research need and "also identifies substances thought, at the

time, to have the potential to modify the ozone layer: carbon substances (carbon

monoxide, carbon dioxide, methane, non-methane hydrocarbon species); nitrogen

substances (nitrous oxide, nitrogen oxides); chlorine substances (fully halogenated

alkanes, partially halogenated alkanes); bromide substances; and hydrogen substances

(hydrogen, water).'.220 As already discussed, the levels of most of these substances in the

atmosphere are significantly influenced by emissions from aircraft engines.

As regards the obligation to co-operate in the legal, technical and scientific fields, the

Convention only requires parties to facilitate the exchange of relevant scientific,

technical, socio-economic, commercial and legal information as well as technology as set

out in Annex II, subject to relevant national law?21 For purposes of implementation,

article 6 of the Convention establishes a Conference of the Parties (COP) and requires it

to meet at regular intervals as it may determine at its first meeting. As the executive body

of the Vienna Convention, the COP is entrusted with the power to adopt protocols

pursuant to article 2 of the Convention. To date, the COP has adopted only one such

Protocol, the Montreal Protocol.

218 Ibid. art 2(2)(c). 219 Ibid. art 2(2)( d). 220 Sands, Principles, supra note 121 at 345, n. 173. 221 Vienna Convention, supra note 12, arts. 4(1) & (2).

40


2.3.2 The 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (as

Amended and/or Adjusted to datel22

The negotiation and adoption of the Montreal Protocol by the COP of the Vienna

Convention was prompted by the emergence of new scientific evidence indicating that

anthropogenic emissions of certain substances were significantly depleting and modifying

the ozone layer and could potentially have adverse climatic effects.223 "The absence of

scÏentific evidence that actual harm was occurring required the international community

to take 'precautionary measures to control equitably total global emissions' of substances

that deplete the ozone layer".224 Accordingly, "[t]he Montreal Protocol sets forth specific

legal obligations, including limitations and reductions on the calculated levels of

consumption and production of certain controlled ozone-depleting substances.,,225

The controlled substances are listed in the annexes226 to the Protocol, and parties are

obliged to take the control measures specified in article 2 of the Protocol in order to

reduce and eventually eliminate the consumption and production of these substances. The

controlled substances covered by the Protocol are: CFCs (article 2A), halons (article 2B),

other fully halogenated CFCs (article 2C), carbon tetrachloride (article 2D), methyl

222 Montreal Protocol, supra note 13. The Protocol has been subsequently amended by: Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 29 June 1990, Annex II to the Report of the Second Meeting of the Parties, UNEP/OzL.Pro.2/3 [London Amendments/Adjustments]; Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 25 November 1992, Annex III to the Report of the Fourth Meeting of the Parties, UNEP/OzL.Pro.4/5 [Copenhagen Amendments/Adjustments]; Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer adopted by the Ninth Meeting of the Parties, 17 September 1997, Annex IV of the Report of the Ninth Meeting of the Parties, UNEP/OzL.Pro.9/12 [Montreal Amendments]; Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 3 December 1999, Annex V to the Report of the Eleventh Meeting of the Parties, UNEP/OzL.Pro.l1/10 [Beijing Amendments]. A consolidated version of the Protocol is reproduced in Sands, Documents, supra note 120 at 82-124. 223 Sands, Documents, supra note 120 at 82. 224 Ibid. 225 Ibid. 226 Presently, there are 5 Annexes to the Protocol (i.e. Annexes A, B, C, D and E). 4 of the Annexes contain groups of controlled substances particularized as follows: CFCs (Annex A Group 1), Halons (Annex A Group II), Other fully halogenated CFCs (Annex B Group 1), Carbon tetrachloride (Annex B Group II), Methyl chloroform (Annex B Group III), Hydrofluorocarbons (Annex C Group 1), Hydrobromoflourocarbons (Annex C Group II), Methyl bromide (Annex E) and Bromochloromethane (Annex C Group III). Annex D contains a list ofproducts containing the controlled substances specified in Annex A. See Montreal Protocol, supra note 13, Annexes A-E.

41


chlorofonn (article 2E), hydrofluorocarbons (article 2F), hydrobromoflourocarbons

(article 2G), methyl bromide (article 2H), and bromochloromethane (article 21).227

The Protocol sets specific timetables and targets for the reduction and eventual

elimination of the consumption and production of each of the controlled substances. For

example, with respect to the controlled substances in Group 1 of Annex A, (CFCs), each

party is required to limit its ca1culated level of consumption to its 1986 calculated level of

consumption within 19 months of the entry into force of the Protocol. 228 Thereafter,

yearly consumption is to be reduced to 25% of 1986 levels by 1 January 1994,229 and

completely phased out by 1 January 1996.230 Each party is also obliged to reduce its

calculated levels of production of CFCs by the same amounts and by the same dates,

except that for each amount, the level may be increased by up to 10 per cent based on the

1986 level for purposes of satisfying the basic domestic needs of developing country

parties under article 5.231

Articles 2B-21 contain similar reduction levels and timetables for the other controlled

substances mentioned ab ove. What is notable, however, is that even though Annex 1 of

the Vienna Convention identified substances thought at the time to have potential adverse

effects on the ozone layer,232 most of these substances have to date not been included in

the category of controlled substances233 under the Montreal Protocol, and as such, their

production and consumption by parties are not regulated under the regime. Carbon

substances (carbon monoxide, carbon dioxide, methane, non-methane hydrocarbon

227 Sands, Documents, supra note 120 at 83. 228 Montreal Protocol, supra note 13, art. 2A(1) as adjusted and amended. 229 Ibid. art 2A(2) as adjusted and amended. 230 Ibid. art 2A(4) as adjusted and amended. 231 Ibid. arts. 2A(1), 2A(3) & 2A(4) as adjusted and amended. The 1999 Beijing Amendments introduced new reductions for production for basic domestic needs by article 5 parties. These parties are required to phase out production ofCFCs by 1 January 2010, with intermediate reductions of20% by 2003,50% by 2005 and 85% by 2007 based on their annual averages of production for basic domestic needs for the period 1995-1997. See Sands, Documents, supra note 120 at 84. 232 See section 2.3.1 above. 233 A 'controlled substance' is defined in article 1 of the Montreal Protocol as a substance in Annexes A, B, C or E to the Protocol, whether existing alone or in a mixture. It includes isomers of any such substance, except as specified in the relevant Annex, but excludes any controlled substance or mixture which is in a rnanufactured product other than a container used for the transportation or storage ofthat substance. See Montreal Protocol, supra note 13, art. 1.

42


species), nitrogen substances (nitrous oxide, nitrogen oxides) and hydrogen substances

(hydrogen, water) are of particular relevance for present purposes, since these substances

are found in aircraft engine emissions deposited directly into the upper atmosphere where

their potential impact on the ozone layer is profound.

It would appear that the non-inclusion of the above named substances as controlled

substances under the Montreal Protocol stems from the fact that their impact on the ozone

layer is still uncertain, given the state of scientific knowledge today. This stance however

cannot be justified as it defeats the purpose of the Protocol, expressed in its Preamble as

follows:

The Parties ta this Protoeol, ... Determined to protect the ozone layer by taking preeautionary measures to control equitably total global emissions of substances that deplete it, with the ultimate objective of their elimination on the basis of developments in scientific knowledge, taking into account technical and economic considerations and bearing in mind the developmental needs of developing

. 234 countnes, ...

In accordance with the precautionary principle,235 measures need to be taken to ensure

that the above named and other substances that may potentially deplete the ozone layer

are included as controlled substances in the regulatory regime of the Montreal Protocol so

as to forestall the possibility of irreversible damage occurring to the ozone layer. To date,

the Montreal Protocol and its numerous amendments and/or adjustments have only

focused on a few selected substances instead of total global emissions of substances

thought likely to deplete the ozone layer.

234 Ibid. Preamble [emphasis added]. 235 The Precautionary Principle of International Environmental Law provides in essence that where there are threats of serious or irreversible damage to the environment, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. See Sands, Principles, supra note 121 at 266-78.

43


2.3.3 The 1992 United Nations Framework Convention on Climate Change

(UNFCCCl36

The UNFCCC was signed by 155 states and the European Community (EC) at the end of

the United Nations Conference on Environment and Development, (UNCED) held in Rio

de Janeiro, Brazil, in 1992. It has since been the centerpiece of the international

community's effort to combat the serious global environmental challenge of climate

change.237 The ultimate objective of the UNFCCC is "to achieve ... the stabilization of

greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous

anthropogenic interference with the climate system.'.238 This objective is to be achieved

within a time frame sufficient to allow ecosystems to adapt naturally to climate change

and to enable economic development to proceed in a sustainable manner.239

To achieve the ultimate objective of the UNFCCC, parties commit themselves under

article 4(1) to take certain measures taking into account their common but differentiated

responsibilities and their specific national and regional development priorities, objectives

and circumstances. These general commitments include, inter alia, the development and

publication of " .. . national inventories of anthropogenic emissions by sources and

removal by sinks of ail greenhouse gases not controlled by the Montreal Protocol, ... ,,240

the formulation and implementation of national and regional programmes containing

measures to mitigate climate change by addressing emissions and removals of these

gases,241 and the promotion and cooperation "in the development, application and

diffusion, including transfer, of technologies, practices and processes that control, reduce

or prevent anthropogenic emissions of greenhouse gases not controlled by the Montreal

Protocol in all relevant sectors, including the energy, transport, industry, agriculture,

forestry and waste management sectors.,,242

236 UNFCCC, supra note 14. 237 Peter D. Cameron, "The Kyoto Process: Past, Present and Future" in Peter D. Cameron & Donald Zillman, eds., Kyoto: from Princip/es to Practice (The Hague: Kluwer Law International, 2001) 3 at 8 ~Cameron, The Kyoto Process]. 38 UNFCCC supra note 14, art. 2.

239 Ibid. 240 Ibid. art 4(1)(a) [emphasis added]. 241 Ibid. art 4(1)(b). 242 Ibid. art 4(1)(c) [emphasis added].

44


Further, developed-country parties243 to the UNFCCC are specifically required to adopt

national policies and measures regarding their greenhouse gas (GHG) sources, sinks and

reservoirs with the aim of returning, individually or jointly, to their 1990 levels of

anthropogenic emissions of CO2 and other GHGs not controlled by the Montreal

Proto col. 244 It has been argued by Philippe Sands that, although labeled as specific, the

extent of these commitments is unclear as a result of the convoluted language of article

4(2) of the UNFCCC.245 In support of this assertion, he argues that article 4(2) does not

reflect a clear commitment by Annex 1 parties to the UNFCCC to stabilize their C02 and

other GHG emissions by the year 2000 at 1990 levels; neither does it indicate whether or

not parties retain the right to increase their anthropogenic emissions thereafter.246 In view

ofthese specific commitments however, the word 'Framework' that appears in the title of

the UNFCCC has rightly been characterized as something of a misnomer.247

It is instructive to note that the UNFCCC purports to regulate the anthropogenic emission

of all other GHGs not controlled by the Montreal Protoco1.248 This all-embracing

approach to environmental regulation recognizes and avoids the inherent defect of the

selective approach that still pertains under the Montreal Proto col. As noted above, under

the selective approach, the emission of specific named substances is regulated to the

exclusion of all other substances. By adopting the all-embracing approach, the UNFCCC

attempts to control all anthropogenic emissions of GHGs, including those emitted by

aircraft engines, and as such provides a more comprehensive regulatory regime.

As will be seen shortly, however, this all-embracing approach has its own shortcomings

since it is premised on the assumption that the same measures can be used across board to

achieve results irrespective of the different sources of anthropogenic emission of

substances. This assumption is seriously flawed as demonstrated by the Kyoto

243 These are countries listed in Annex 1 to the UNFCCC. 244 UNFCCC, supra note 14 art 4(2). 245 Sands, Principles, supra note 121 at 364-65. 246 Ibid. 247 Ibid. at 359. For a deflnition or description of the expression 'Framework Convention', see supra note 123. 248 UNFCCC, supra note 14, art. 4.

45


Protoco1.249 As an outgrowth of the UNFCCC, it is legitimate to expect that the Kyoto

Proto col would have continued in the tradition of the all-embracing approach to

environmental regulation. However, the Kyoto Protocol regime selectively regulates six

specific GHGs, and insofar as these six GHGs are emitted from the aviation or maritime

sectors, their regulation is entrusted to ICAO or IMO respectively.

For purposes of its implementation, the UNFCCC establishes bodies such as the

Conference of the Parties (COP), which is the supreme goveming body, a Secretariat,

subsidiary bodies which provide advice on scientific and technical matters and on the

effective implementation of the Convention and a financial mechanism presently being

performed by the restructured Global Environmental Facility (GEF).250 As the name

implies, the COP comprises the representatives of all the parties to the UNFCCC. Article

17 of the UNFCCC empowers the COP to adopt Protocols to the Convention. To date, the

only Protocol adopted by the COP is the Kyoto Protocol.

2.3.4 The 1997 Kyoto Protoeol to the UNFCcè51

The Kyoto Protocol was negotiated and adopted by the third COP of the UNFCCC in

December 1997 following a prior decision252 that the specific commitments of the Annex

1 countries provided for in article 4(2) of the UNFCCC were not adequate and that new

commitments for the post 2000 period should be laid down in a Protocol or other legal

instrument. 253

Article 3(1) of the Kyoto Protocol contains the basic obligation to which parties listed in

UNFCCC Annex 1 are committed. It provides as follows:

The Parties included in Annex 1 [to the UNFCCC] shall, individually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions of the greenhouse gases listed in Annex A do not exceed their assigned amounts, calculated pursuant to their quantified

249 See section 2.3.4 below. 250 Sands, Documents, supra note 120 at 129. 251 Kyoto Protocol, supra note 15. 252 UNFCCC COP-1, Report of the Conference of the Parties on itsfirst session, held at Berlinfrom 28 March to 7 April 1995, FCCC/CP/199517, Decision l/CP.l. 253 Sands, Documents, supra note 120 at 153; Cameron, The Kyoto Process, supra note 237 at 9.

46


emission limitation and reduction commitments inscribed in Annex B and in accordance with the provisions of this Article, with a view to reducing their overall emissions of such gases by at least 5 per cent below 1990 levels in the commitment period 2008 to 2012.254

Six GHGs are listed in Annex A to the Kyoto Protocol namely, CO2, methane (CH4),

nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs), and sulphur

hexafluoride (SF6).255 On the other hand, Annex B contains a list of UNFCCC Annex 1

parties and their respective 'quantified emission limitation or reduction commitments',

expressed as a percentage of their total emissions in the base year or period.256 The

obligation assumed by parties under article 3(1) requires them to ensure that their

aggregate anthropogenic emissions of the above mentioned six GHGs, measured in like

terms as their CO2 emissions, do not exceed their 'assigned amounts', a figure derived by

multiplying each country's quantified emission limitation or reduction commitment by

five.257 Parties must implement this obligation with the view to reducing their overall

emissions of the six GHGs by at least 5% below 1990 levels in the first commitment

period 2008 to 2012.258

To meet these emissions reduction targets, parties are allowed to use the so-called flexible

mechanisms. These are: Joint Implementation (JI),259 Clean Development Mechanism

(CDM)260 and Emissions Trading (ET).261 Under JI, Annex 1 Parties may trade among

themselves Emission Reduction Units (ERUs) resulting from projects aimed at reducing

anthropogenic emissions by sources or enhancing anthropogenic removals by sinks of

GHGs in any sector of the economy of other Annex 1 parties.262 By employing the CDM,

Annex 1 countries may receive GHG credits or Certified Emissions Reductions (CERs) by

254 Kyoto Protoeol, supra note 15, art. 3(1). 255 Ibid. Annex A. 256 Ibid. Annex B. The base year or period is fixed at 1990 for most states parties with the exception of those undergoing the process of transition to a market economy. (ibid. art. 3(5». 257 Ibid. art 3(7). 258 The Kyoto Protocol envisages the adoption of even stronger commitments after the frrst commitment period. It therefore requires the Meeting of the Parties to the Protocol to initiate reconsideration of the commitments in Annex B at least 7 years before the end of the frrst commitment period. See Sands, Documents, supra note 120 at 154. 259 Kyoto Protoeol, supra note 15, art 6. 260 Ibid. art 12. 261 Ibid. art 17. 262 Cameron, The Kyoto Process, supra note 237 at 11.

47


sponsoring actual GHG offsetting projects in, or other technology transfer to, a

developing country.263 ERUs and CERs acquired through the above mechanisms

effectively represent the number of tons of GHGs the acquiring country may emit over

and above its article 3 assigned amount.264

Under ET, an Annex 1 country may transfer part of its unused article 3 assigned amount

to another Annex 1 party. In this way, a party may purchase GHG credits or allowances

from another party that has actual emissions below its assigned amount. The task of

defining the relevant principles, modalities, mIes and guidelines for ET was entmsted to

the COP under article 17 and the COP has proposed a framework included in the 2001

Marrakesh Accords.265

Probably the most important provision of the Kyoto Protocol for present purposes is

article 2(2), which provides:

The Parties included in Annex 1 [to the UNFCCC] 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.266

Contrary to the all-embracing approach adopted in the UNFCCC, this provision, read

together with Annex A of the Kyoto Protocol, indicates that only six specifically named

GHGs are covered by the Protocol; to the extent that these six GHGs are emitted from the

aviation or maritime sectors of Annex 1 countries, they do not fall under the ambit of the

Protoco1.267 Instead, parties must pursue the limitation or reduction of their GHG

emissions from the above-mentioned sectors working through the ICAO and the IMO.268

Several reasons have been advanced in support of the exclusion of GHG emission from

263 Ibid. at 11-12. 264 Ibid. 265 UNFCCC COP-7, Report of the Conference of the Parties on its seventh session, held at Marrakeshfrom 29 October to 10 November 2001. Addendum. Part two: Action taken by the Conference of the Parties. Volume II, FCCC/CP/2001113/Add.2, Decision 18/CP.7. 266 Kyoto Protocol, supra note 15, art. 2(2). 267 See Miller, supra note 16 at 721-23. She argues that while the Kyoto Protocol's national targets app1y to emissions from a1most aH industrial sectors including domestic aviation, they exclude emissions from the international aviation sector. 268 Ibid. at 721.

48


the aviation sector.269 However, the Protocol offers no clue as to whether or not GHG

emissions from these sectors would be included in assessing each party's actuallevel of

annual emissions for purposes of compliance and enforcement of the Protocol.

2.4 Other Related Treaty Regimes

2.4.1 The 1982 United Nations Convention on the Law of the Sea (UNCLOSl70

As the name suggests, the UNCLOS is primarily a treaty goveming activities in and in

relation to the world's seas and oceans.271 Its article 222 is however relevant to the subject

under discussion in this study and therefore deserves to be mentioned. It provides:

States shall en/orce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1, and with other provisions of this Convention and shall adopt laws and regulations and take other measures necessary to implement applicable international ru les and standards established through competent international organizations or diplomatie conference to prevent, reduce and control pollution of the marine environment from or through the atmosphere, in conformity with ail relevant international rules and standards concerning the safety of air navigation.272

Article 212, referred to in article 222 above, provides as follows:

1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures and the safety of air navigation.

2. States shall take other measures as may be necessary to prevent, reduce and control such pollution.

269 The reasons advanced in support include the uniqueness ofthe global civil aviation sector, the technical expertise of IeAO, the probability of achieving greater compliance under IeAO, the prevention of duplication of efforts, the minimization of market disruption, the prevention of disruption of bilateral air transport agreements, the inclusion of developing countries and the ease of developing international consensus in law tnaking within IeAO. See ibid. at 722-30. 270 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 U.N.T.S. 3 (entered into force 16 November 1994) [UNCLOS]. 271 Sands, Documents, supra note 120 at 294. 272 UNCLOS, supra note 270, art. 222 [emphasis added].

49


3. States, acting especially through competent international organizations or diplomatie conference, shall endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control such pollution?73

Read together, these two provisions of the UNCLOS impose an obligation on states not

only to adopt laws and regulations regarding marine pollution from or through the

atmosphere, but also to enforce them. Although the object ofthese provisions is to protect

the marine environment, a closer look at the wording suggests that states are obliged to

adopt and enforce regulations within the airspace under their sovereignty, irrespective of

whether the air space is superjacent to the sea or to land. Similarly, the obligation of states

to adopt and enforce mIes and regulations extends to aircraft of their registry, and there is

no indication that these mIes are only to be enforced when such aircraft are flying over

the oceans.

National mIes and regulations apart, the UNCLOS also compels states to endeavour to

establish and implement global and regional mIes, standards and recommended practices

to prevent, reduce and control pollution of the marine environment from or through the

atmosphere. This reflects a drive towards attaining a uniform global or regional legal

regime for the regulation of pollution, including marine pollution from aircraft engine

emlsslOns.

2.5 Conclu ding Remarks

The purpose of this chapter has been to provide an overview of the different treaty

regimes adopted under the first approach to environmental regulation of aircraft engine

emissions. This approach considers effluents from aircraft engines as part of general

anthropogenic emissions of atmospheric pollutants and attempts to control, reduce or

prevent their introduction into the atmospheric environment through a variety of means.

As has been seen, this approach to environmental regulation inevitably produces a

patchwork of mIes and regulations which, in sorne instances, may contradict each other.

Moreover, since all states are not party to all these regimes, reliance on them could lead to

273 Ibid. art 212 [emphasis added].

50


the absence of any form of environmental regulation of aircraft engine emissions in

certain parts of the world. The next chapter discusses the regime established under the

industry-specific approach to environmental regulation of aircraft engine emissions; the

international standards and recommended practices adopted by ICAO and designated as

Annex 16 Volume II to the Chicago Convention.

51


CHAPTER THREE

ICAO'S INTERNATIONAL STANDARDS AND RECOMMENDED PRACTICES

ADDRESSING AIRCRAFT ENGINE EMISSIONS


Towards the end of the Second World War, at the invitation of the government of the

USA, representatives from nations around the world gathered in Chicago to discuss the

future of the burgeoning international aviation industry.274 Ultimately, the conference

resulted, inter alia, in the adoption of the Convention on International Civil Aviation,275

and the creation ofthe International Civil Aviation Organization (ICAO)?76

The goal of the Chicago Convention ''was to achieve a system of uniform regulation of

matters affecting international aviation.,,277 Accordingly, article 37 of the Chicago

Convention enjoins contracting states to "collaborate in securing the highest practicable

degree of uniformity in regulations, standards, procedures, and organization in relation to

aircraft, personnel, airways and auxiliary services in all matters in which such uniformity

will facilitate and improve air navigation.,,278

Article 37 of the Chicago Convention also vests ICAO with the authority to adopt and

amend international standards and recommended practices (SARPs) dealing with among

other things, communications systems and air navigation aids, including ground

marking,279 mIes of the air and air traffic control practices,28o aircraft in distress and

investigation of accidents,281 and "such other matters concerned with the safety,

regularity, and ejJiciency of air navigation as may from time to time appear

appropriate.,,282 The international SARPs adopted under article 37 are, for

274 Green, supra note 194 at 530. 275 Chicago Convention, supra note 18. 276 Ibid. art. 43. 277 Miller, supra note 16 at 706. 278 Chicago Convention, supra note 18, art. 37. 279 Ibid. art. 37(a). 280 Ibid. art. 37(c). 281 Ibid. art. 37(k). 282 Ibid. art 37 final paragraph [emphasis added]. This provision was an omnibus residuary clause intended to cater for the adoption of SARPs to meet the growing needs of civil aviation. It is however lirnited to matters concerning the safety, regularity, and efficiency of air navigation.

52


eonvenience,283 designated as Annexes to the Chicago Convention.284 Between 1948 and

1953, 15 Annexes were adopted?85 Presently, there are 18 Annexes to the Chicago

convention.286

It is instructive to note that although "Environmental Protection" was not expressly

mentioned in article 37 of the Chicago Convention as one of the subjects in respect of

which international SARPs shaH be adopted from time to time as may be necessary, the

ICAO Assembly at its 18th session found it useful to instruct the Council to develop

SARPs on the subject.287 Obviously, this direction could only have been made under and

by virtue of the residuary clause contained in article 37 of the Chicago Convention, which

allows ICAO to adopt SARPs dealing with such other matters concerned with the safety,

regularity, and efficiency of air navigation as may from time to time appear

appropriate.288 However, there is no indication that the said decision of the ICAO

Assembly was influenced by considerations of safety, regularity, and efficiency of air

navigation.

While this author applauds the development of international SARPs on aircraft engine

emissions, it should be noted that the extent to which Annex 16 Volume II, as

subsequently amended and/or updated, actually achieves compatibility between the safe

and orderly development of civil aviation and the quality of the human environment

283 The opinion is widely held among authors that the use of the term 'for convenience' means that Annexes do not form an integral part of, and possess the same legal force as, the Convention. See infra note 324. 284 Ibid. art. 54(1) [emphasis added]. 285 Thomas Buergenthal, Law-making in the International Civil Aviation Organization (New York: Syracuse University Press, 1969) at 60 [Buergenthal]. 286 ICAO, Annexes to the Chicago Convention, ICAO website, online: <http://\\'Ww.icao.intlcgi/eshopanx.pl?GUESTguest> (date accessed: 13 November 2004). Subjects dealt with in the Annexes are as follows: Personnel Licensing (Annex 1); Rules of the Air (Annex 2); Meteorological Service for International Air Navigation (Annex 3); Aeronautical Charts (Annex 4); Units of Measurement to be Used in Air and Ground Operations (Annex 5); Operation of Aircraft (Annex 6); Aircraft Nationality and Registration Marks (Annex 7); Airworthiness of Aircraft (Annex 8); Facilitation (Annex 9); Aeronautical telecommunications (Annex 10); Air Traffic Services (Annex Il); Search and Rescue (Annex 12); Aircraft Accident and Incident Investigation (Annex 13); Aerodromes (Annex 14); Aeronautical Information Services (Annex 15); Environmental Protection (Annex 16); Security: Safeguarding International Civil Aviation Against Acts ofUnlawful Interference (Annex 17); and The Safe Transport of Dangerous Goods by Air (Annex 18). 287 See ICAO Assembly Resolution A18-12, infra note 292. 288 See text accompanying note 282 supra.

53


remains to be assessed. The present chapter provides a basis for such an assessment by:

considering the need for international SARPs addressing aircraft engine emissions;

reviewing the enabling provisions of the Chicago Convention under which Annexes are

adopted as weIl as the procedure used for the adoption of Annexes; and discussing the

substantive provisions of the Annex 16 Volume II as weIl as recent developments within

ICAO in the field of environmental protection. It is believed that such an exercise will

provide sorne insights as to whether or not the regulatory regime thereby established

effectively achieves the desired goal of maximum compatibility between the safe and

orderly development of civil aviation and the quality ofthe human environment.

3.2 The Need for International SARPs Addressing Aircraft Engine Emissions

At the 1972 United Nations Conference on the Ruman Environment held III

Stockholm,289 ICAO, participating as a specialized agency of the United Nations,

acknowledged "the adverse environmental impact that may be related to aircraft activity

and its [ICAOs] responsibility and that of its member states to achieve maximum

compatibility between the safe and orderly development of civil aviation and the quality

of the human environment.,,29o ICAO's position had previously been developed in ICAO

Assembly Resolution AI8_11,291 at the 18th ordinary session of the Assembly of ICAO

held in Vienna in 1971. Assembly Resolution A18_12292 was also adopted during the 18th

ordinary session. In it, the Assembly93 requested the ICAO Councie94

''with the assistance and co-operation of other bodies of the Organization and other international organizations to continue with vigour the work

289 The United Nations Conference on the Human Environment was held in Stockholm from 5 to 16 June 1972. It was convened pursuant to UN General Assembly Resolution 2398 (XXIII) of 3 December 1968 on a rroposal from Sweden. See Sands, Documents, supra note 120 at 3. 29 Green, supra note 194 at 531 [emphasis added]. 291 ICAO, ICA 0 Position at the International Conference on the Problems of the Human Environment (Stockholm June 1972), Assembly Resolution A18-11 (1971) [ICAO Assembly Resolution A18-11]; see also Annex 16 Volume II, supra note 17, Foreword at v. 292 ICAO, Development of Standards, Recommended Practices and Procedures and/or Guidance Material relating to the Quality of the Human Environment, Assembly Resolution A18-12 (1971) [ICAO Assembly Resolution A18-12]. 293 The Assembly is the plenary body of the ICAO established under article 43 of the Chicago Convention. It comprises representatives of all contracting states of the Chicago Convention and meets once every three years, except for extraordinary meetings. See generally Chicago Convention, supra note 18, arts. 48 & 49. 294 The Council is the permanent body ofICAO responsible to the Assembly. It is presently composed of36 contracting states elected by the Assembly. It is the body responsible for the day to day running ofICAO. See generally Chicago Convention, supra note 18, chapter IX.

54


related to the development of Standards, Recommended Practices and Procedures and/or guidance material dealing with the quality of the human environment. ,,295

Pursuant to these Assembly Resolutions, an ICAO Action Programme regarding the

Environment was established, inc1uding a Study Group to assist the ICAO Secretariat in

certain tasks related to aircraft engine emissions.296 An outgrowth of the programme was

the publication in 1977 of an ICAO Circular297 entitled "Control of Aircraft Engine

Emissions,,298 "This Circular contained guidance material in the form of a certification

procedure for the control of vented fuel, smoke and certain gaseous emissions for new

turbo-jet and turbofan engines intended for propulsion at subsonic speeds.,,299

Following the realization that the subject of aircraft engine emissions was sufficiently

complex to merit the participation of numerous experts in differing fields in addition to

the representatives of contracting states, the ICAO Council established a Committee on

Aircraft Engine Emissions (CAEE) in 1977 to pursue a number of aspects of the

subject.300 At its second meeting held in May 1980, the CAEE made proposaIs for

material to be inc1uded in an Annex to the Chicago Convention.30! At the time, Annex 16,

then titled 'Aircraft Noise' only addressed aircraft noise issues. "The ICAO Council

agreed that it was desirable to include aIl provisions relating to environmental aspects of

aviation in one Annex.,,302

Thus in 1981, following the process of amendment and consultations with member states,

Annex 16 was renamed 'Environmental Protection', incorporating the existing text as

'Volume I - Aircraft Noise', and the new material as 'Volume II - Aircraft Engine

Emissions'. Further, the responsibilities of the Committee on Aircraft Noise and CAEE

295 ICAO Assembly Resolution AI8-12, supra note 292. 296 Annex 16 Volume II, supra note 17, Foreword at v. 297 ICAO, Control of Aircraft Engine Emissions, Circular 134 AN/94 (1977). 298 Annex 16 Volume II, supra note 17, Foreword at v. See also Miller, supra note 16 at 712-13; Green, s'fra note 194 at 532. 29 Annex 16 Volume II, ibid. 300 Ibid. 301 Ibid. 302 Ibid.

55


were merged and entrusted to a new Committee known as the Committee on Aviation

Environmental Protection (CAEP).303

Undoubtedly, the development of the environmental protection standards contained in

Annex 16 Volume II was guided by the philosophy of achieving maximum compatibility

between the safe and orderly development of civil aviation and the quality of the human

environment. 304 This philosophy accords with the concept of sustainable transportation,

defined as "transportation that does not endanger public health or ecosystems and meets

mobility needs consistent with (a) use of renewable resources at below their rates of

regeneration, and (b) use of non-renewable resources at below the rates of development of

renewable substitutes.,,305 A third element added to this definition requires that "the rates

of pollution emission must not exceed the assimilative capacity of the environment.,,306

However, it will be seen at the end of the discussion in this chapter that, the

environmental protection measures adopted under Annex 16 Volume II are only geared

towards the narrow objective ofreducing the levels of emission ofpollutants from aircraft

engines instead of the broader goal of environmental sustainability or sustainable

transportation.307 This is because, with the current level of scientific uncertainty

surrounding the atmospheric effects of aircraft engine emissions and the dynamic

atmospheric processes taking place at altitude, there is no medium by which the

assimilative capacity of the environment in relation to aircraft engine emissions can be

assessed. Thus aIl regulatory measures taken in the absence of such an assessment are, at

best, only directed towards the reduction of emissions generaIly. Before arriving at this

conclusion, however, the next section of this chapter discusses the provisions of the

Chicago Convention under which international SARPs contained in Annexes are adopted.

303 Green, supra note 194 at 532. CAEP is presently composed ofmembers nominated by 22 Contracting States ofICAO and several other observers nominated by international organizations. See ICAO website, online: http://www.icao.int//icao/en/env/caepmem.htm(date accessed: 22 December 2004). 304 Miller, supra note 16 at 713. 305 Paul Stephen Dempsey & Laurence E. Gesell, The Law of Commercial Aviation (Chandler, Arizona: Coast Aire Publications, 2004) at 542. 306 David L. Greene & Michael Wegener, "Sustainable Transport" (1997) 5:3 Journal of Transport Geography 177 at 178. 307 See section 3.4.3 below.

56


3.3 Enabling Provisions orthe Chicago Convention

3.3.1 Definition of International Standards and Recommended Practices

The Chicago Convention does not define the terms "international standards" and

"recommended practices". The ICAO Assembly formulated the requisite definitions as

far back as 1947 in Assembly Resolution Al_31.308 A "Standard" is defined in the

Resolution as:

Any specification for physical characteristics, configuration, materiel, performance, personnel, or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Member States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under article 38 of the Convention.309

A "Recommended Practice" on the other hand is defined as:

Any specification for physical characteristics, configuration, materiel, performance, personnel, or procedure the uniform application of which is recognized as desirable in the interest of safety, regularity, or efficiency of international air navigation, and to which Member States will endeavour to conform in accordance with the Convention.310

These definitions are still in use today although Assembly Resolution Al-31 is no longer

in force. 311 They are reproduced in the foreword to every Annex adopted by the ICAO

Counci1.312 It is apparent from the foregoing definitions that, although both standards and

recommended practices are considered not to be binding mIes as that concept is

traditionally understood,313 notification of differences in respect of standards IS

compulsory for non-complying states. No such obligation exists with respect to

recommended practices which are, at best, only considered to be advisory in nature.

308 IeAO, Definition of"International Standards" and "Recommended Practices", Assembly Resolution AI-31, IeAO Doc. 4411; see Buergenthal, supra note 285 at 60. 309 Assembly Resolution A 1-31 ibid. 310 Ibid. 3\1 IeAO, Assembly Resolutions in Force (as of 5th October 2001), IeAO Doc. 9790. 312 See e.g. Annex 16 Volume II, supra note 17, Foreword at vi. 313 Buergenthal, supra note 285 at 77. See section 3.3.4 below.

57


3.3.2 The Making of International SARPs

The responsibility for the adoption of SARPs by JCAO is cast upon the Council as one of

its mandatory functions.314 The procedure for the adoption of SARPs begins with the

acceptance of proposaIs by the Council from the Assembly, the Air Navigation

Commission (on purely technical matters), the Air Transport Committee (on purely

economic matters), the CAEP (on environmental issues), contracting states and

international organizations?15 Upon receipt of a proposaI, the Council entrusts the task of

developing and formulating SARPs on the subject to the relevant Commission or

Committee (Secretariat), i.e. the Air Navigation Commission, the Air Transport

Committee, the CAEP or such other body as the case may be. Each of these bodies in turn

coordinates the activities of various sub-committees, working groups or international

conferences convened by them to help formulate and review different SARPS?16

The various sub-groups report back to their coordinating Secretariat, which conducts a

preliminary review of the outcome of their work.317 The original recommendations for

core SARP s, together with any alternative proposaIs developed by the Secretariat, are

then submitted to an contracting states and selected international organizations for

comment.318 Comments received from states and international organizations are analyzed

by the Secretariat and a final review is undertaken at which the final text of the proposed

SARPs is adopted. These are then presented to the Council for adoption.319 Under article

314 Chicago Convention, supra note 18, art. 54(1). 315 ICAO, Making an ICAO Standard, ICAO website, online: <http://www.icao.int/cgiigotom.pl?icao/en/anb/mais/index.html> (date accessed: 23 November 2004) [Making an ICAO Standard]. The Air Navigation Commission is a body comprised of 15 experts in the science and practice of aeronautics nominated by contracting states and appointed by the Council. Its duties include the consideration and recommendation to the Council for adoption of Annexes to the Chicago Convention. See Chicago Convention, supra note 18, arts. 54(e), 56 and 57. The Air Transport Committee, on the other hand, is appointed from among representatives of the members of the Council, to which it is responsible. The Council also defmes its duties. (Ibid. art. 54(d». Traditionally, the Air Navigation Commission has focused on technical matters whilst the Air Transport Committee has focused on matters of economic concem, such as facilitation of international air transport and security. 316 Buergenthal, supra note 285 at 62. 317 Making an ICAO Standard, supra note 315. The preliminary review considers controversial matters, which in the opinion of the Commission or Committee require examination before submission to contracting states for their comments. 318 Ibid. Traditionally, states are given a period ofthree months within which to review these proposaIs and to submit their comments. See Buergenthal, supra note 285 at 63, n 13. 319 Ibid.

58


90(a) of the Chicago Convention, the adoption of an Annex shaH require the vote oftwo

thirds of the Council at a meeting caHed for that purpose. This requirement has been

interpreted as the vote oftwo-thirds ofthe total membership ofthe Counci1.320

It is important to note the role of contracting states in this procedure. They are free to

participate in the deliberations of the sub-groups. More importantly, the proposaIs for

SARPs must be submitted to them for comment after the preliminary review of the

Secretariat.321 As rightly put by one commentator, "[t]his consultative process reduces the

likelihood that any SARPS will be adopted to which a significant number of the

Contracting States is opposed.'.322 However, since the membership of ICAO consists of

the most advanced industrial nations of the world as weH as the most underdeveloped

ones, it may readily be assumed that the use of the consensus-oriented procedure outlined

above inevitably results in the adoption of compromise, watered-down regulations that

fail to optimaHy address the issues concemed.

3.3.3 Their Becoming Effective and Coming into Force

Article 90 of the Chicago Convention provides:

(a) The adoption by the Council of the Annexes described in Article 54, subparagraph (1), shaH require the vote of two-thirds of the Council at a meeting caHed for that purpose and shaH then be submitted by the Council to each contracting State. Any such Annex or any amendment of an Annex shall become effective within three months after its submission to the contracting States or at the end of such longer period of time as the Council may prescribe, unless in the meantime a majority of the contracting States register their disapproval with the Council. (b) The Council shaH immediately notify aH contracting states of the coming into force of any Annex or Amendment thereto.323

The Convention does not define the phrases "become effective" and "come into force" as

used in article 90. Neither is there any indication as to when an Annex is deemed to have

come into force within the meaning of article 90(b), although the Council is required

immediately to notify all contracting states of this event. These observations, coupled

320 Buergenthal, supra note 285 at 63. 321 Ibid. 322 Ibid. 323 Chicago Convention, supra note 18, art. 90 [emphasis added].

59


with the fact that SARPs adopted by the ICAO Council are designated as Annexes to the

Chicago Convention only for the sake of convenience and, as such, do not fonn an

integral part of, and possess the same legal force as, the Convention,324 raise serious

doubts about the legal status and effect of ICAO SARPs.

In the opinion of one eminent author, at least three interpretations of article 90(b) are

possible.325 The language used in the provision might imply on the one hand (1) that, an

Annex which has become effective under article 90(a) requires a further legislative act

before it is deemed to have been fonnally enacted; on the other hand (2) that, the

expression "coming into force" that appearS in article 90(b) is used as a synonym for the

expression "becoming effective" as appears in article 90(a); or (3) that "coming into

force" was used in article 90(b) to describe not one but two distinct concepts traditionally

associated with this phrase: "to be enacted" as well as "to become applicable".326 Since

the Convention pro vides no clues, one has no other option but to consider the practice of

ICAO in order to as certain the meaning of article 90.

"In 1948, the ICAO Council interpreted article 90 of the Chicago Convention, albeit only

by implication, when it promulgated the 'Standard Fonn Resolution for the Adoption of

Annexes,.,,327 Paragraph 2 of the Resolution provides a period of 120 days following the

adoption of the Annex within which contracting states must register their disapproval of

the Annex. On the said 120th day, the Annex shall become effective provided a majority

of contracting states have not registered their disapproval to it. Paragraph 6 of the

Resolution provides that the Annex shall come into force and be implemented on the

324 Ibid. art 54(1); Bin Cheng, The Law of International Air Transport (New York: Oceana, 1962) at 64 [Bin Cheng]; Roderick D. van Dam, "Regulating International Civil Aviation: An ICAO Perspective" in Tanja L. Masson-Zwaan & Pablo M.J. Mendes-de-Leon, eds., Air and Space Law: De Lege Ferenda (Dordrecht: Martinus Nijhoff, 1992) 11at 13 [van Dam]; Detter, infra note 347 at 248 where she notes that unlike the Technical Annexes to the Paris Convention of 1919, which formed part of, and had the same force as the Convention, the Annexes to the Chicago Convention do not have the same compulsory force as the Convention. They are placed on a more voluntary basis, being subject to a number of safeguards. 325 Buergenthal, supra note 285 at 69. He notes further that the legislative history relating to article 90 of the Chicago Convention is, at best, inconclusive on this point. (Ibid. n. 40). 326 Ibid. 327 Ibid. at 70.

60


365th day following its adoption, and under paragraph 7, states are to be notified forthwith

of the becoming effective as well as of the date of coming into force of the Annex.328

Though not a formaI amendment of article 90 of the Chicago Convention, the use of the

phrase "shall come into force and be implemented" in paragraph 6 of the Standard Form

Resolution raised concems for sorne members of the ICAO Council in 1951 during the

adoption of Annex 14 (Aerodromes).329 It was argued that if implementation meant

carrying out the provisions of the Annex, the Council was acting in contravention of the

spirit of the Convention by fixing an implementation date because of the heavy burden it

would place on states if they had to implement the Standards with respect to all their

airports on one specified date.330 These arguments made it abundantly evident to the

ICAO Council that states had no clear understanding of their obligations under the

Chicago Convention, and that this confusion was even compounded by the language used

in the Standard Form Resolution for the Adoption of Annexes. Contracting states had no

idea of what was meant when the Convention spoke of the becoming effective or the

coming into force of SARPs contained in Annexes adopted by the Council.

The ensuing debates in the ICAO Council eventually lead to the adoption of a Revised

Form of Resolution of Adoption of an Annex in 1953.331 Paragraph 1 of the Revised

Form of Resolution announces the adoption of SARPs by the ICAO Council and the date

of adoption of the Annex in which they are contained. The date upon which the SARPs

contained in the said Annex shall become effective is prescribed expressly in paragraph 2,

subject to the right of states to register their disapproval. Paragraph 3 reads: "THE

COUNCIL RESOLVES that those standards and recommended practices that have

become effective shall become applicable in accordance with Chapter ... [Chapter on

328 ICAO, Proceedings of the Third Session of the Council, 1948, ICAO Doc. 7310 C/846 at 24-25 [emphasis added]. See also ibid. at 69-76 for a comprehensive outIine of the discussions within the ICAO Council before and after the adoption of the Standard Form Resolution for the Adoption of Annexes. 329 Buergenthal, supra note 285 at 71. 330 Ibid. 331 ICAO, Proceedings of the Eighteenth Session of the Council, 1953, ICAO Doc. 7361 C/858, Appendix A at 199. The relevant parts of the Revised Form of Resolution for the Adoption of an Annex are reproduced in Buergenthal, supra note 285 at 74.

61


Applicability] of the Annex.,,332 The Revised Resolution of Adoption has remained in

effect since its adoption in 1953.

In the opinion of Dr. Thomas Buergenthal, an analysis of the Revised Form of Resolution

of Adoption of an Annex and the debates preceding its adoption indicates that the ICAO

Council had always proceeded on the assumption that "an Annex, which has 'become

effective' in accordance with the provisions of article 90(a), has acquired the status of a

duly enacted legislative act.,,333 "Furthermore, by settling on 'shaH become applicable' in

its revised Resolution of Adoption instead of retaining 'shaH come into force and be

implemented,' the Council clearly intended to dispel the erroneous assumption that the

Contracting States were under an obligation to implement an Annex as soon as it had

entered into force.,,334 Thus, "become effective" as used in article 90(a) means that the

ICAO Council has duly enacted the Annex, and "coming into force" as used in article

90(b) means that the Annex has become applicable.335

It then foHows that until the SARPs contained in an Annex have come into force, or

become applicable, they do not create legal obligations as far as the member states of

ICAO are concemed,336 although they may have become effective (i.e. they may have

been duly enacted as law). It will be seen shortly that this position results in an absurd

situation in relation to the dut y of contracting states to notify ICAO about differences

between their national regulations and practices and the SARPs enacted by the ICAO

Council. 337 It is suggested that an amendment of the provisions along the lines of the

Revised Form of Resolution of Adoption ofan Annex would bring about sorne clarity and

certainty as regards the legal effect of SARPs adopted by the ICAO Council.

One issue that remains very clear from the provisions of article 90 of the Chicago

Convention is that SARPs are not binding on contracting states against their wilL Article

332 Ibid. [emphasis added]; See also Buergenthal, ibid. 333 Buergenthal, ibid. at 74-75. 334 Ibid. 335 Ibid. at 75. 336 Ibid. at 76. 337 See section 3.3.4 below.

62


90(a) permits a majority of the contracting states, after the ICAO Council has notified

them of the adoption of an Annex and before the Annex becomes effective, to register

their disapproval of the said Annex338 or any part thereof.339 If the majority of the

contracting states so indicate their disapproval of the Annex, it does not attain the status

of being enacted and fails accordingly. However, this situation has never occurred in

practice.

3.3.4 Notification of Differences by States

Under article 38 of the Chicago Convention, the contracting states have no legal

obligation to implement or comply with the provisions of a duly enacted Annex unless

they find it practicable to do so, and they so notify ICAO.34o In other words, the SARPs

prescribed in an Annex are not binding legislative enactments as that concept is

traditionally understood.341 Article 38 provides:

Any State which finds it impracticable to comply in aIl respects with any such international standard or procedure, or to bring its own regulations or practices into full accord with any international standard or procedure after amendment of the latter, or which deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard, shall give immediate notification to the International Civil Aviation Organization of the differences between its own practice and that established by the international standard. In the case of amendments to international standards, any State which does not make the appropriate amendments to its own regulations or practices shall give notice to the Council within sixt Y days of the adoption of the amendment to the international standard, or indicate the action which it proposes to take. In any such case, the Council shall make immediate notification to aIl other states of the difference which exists between one or more features of an international standard and the corresponding national practice of that State.342

By necessary implication, article 38 entrusts each contracting state with the discretion to

decide whether or not to comply with a given SARP promulgated by the ICAO Council.

By requiring the notification of differences in aIl those instances in which a contracting

338 Bin Cheng, supra note 324 at 64. 339 Buergenthal, supra note 285 at 66-69. 340 Ibid. at 76. 341 Ibid. at 77. 342 Chicago Convention, supra note 18, art. 38 [emphasis added].

63


state might conceivably depart from an international standard, article 38 inherently

recognizes that states are free not to adhere to the SARPS?43 The only dut Y incumbent

upon a contracting state deciding to depart from an international SARP is to give

immediate notification to the ICAO of the differences between its own regulations or

practices and those established by the international standard in question.344

It has been argued by sorne authors that this discretion may be exercised by a contracting

state in respect of an existing SARP at any time.345 Thus, a contracting state may notify

ICAO of differences between its own regulations and practices and those established by

sorne existing SARPs although that state might have previously adhered to them. In

support ofthis assertion, Dr. Thomas Buergenthal notes that

[t]his result follows from the notification requirement prescribed in article 38 for differences that arise whenever astate 'deems it necessary to adopt regulations or practices differing in any particular respect from those established by an international standard,' for if a state must give notice whenever it enacts legislation in conflict with a standard to which it may or may not have adhered, it is at any time free to take this action so long as it complies with the necessary formalities. 346

A contrary argument has however been made by Ingrid Detter. Commenting on article 38

in 1965, she placed emphasis on the words 'shall give immediate notification' as used in

article 38 and disagreed with any interpretation of article 38 that would suggest that "a

State 'at any time' can avoid to be bound by Standards; [and] there would be no legal

obligation." She argued instead that, "[the] practice shows that all Standards indicate a

time-limit for reservations",347 but failed to cite the practice to which she was referring. It

appears that Ingrid Detter could not make a distinction between the right of states to

register their disapproval with an Annex prior to its becoming effective, as provided in

article 90, and the right of states to notify ICAO of differences between their regulations

and practices and those established by SARPs after the SARPs have become effective, as

343 Buergenthal, supra note 285 at 77-78. 344 Bin Cheng, supra note 324 at 65. 345 Buergenthal, supra note 285 at 78. 346 Ibid. at 79. 347 Ingrid Detter, Law Making by International Organizations (Stockholm: P.A. Norstedt & Soners Forlag, 1965) at 251 [Detter].

64


provided in article 38.348 Be that as it may, the views of Dr. Buergenthal on this issue are

more persuasive and are thus to be preferred.

The obligation of contracting states to notify ICAO of differences under article 38 of the

Chicago Convention is two pronged. Immediate notification by the state is required

whenever the practices or regulations of a state do not conform to or depart from those

'established' by an international standard. On the other hand, notification by the state is

required to be made within sixt Y days of the 'adoption' of an amendment to an

international standard whenever a contracting state does not intend to conform its

practices or regulations to the provisions of the amendment. 349 In the opinion of Dr.

Thomas Buergenthal, which is shared by the present author, "[t]he ostensibly

unambiguous language of Article 38 raises certain problems, because the terminology

used in this provision does not correspond to the legislative scheme prescribed in Article

90 for the adoption and promulgation of international standards.,,350

As noted above, article 38 requires the notification of differences by contracting states

immediately after a standard has been established. It is however not very clear whether

the establishment of a standard refers to its becoming effective (enactment) or its coming

into force (becoming applicable) as provided in article 90.351 This textual discrepancy

between articles 38 and 90 is even more befuddling when one considers the obligation of

a contracting state to notify ICAO of differences between its national practices or

regulations and those required by amendments to an international standard. Article 38

requires in this case that the notification be made within sixt Y days of the adoption of the

348 This fact becomes evident upon further reading ofpage 251 ofher treatise. She states: Only a relative1y small number of States have disapproved of the Annexes. On 15th

September 1948, the last day for reservations, the disapproval of eight states had been registered to Annexes 1 and II, whereas no reservations had been made to Annex V. To the other Annexes, reservations had only been made to a limited extent. See ibid. at 251 [emphasis added]

Apparently, she was referring to disapprovals rather than notification of differences when she used the word 'reservations '. Indeed, whereas article 90 of the Chicago Convention indicates a time limit of three months for the entry of disapprovals by contracting states, no such time limit is indicated in article 38 for the notification of differences, except in the case of amendments to Annexes. 349 Buergenthal, supra note 285 at 88-89. 350 Ibid. at 89. 351 Ibid.

65


amendment. 352 It will be recalled that upon its adoption by the ICAO Council, an Annex

or an amendment thereto does not become effective until after three months, provided that

within that period, a majority of states do not register their disapproval with the Annex or

amendment thereto.353 Since the sixty-day period prescribed in article 38 for the

notification of differences begins upon the adoption of the amendment to the international

standard, the deadline for the notification of differences would expire thirty days before it

would be known whether the amendment has in fact become effective.354 This situation is

very absurd indeed.

Once again, ICAO has attempted to resolve this inconsistency through its own internaI

mechanisms but without recourse to a formaI amendment of the Chicago Convention. In

its 1948 Standard Form Resolution for the Adoption of Annexes/55 the ICAO Council

prescribed that an Annex, or an amendment thereto, shall become effective 120 days after

its adoption by the Council unless it had in the meantime been disapproved by a majority

of the contracting states.

On the issue of notification of differences, paragraph 7 of the Standard Form Resolution

requires that: (1) on or before the 270th day following the adoption of an Annex or an

amendment thereto, each contracting state should notify ICAO of any differences that

will exist between its national regulations or practices and those contained in the said

Annex or amendment upon the coming into force ofthe latter so as to enable ICAO notify

aIl contracting states thereof; and (2) that any difference which occurs after the coming

into force of the Annex or amendment shall be immediately notified to ICAO.356 This

352 Ibid. 353 Chicago Convention, supra note 18, art. 90(a); See also Section 3.2.2 above. 354 Buergenthal, supra note 285 at 89-90. Dr. Buergenthal attributes the extremely poor draftsrnanship exhibited in articles 38 and 90 to the fact that the framers of the Convention had initially assumed that the Annexes would be drafted at the Chicago Conference and would form an integral part of the Chicago Convention. However, due to lack oftime, the attempt to adopt the final set of Annexes at Chicago was abandoned shortly before the Conference adjourned. This necessitated last-minute adjustments to the text of the Convention, which were probably not very carefully examined, thus leading to absurd results as we have here. 355 Proceedings of the Third Session of the Co un cil 1948, supra note 328 at 24-26. See also Buergenthal, ibid. at 90-91. 356 Ibid.

66


formulation thus provides states sorne reasonable time period, after the becoming

effective of an Annex or amendment thereto, to notify ICAO of differences.

The formulation above was carried over into the Revised Form of Resolution for the

Adoption of an Annex,357 adopted by the ICAO Council in 1953 with a minor addition.

Under paragraph 4(ii)(b) of the Revised Form, each contracting state is required to notify

ICAO, before the dates on which the standards will become applicable, of the date or

dates by which it will have complied with the provisions of the standards.358 In keeping .

with the comments made with respect to article 90 of the Chicago Convention, it is

suggested that a formaI amendment of article 38 along the lines of the approach adopted

in the Revised Form of Resolution would bring about clarity and certainty so far as the

obligations of contracting states in that regard are concemed.

One other major issue that arises from the provisions of article 38 of the Chicago

Convention relates to the legal consequences that flow from the failure of a contracting

state to notify ICAO of differences after an Annex has become applicable. Arguably, the

ICAO Council has power under the Convention to impose sanctions against contracting

states that fail to report differences.359 However, the Convention is silent as to whether or

not the Annex in question is binding on a contracting state that fails to notify ICAO of

any differences between its national practices and regulations and those established by the

Annex. There has been sorne debate on this issue in the literature.

On the one hand, one group of authors assert that if states do not file differences between

their own regulations and practices and those established by the Annex, they are bound by

the standards and are deemed to have implemented them.36o Indeed, sorne eminent

357 Proceedings of the Eighteenth Session of the Counci11953, Appendix A, supra note 331. 358 Ibid. paragraph 4(ii)(b). See also Buergenthal, supra note 285 at 92. 359 See Chicago Convention, supra note 18 arts. 54(j) and (k) as well as arts. 84-88. 360 Jacques Ducrest, "Legislative and Quasi-Legislative Functions ofICAO: Towards Improved Efficiency" (1995) XX:I Ann. Air & Sp. L. 343 at 355 [Ducrest]; George A. Codding, "Contributions of the World Health Organization and the International Civil Aviation Organization to the Development of International Law" (1965) Proceedings of the American Society ofInternational Law 147 at 149 [Codding] who notes "[a]ny regulation thus adopted 'becomes effective' ... three months after its submission to the contracting states or within some other time limit established by the Council, unless the majority of contracting states register their disapproval with the Council. Silence, therefore, means approval."; Charles Henry

67


authors in this group have gone to the extent of asserting that a contracting state which

fails to notify a difference is internationally liable to another contracting state, or the

nationals thereof, which suffers damage as a result of a mistaken belief that the lack of

notification meant compliance with the international standards.361

On the other hand, Dr. Thomas Buergenthal holds a different opinion, one that is shared

by the present author. He cites the practice of ICAO in support of the view that ICAO

do es not presume failure by a contracting state to notify differences as indicating

compliance with the provisions of the Annex in question.362 He notes that,

[i]n the early years of ICAO's existence, the Council, when adopting an Annex or amendments thereto, often stipulated in the preamble to the resolution of adoption that each Contracting State 'is presumed to have complied with the provisions of an Annex on the date on which it came into force unless, prior to that date, it had notified the Organization of any differences between its national regulations and practices and the international standards contained in the Annex.' By 1953 this clause had fallen into disuse.363

He notes further that, concurrently with the foregoing development, the ICAO Council

began to request each contracting state to notify ICAO, before the dates on which the

standards will become applicable, of the date or dates by which it will have complied with

the provisions of the standards.364 By formally requesting notification of compliance,

ICAO may be deemed to have determined that no presumption of compliance attaches to

Alexandrowicz, The Law-making Functions of the Specialised Agencies of the United Nations (London, UK: Angus & Robertson, 1973) at 46 [Alexandrowicz] who makes tbis point, albeit indirectly, when he states: "While standards are not binding in intemationallaw on member states ... , the duty of notification of departure from a standard (passed by the Council) is a legal duty, for all member States must know to what extent a standard is uniform and to what extent there are deviations ... " 361 Bin Cheng, "CentrifugaI Tendencies in Air Law" (1957) 10 CUIT. Legal Probs. 200 at 205-06 [Cheng, CentrifugaI Tendencies]; Ducrest, ibid. at 355, n. 44. 362 Buergenthal, supra note 285 at 99; see also van Dam, supra note 324 at 14-15 where he argues that, although it is tempting to conclude that no news is good news and no reaction by astate means full adherence to a standard (as article 38 only requires action in case of a difference), it would be incorrect to assume that non-responsive states have fully implemented the relevant standards. 363 Buergenthal, ibid. 364 On this point, Dr. Thomas Buergentha1 cites the Revised Form of Resolution of Adoption of an Annex adopted by the ICAO Council in 1953, discussed above in section 3.3.2 ofthis study.

68


the failure to notify differences under article 38. "It is thus readily apparent that ICAO

itselfno longer assumes that silence denotes compliance."365

3.3.5 Implementation of SARPs by Contracting States and ICAO's Universal Audit

Programmes

As indicated in the foregoing discussions, although SARPs are international in nature, aIl

contracting states of the Chicago Convention are expected to implement them at the

nationallevel by bringing their national regulations and practices into full accord with the

SARPs upon their coming into force. 366 States that find it impracticable to meet this

expectation, as weIl as those who find it necessary to adopt regulations or practices

different in any respect from those established by the SARPs, are only obliged to notify

ICAO of the said situation within the time frames discussed above.367 Thus, the

implementation of SARPs is a matter entirely within the discretion of contracting states.

In order to promote the national implementation of SARPs by contracting states, ICAO

has, since 1999, taken sorne measures which merit sorne discussion in this study. At its

32nd ordinary session held in 1998, the ICAO Assembly adopted a Resolution368 calling

for the establishment of a Universal Safety Oversight Audit Programme (USOAP),

"comprising regular, mandatory, systematic and harmonized safety audits, to be carried

out by ICAO" in aIl contracting states.369 The ICAO Assembly directed that the

programme should be brought into effect from January 1 1999, and should include "a

systematic monitoring and reporting mechanism on the implementation of safety-related

Standards and Recommended Practices.,,37o In other words, the purpose of the

programme is to assess the degree to which contracting states have implemented the

safety-related SARPs contained in the Annexes to the Chicago Convention.

365 Buergenthal, supra note 285 at 100. 366 Chicago Convention, supra note 18, art. 38. 367 Ibid. See also section 3.3.4 above. 368 ICAO, Establishment of an ICAO Universal Safety Oversight Audit Programme, Assembly Resolution A32-11 in Resolutions Adopted at the 320d Session of the Assembly, Provisional Edition, ICAO website, online: http://www.icao.int/icao/en/assembl/a32Iresolutions.pdf(date accessed 24 December 2004). 369 Ibid. 370 Ibid. [emphasis added].

69

Regulation of Aircraft Engine Emissions [rom International Civil Aviation

As a sign of respect for the sovereignty of states, the ICAO Assembly, while urging

contracting states to agree to be audited upon the initiative of ICAO, directed that the

consent of the state to be audited should be sought, through the execution of a bilateral

Memorandum of Understanding with ICAO, prior to the audit, and that the results should

be used for safety-related purposes only.371

The USOAP was indeed brought into effect on January 1 1999 and, as at the end of that

year, 49 states had been audited.372 Initially, the safety-related Annexes covered under the

programme were: Annex 1 - Personnel Licensing, Annex 6 - Operation of Aircraft and

Annex 8 - Airworthiness of Aircraft. Following the successful implementation of the

programme in almost all contracting states by 2001, the ICAO Assembly, at its 33rd

ordinary session, adopted yet another Resolution373 calling for its continuation and

expansion. Specifically, the Assembly resolved that the programme be expanded to coyer

Annex Il - Air Traffic Services and Annex 14 - Aerodromes as of 2004, and further

instructed the Secretary General of ICAO to undertake a study regarding the expansion of

the programme to other safety-related fields, in particular, the conduct of audits on the

core elements of Annex 13 - Aircraft Accident and Incident Investigation, as soon as

possible.374

With the terrorist events of September Il 2001 fresh in mind, the 33rd ordinary session of

the ICAO Assembly also focused on the issue of aviation security. In this connection, a

Resolution375 on the misuse of civil aircraft as weapons of destruction was adopted. In it,

the ICAO Assembly directed the ICAO Council and Secretary General to consider the

371 Ibid. 372 ICAO, Milestone Achievements of 1999 Emphasize Safety and Security of Global Air Transport, News Release PlO 19/99, ICAO website, online: http://www.icao.intlicao/enlnr/1999/pio9919.htm (date accessed 24 December 2004). 373 ICAO, Continuation and Expansion of the ICA 0 Universal Safety Oversight Audit Programme, Assembly Resolution A33-8 in Resolutions Adopted at the 33rd Session of the Assembly, Provisional Edition, ICAO website, online: http://www.icao.intlicao/enlres/a33 8.htm (date accessed 24 December 2004). 374 Ibid. 375 ICAO, Declaration on Misuse of Civil Aircraft as Weapons of Destruction and Other Terrorist Acts involving Civil Aviation, Assembly Resolution A33-1 in Resolutions Adopted at the 33rd Session of the Assembly, Provisional Edition, ICAO website, online: http://www.icao.intlicao/en/assembl/a33/resolutions a33.pdf(date accessed 24 December 2004).

70


establishment of an audit programme, to be modeled along the lines of the USOAP, to

assess the implementation of SARPs relating to airport security arrangements and civil

aviation security programmes (i.e. security-related SARPs). The ICAO Council was also

directed to convene a High-Level Ministerial Conference on Aviation Security with the

objective of strengthening ICAO's role in the adoption of SARPs in the field of aviation

security, and in the auditing of their implementation.376

At the High-Level Ministerial Conference, convened in February 2002, a global strategy

for strengthening worldwide aviation security was adopted, a central part ofwhich was an

ICAO Aviation Security Plan of Action. The Plan of Action proposed "regular,

mandatory, systematic and harmonized audits to enable the evaluation of aviation security

in aH member states.,,377 In accordance with the foregoing developments, the ICAO

Council adopted the Aviation Security Plan of Action in June 2002 and the first security

audit was carried out in November 2002.378

The implementation of the above mentioned audit programmes received considerable

attention during the 35th ordinary session of the ICAO Assembly, held in 2004. Among

the resolutions adopted on the subject, the ICAO Assembly requested the Secretary

General, with effect from 1 January 2005, to restructure the USOAP to adopt a

comprehensive systems approach in conducting safety oversight audits in aH contracting

states.379 The comprehensive systems approach, in the opinion of the ICAO Assembly,

should, inter aUa, maintain as core elements the safety provisions contained in Annexes

1, 6, 8, Il, 13 and 14, and should also reflect the critical elements of a safety oversight

system.380 The ICAO Assembly also adopted several other resolutions providing policy

guidance for the implementation and financing of the Univers al Security Audit

376 Ibid. 377 See ICAO, Universal Security Audit Programme - Background, ICAO website, online: htip://www.icao.intJicao/enlatb/asa/Background.htlll (date accessed 24 Decelllber 2004). 378 Ibid. 379 See ICAO, Transition to a Comprehensive Systems Approachfor Audits in the ICA 0 Universal Safety Oversight Audit Programme (USOAP), Asselllbly Resolution A35-6 in Resolutions Adopted at the 35th

Session of the Asselllbly, Provisional Edition, ICAO website, online: http://www.icao.intJicao/en/asselllbl/a35/a35 res prov en.pdf (date accessed 24 Decelllber 2004). 380 Ibid.

71


Programme (USAP).381 The subject ofimplementation and/or compliance with the regime

established by ICAO Annexes will be explored in detail in chapter 4 of this study. Suffice

it to say, however, that to date, there is no such thing as an audit programme for the

assessment of contracting states' implementation of Annex 16 Volume II.

3.4 Substantive Provisions of Annex 16 Volume II: International SARPs on Aircraft

Engine Emissions

Through an engine certification scheme, Annex 16 Volume II contains standards for the

control of smoke and gaseous emissions from aircraft engaged in international civil

aviation.382 It also contains standards that require certification of aircraft and/or aircraft

engines for the purpose of preventing intentional fuel venting, a practice which involves

the intentional discharge into the atmosphere of liquid fuel from the fuel nozzle manifolds

of aircraft during the process of engine shutdown following normal flight or ground

operations.383

Annex 16 Volume II is organized into three parts. Part 1 contains definitions and symbols

used in the Annex and the meanings ascribed to them. Part II contains standards relating

to vented fuel and Part III contains standards relating to smoke and gaseous emissions

certification, applicable to different classes of aircraft engines where such engines are

fitted to aircraft engaged in international civil aviation.384

3.4.1 Standards relating to Vented Fuel

Part II chapter 1 of Annex 16 Volume II outlines the scope of applicability of the

standards relating to vented fuel. AlI turbine engine powered aircraft intended for

operation in international air navigation and manufactured after 18 February 1982 are

381 These include: ICAO, Consolidated Statement of Continuing ICAO Policies Related to the Safeguarding of International Civil Aviation Against Acts of Unlawfol Interference, Assembly Resolution A35-9 Appendix E - The ICAO Univers al Security Audit Programme; ICAO, Financial Contributions to the Aviation Security Plan of Action, Assembly Resolution A35-10 both in Resolutions Adopted at the 35th

Session of the Assembly, Provisional Edition, ICAO website, online: http://www.icao.intlicao/enlassembl/a35/a35 res prov en.pdf(date accessed 24 December 2004). 382 John Crayston, "Civil Aviation and the Environment" (1993) 16:1-2 UNEP Industry and Environment 51 at 53 [Crayston]; Dobbie, supra note 21 at 66; Miller, supra note 16 at 713. 383 Annex 16 Volume II, supra note 17, part II; Miller, ibid. 384 Annex 16 Volume II, ibid. Foreword at v.

72


required to be certified by the certificating authority85 in relation to prevention of

intentional fuel venting. The certificating authority can only grant the said certification on

the basis of satisfactory evidence that either the aircraft or the aircraft engines in question

comply with the requirements of part II chapter 2 of the Annex?86 Part II chapter 2

contains only one provision, and it states:

Aircraft shall be so designed and constructed as to prevent the intentional dis charge into the atmosphere of liquid fuel from the fuel nozzle manifolds resulting from the fsrocess of engine shutdown following normal flight or ground operations. 87

In accordance with article 33 of the Chicago Convention,388 the Annex obliges

Contracting States to recognize as valid, any certification relating to fuel venting granted

by the certificating authority of another Contracting State, provided that the requirements

under which such certification was granted are not less stringent than those contained in

the Annex.389 There are no provisions in the Annex as to what avenues for redress are

open to a contracting state in the event that the certification granted by another

contracting state was so granted under requirements less stringent than those contained in

the Annex. Arguably, states may resort to the dispute settlement provisions of the

Chicago Convention and apply to the ICAO Council for a decision in such a case.390

The language of the Part II of the Annex suggests that "[t]he aircraft or engme

manufacturer has to demonstrate [to the certificating authority with satisfactory evidence]

that his product meets the ... emission [and fuel venting] standards, in the same way that

it has to meet safety standards, before it can enter commercial service.,,391 However, these

provisions are only applicable to aircraft manufactured after 18 February 1982.

385 Ibid. Part II chapter 1 s. 1.1. The Certificating Authority is not defined in Part 1 of the Annex. It is however assumed that this is a reference to the relevant National Civil Aviation Authority of the state of nationaIity/registration of the aircraft. (Ibid. § 1.3). 386 Ibid. Part II chapter 1 § 1.2. 387 Ibid. Part II chapter 2. 388 Chicago Convention, supra note 18, art. 33. This provision obliges contracting states to recognize as vaIid aIl certificates of airworthiness or competency issued or rendered vaIid by other contracting states provided that the requirements under which such certificates issued or rendered vaIid are equal to or above the minimum standards established pursuant to the Convention. 389 Annex 16 Volume II, supra note 17, Part II chapter 1 § 1.3. 390 Chicago Convention, supra note 18, art 84. 391 Dobbie, supra note 21 at 66; see also Miller, supra note 16 at 714.

73


Considering the fact that the average usefullife of a commercial aircraft is about 25 years,

and that a sizeable number of commercial aircraft in service today were manufactured

before the cut-off date, it may be argued that the standards contained in part II of the

Annex only control fuel venting partially. Moreover, the provisions give no indication as

to whether the certification, once granted, is subject to expiry and renewal, and if so, how

frequently this should be done.

3.4.2 Standards relating to SmQke and Gaseous Emissions

Part III of Annex 16 Volume II contains standards relating to emissions certification of

aircraft engines. Unlike certification in relation to vented fuel, the emissions certification

standards require the certification of aircraft engines and not the aircraft to which they are

fitted.392 The implications of this distinction are discussed shortly.393 As in the case of the

standards relating to vented fuel, the certificating authority can only grant emissions

certification on the basis of satisfactory evidence that the engine in question complies

with requirements that are as stringent as the provisions of the Annex.394 Certain

information applicable to the engine type is required to be inc1uded in the document

attesting to emissions certification for each individual engine,395 and contracting states are

obliged to recognize emissions certifications granted by other contracting states so long as

the requirements under which they were granted are no less stringent than those contained

in the Annex.396

392 Annex 16 Volume II, supra note 17, part III chapter 1 § 1.1. 393 See section 3.4.3 be1ow. 394 Annex 16 Volume II, supra note 17, part III chapter 1 § 1.2. This provision means in effect that states may adopt requirements more stringent than those prescribed in the Annex. This is the reason why sorne authors have c1assified ICAO standards as 'minimum standards'. See Pablo M.J. Mendes de Leon, "Aviation and the Environment: Changing Perceptions" (1997) XXII:3 Air & Space L. 131 [Mendes de Leon]. 395 Annex 16 Volume II, ibid. Part III chapter 1 § 1.3. The information required should, at least, inc1ude (1) the name of the certificating authority; (2) the manufacturer's type and mode1 designation; (3) a statement of any additional modifications incorporated in the engine for purposes of compliance with the certification requirements; (4) the rated output; (5) the reference pressure ratio; (6) a statement indicating compliance with smoke number requirements; and (7) a statement indicating compliance with gaseous pollutant requirements. 396 Ibid. § 1.4.

74

Regulation of Aireraft Engine Emissions [rom International Civil Aviation

Different standards are prescribed for aircraft engines intended for propulsion only at

subsonic speeds397 and those intended for propulsion at supersonic speeds.398 In both

cases, however, engines are required to be tested according to a specified reference

landing and take-off (LTO) cycle399 at specified thrust settings and atmospheric

conditions using specifie fuel. The emissions measured and reported from the tests must

conform to the levels specified by the standards before the engine can be certified. The

emissions that are required to be controlled for certification of aircraft engines are smoke

and gaseous emissions.400 Used as a generic term in Annex 16 Volume II, the phrase

'gaseous emissions' encompasses three substances: unburned hydrocarbons (HC), carbon

monoxide (CO) and oxides ofnitrogen (NOx).401

Since the standards were originally designed to respond to concems regarding air quality

in the vicinity of airports, they establish limits for the emission of smoke and gaseous

emissions for a reference LTO cycle below 915 meters (3000 feet).402 The issue as to

whether or not the certification standards coyer other flight regimes apart from the LTO

cycle such as climb and cruise has been the subject of debate within CAEP over the years.

The implications ofthis issue will be considered shortly.403

3.4.2.1 Engines intendedfor Subsonie Propulsion

The standards for the certification of engines intended for propulsion only at subsonic

speeds are applicable to aIl such turbo-jet and turbofan engines as weIl as to other engines

designed for applications that otherwise would have been performed by turbo-jet and

397 Ibid. Part III chapter 2. 398 Ibid. Part III chapter 3. 399 The reference emissions landing and take-off (LTO) cycle consists of four operating phases: Take-off; Climb; Approach; and Taxilground idle. For purposes oftesting, the engine is to be operated for a specified time period in each operating mode and the gaseous emissions measured. See Ibid. Part III chapter 2 §§ 2.1.4.2, & 2.1.4.3 and chapter 3 §§ 3.1.5.2. & 3.1.5.3. 400 Ibid. Part III chapter 2 § 2.1.2 and chapter 3 § 3.1.2. 401 Ibid. 402 Dobbie, supra note 21 at 67; ICAO Secretariat, "ICAO Facing Complex and Evolving Challenges in the Environmental Field: Recent Developments in the Aircraft Noise and Emissions Fields Underline the Need for ICAO's Global Approach to Resolving Environmental Problems Associated with Air Transport" l. C.A. 0. Journal 54:7 (September 1999) 5, at 7 [ICAO Secretariat]. 403 See section 3.4.3 below.

75


turbofan engines.404 The national certificating authority may, however, exempt from

certification "specific engine types and derivative versions of such engines for which the

certificate of the first basic type was issued or other equivalent prescribed procedure was

carried out before 1 January 1965.,,405

The standards relating to smoke are expressed in the form of a regulatory smoke

number.406 They apply to turbo-jet and turbofan engines whose date of manufacture is on

or after 1 January 1983.407 In order to be certified, the smoke measured from such engines

during testing must not exceed the regulatory smoke number prescribed by the standards.

The gaseous emissions standards in respect of HC and CO are applicable to engines

whose rated output408 is greater than 26.7 ~09 and whose date of manufacture is on or

after 1 January 1986. These standards are also expressed in the form ofregulatory levels

and engines cannot be certified unless emissions measured from them during testing faU

below, or are at least equal to, these regulatory levels.41o

With respect to NOx emission limits, the standards prescribe three levels of stringency of

the regulatory levels, depending on the date of manufacture of the engine being tested, it's

rated output and pressure ratio. The first level of stringency, which is least stringent,

applies to engines of a type or model for which the date of manufacture of the first

individual production model was on or before 31 December 1995 or for which the date of

manufacture of the individual engine was on or before 31 December 1999.411

404 Annex 16 Volume II, supra note 17, Part III chapter 2 § 2.1.1 405 Ibid. 406 A 'smoke number' is defined as "a dimensionless term quantifying smoke emissions. 'Smoke' is, in turn, defmed as the carbonaceous material in exhaust emissions which obscure the transmission oflight." See ibid. Part 1 chapter 1. 407 Dobbie, supra note 21 at 66. The 'date ofmanufacture' is defined as "the date of issue of the document attesting that the individual aircraft or engine as appropriate conforms to the requirements of the type or the date of an analogous document." See ibid. 408 'Rated output' for engine emissions purposes is defmed as "the maximum power/thrust available for take-offunder normal operating conditions at ISA sea level static conditions without the use ofwater injection as approved by the certificating authority." See ibid. Part 1 chapter 1. 409 kN refers to Kilonewtons, the scientific unit in which thrust is expressed. See ibid. 410 Ibid. Part III chapter 2 § 2.3. 411 Ibid. § 2.3.2(a).

76


The next level of stringency applies to engines of a type or model for which the date of

manufacture of the first individual production model was after 31 December 1995 or for

which the date of manufacture of the individual engine was after 31 December 1999.412

The last level of stringency applies to engines of a type or model for which the date of

manufacture of the first individual production model was after 31 December 2003. The

standards for such engines vary according to their respective rated thrusts and pressure

ratios. Engines with a higher rated thrust and pressure ratio are subject to the most

stringent standards.413 An engine intended for use in international air navigation cannot be

certified unless the emissions of NOx measured and recorded during its testing are below

or at least equal to the regulatory level prescribed for the class to which it belongs.

3.4.2.2 Engines intendedfor Supersonic Propulsion

As regards engines intended for supersonic propulsion, the standards apply to all such

turbo-jet and turbofan engines whose date of manufacture is on or after 18 February

1982.414 For purposes of certification, emissions measured and recorded from such

engines during testing cannot exceed the regulatory levels for smoke, HC, CO and NOx

established by the standards.415 There is only one level of stringency for NOx emissions,

and certificating authorities are allowed to accept values determined after using

afterbuming416 during testing, using the reference LTO cycle, provided that the validity of

such data is adequately demonstrated.417

412 Ibid. § 2.3.2(b). This level of stringency was introduced by an amendment to Annex 16 Volume II, recommended by CAEP at its second meeting and adopted by the ICAO Council on 24 March 1993. It became effective on 26 July 1993 and applicable on Il November 1993. It represented a 20% increase in the stringency of the previous NOx emissions standard. See Table of Amendments to Annex 16, (ibid. at vii); Dobbie, supra note 21 at 71. 413 Annex 16 Volume II, ibid. § 2.3.2( c). This level of stringency was also introduced in an amendment to Annex 16 Volume II recommended by CAEP at its fourth meeting and adopted by the ICAO Council on 26 February 1999. It became effective on 19 July 1999 and applicable on 4 November 1999. This amendment further tightened the previous NOx stringency levels by about 16%. See Table of Amendments to Annex 16, (ibid. at viii); ICAO Secretariat, supra note 402 at 7. 414 Annex 16 Volume II, ibid. Part III chapter 3 § 3.1.1. 415 Ibid. §§ 3.2 & 3.3. 416 'Afterburning' is defined as "a mode of engine operation wherein a combustion system fed (in whole or in part) by vitiated air is used." See ibid. Part 1 chapter 1. 417 Ibid. Part III chapter 3 § 3.2.1 and accompanying note.

77


3.4.3 A Critique of the Regime Established by the Standards

As noted, the standards contained in Annex 16 Volume II only require the certification of

aircraft/aircraft engines with respect to intentional fuel venting, smoke and gaseous

emissions. As a me ans of environmental regulation, the certification scheme is based on

the underlying assumption that the quantity of pollutants from the global aviation sector

that can be dumped into the atmosphere without exceeding its assimilative capacity is

known or can be estimated, and that the regulatory levels prescribed by the standards bear

a close relationship to those values. Therefore, by certifying aircraft and engines that meet

the specified criteria, it follows logically that the emission of pollutants from aviation will

be controlled so as not to exceed the assimilative capacity of the atmosphere; this, in turn,

would prevent or reduce the occurrence of damage to the environment. The certification

scheme established by Annex 16 Volume II has, in this regard, been rightly characterized

as a preventive or pre-emptive measure; a measure "designed to have a catalytic effect on

the reduction of damaging effects of civil aviation upon the environment.,,418

In reality, however, this assumption has its own limitations. For the certification scheme

to achieve its desired results, other important variables such as the total number of aircraft

and engines engaged in international air navigation would have to be regulated as weIl.

Assuming that the assimilative capacity of the environment, (i.e. the quantity of pollutants

that can be safely absorbed by the environment without causing permanent damage) is

known or can be estimated with sorne level of accuracy (a fact which is denied anyway),

and that the regulatory levels prescribed by the standards are indeed based on those

quantities, certification of aircraft and engines cannot achieve optimal environmental

results since there are no limits on the number of aircraft or engines that may be certified

by each contracting state's certificating authority under the Annex.

Moreover, preventive or pre-emptive measures acting by themselves are not always

enough for purposes of controlling pollution. In spite of the operation of the certification

scheme since 1981, concerns are still being raised about the adverse environmental

effects of civil aviation. Thus, there is a need for other types of environmental regulatory

418 Mendes de Leon, supra note 394 at 132.

78


measures to complement the certification scheme established by the standards. Indeed, it

would not be out of place to consider for inclusion in Annex 16 Volume II, corrective

measures419 such as emissions-related levies (i.e. charges and taxes), market-based

measures (such as emissions trading),420 and voluntary measures,421 although admittedly,

quite a few legal obstacles would have to be overcome before such measures could be

brought into use.422 It is believed that an environmental regulatory regime that employs a

variety of control mechanisms has a better chance of achieving optimum results than one

that relies exclusively on preventive measures.

It was also noted above that the range of substances addressed for purposes of

certification under the standards contained in Annex 16 Volume II is restricted to smoke,

hydrocarbons (HC), carbon monoxide (CO) and oxides of nitrogen (NOx). The standards

do not address emissions like carbon dioxide (C02), sulphur oxides (SOx), water vapor

(H20) and other trace compounds such as speciated hydrocarbons, particulates and

aerosols, sometimes referred to as unregulated emissions.423 These unregulated emissions

equally cause serious adverse effects on the environment as the regulated emissions dO.424

C02 and H20 are greenhouse gases that are attracting increasing environmental attention

due to their effects on global warming. The exclusion of unregulated emissions from the

regulatory regime established by the Annex 16 Volume II has left the global aviation

community with only one option: "continuous commercial and operational pressure on

419 Corrective measures are those implemented when the damaging behavior has aIready taken place. They are based on the 'polluter pays' principle of environmentallaw. See ibid. at 133. 420 This is a system whereby the totallevel ofemissions is capped and allowances in the form oftradeable permits are bought and sold to meet emissions reduction objectives. See Ruwantissa I.R. Abeyratne, "Sorne Recent Developments in Aviation and Environmental Protection Regulation" (2001) 32 Envtl. Pol'y & L. 32 at 36 [Abeyratne, Recent Developments]. 421 These are mechanisms under which industry and governments agree to a target and/or a specific set of actions to reduce emissions. See ibid. 422 Indications are that CAEP has been considering these other measures and the modalities for their introduction into the existing regulatory regime for sorne time now. Sorne of the legal obstacles are that emissions-related taxes and charges must be consistent with articles 15 and 24 of the Chicago Convention as weIl as ICAO's own policies on charges and taxes. With respect to emissions trading, the issue relates to the scope of the trading system i.e. whether to have an open trading system across aIl sectors or a closed trading system within the aviation sector alone. See section 3.5 below. 423 Dobbie, supra note 21 at 67. 424 See chapter 1 above.

79


manufacturers and airlines to reduce fuel consumption",425 since the quantities produced

is directly proportional to the amount of fuel burned.

The Annex 16 Volume II standards are based on the landing and take-off (LTO) cycle

and as such, the conditions required to be simulated for testing aircraft engines prior to

certification are only valid up to an altitude of915 meters or 3,000 feet above sea leve1.426

Yet, large commercial aircraft typically cruise at altitudes between 35,000 and 45,000

feet. It has thus been argued that the certification standards do not coyer other flight

regimes such as climb and cruise, where the bulk of aviation's NOx emissions occur.427

A contrary argument that is often made on this issue is that, the measures taken to control

LTO emissions also control emissions during the climb and cruise phases of flight and

therefore there is no need for separate climb/cruise certification of aircraft engines.428

Although there appears to be sorne relationship between LTO emissions and climb/cruise

emissions for most engine types, the actuallevels of emissions produced during the climb

and cruise phases of flight are highly dependent on variable factors such as the aircraft on

which the engines are installed, the latitude, temperature, gross weight and speed.429

Thus, a definition of the necessary certification standards for climb/cruise emissions

would not be out of step, although a lot has to be done to determine which parameters

those standards are to be based on in order to avoid inconsistencies.

The issue of climb/cruise certification raises the broader question of whether aircraft or

aircraft engines should be certified. It will be recalled that whereas the standards relating

to vented fuel require certification of aircraft, the standards relating to smoke and gaseous

emissions require certification of aircraft engines.430 Certification of aircraft instead of

engines would appear to make more sense from an environmental perspective. However,

this would raise considerable difficulties as to the choice of parameters on the basis of

425 Dobbie, supra note 21 at 67. 426 Ibid. 427 Ibid. 428 Ibid. 429 Ibid. 430 See section 3.4.2 above.

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which the certification could be issued.431 AIso, a very wide variety of engine-airframe

permutations would have to be certified taking into account operational factors of all

kinds. In view of these difficulties, it is suggested that the present system of certifying

aircraft engines in relation to emissions be retained.

Finally, as noted above, ICAO does not have in place an audit programme for the

assessment of contracting states' implementation of the standards in Annex 16 Volume II.

It will be recalled that, ICAO is at present pursuing with great interest, two such audit

programmes relating to safety-related SARPs and security-related SARPS.432 Taken

together with the foregoing criticisms, the absence of an audit programme for

environment-related SARPs irresistibly points one to the conclusion that the efforts made

by ICAO to address aircraft engine emissions have only been taken to impress the rest of

the world that ICAO is indeed concemed about the environmental impacts of civil

aviation.

In any event, the adoption of the emissions certification standards contained in Annex 16

Volume II is a good first step, having regard to the level of scientific uncertainty about

the environmental impacts of aircraft engine emissions. It accords with the precautionary

principle,433 a principle that, in the opinion ofmany noted commentators, has attained the

status of customary intemationallaw.434 In essence, it reflects ICAO's bona fides in not

using the absence of full scientific knowledge on the atmospheric effects of aircraft

engine emissions as a reason for postponing preventive action. However, ICAO needs to

strive beyond the minimum emissions certification standards towards the attainment of

environmental sustainability. This could be achieved by ensuring, through a combination

of scientific research and regulatory mechanisms that, emissions from aviation do not

exceed the assimilative capacity ofthe global environment.

431 Dobbie, supra note 17 at 68. It would be possible, in tbis regard, to carry out emissions certification of aircraft on the basis of features such as productivity, payload, mass or range of the aircraft. 432 See section 3.3.5 above. 433 Sands, Principles, supra note 121 at 268. In essence, the precautionary principle provides that where there are threats of serious or irreversible damage, lack of full scientific certainty shaH not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 434 Ibid. at 278.

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3.5 Developments within JCAO since 1998

Since the 1981 adoption of the emissions certification scheme contained in Annex 16

Volume II, there has been sustained effort within ICAO aimed at improving and/or

enhancing the regulatory regime established thereunder. It will be recalled that, the

stringency of the certification standards relating to NOx emissions has already been

tightened on two occasions since 1981.435 Most ofthese efforts have taken place through

the medium of the Committee on Aviation Environmental Protection (CAEP).436

In accordance with its terms of reference and its work programme437 in the field of

aircraft engine emissions, the work of CAEP over the years has not been confined to

improvements in the stringency of the NOx certification standards alone. Discussions at

CAEP meetings have also focused on the use of market-based options, inc1uding

emissions trading, emissions-related charges and voluntary measures, to reduce or limit

emissions. Several recommendations have been made by CAEP to the ICAO Council in

that direction. This section of the study discusses the developments that have taken place

within CAEP since 1998 and the actions taken by the ICAO Council and the ICAO

Assembly in response to those developments.

3.5.1 Fourth Meeting of the Committee on Aviation Environmental Protection, 1998

(CAEP/4)

The fourth meeting of CAEP was held in Montreal from 6-8 April 1998. The agenda for

the meeting inc1uded, inter alia, items such as: a review of proposaIs relating to NOx

435 In 1993, the stringency of the NOx certification standards was raised by 20%. In 1999, it was further raised by another 16%. See section 3.4.2 above. See also supra notes 412 and 413. 436 The ICAO Council established the Committee on Aviation Environrnental Protection (CAEP) in 1981 as a successor to the Committee on Aircraft Noise and the Committee on Aircraft Engine Emissions. Its Terms of Reference are to undertake specific studies, as approved by the Council, related to control of aircraft noise and gaseous emissions from aircraft engines, taking into account:

a. the effectiveness and reliability of certification schemes from the viewpoint oftechnical feasibility, economic reasonableness and environrnental benefit to be achieved;

b. developments in other associated fields, e.g. land-use planning, noise abatement operating procedures, emission control through operational practices, etc.;

c. international and national programmes of research into control of aircraft noise and control of gaseous emissions from aircraft engines; and

d. the potential interdependence of measures taken to control noise and to control engine emissions. See ICAO website, online: < http://www.icao.intJcgilgotom.pl?/icao/enienv/caep.htrn> (date accessed: 13 December 2004). See also section 3.2 above. 437 For the CUITent version of the work programme ofCAEP, see ICAO website, ibid.

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emissions, inc1uding the amendment of Annex 16, Volume II; a review of a report

concerning emissions-related charges; and the future work of CAEP.438 Proceedings in

respect ofthese agenda items are discussed below in this study.

3.5.1.1 Proposais relating to NOx Emissions Certification Standards and the Amendment

of Annex 16 Volume II

With respect to proposaIs relating to NOx emissions certification standards, the meeting

considered reports from the various working groups of CAEP covering issues such as

economic considerations, CNS/ATM aspects, operational practices, and compliance costs

related to increased levels ofstringency of the NOx standards. CAEP/4 made a number of

recommendations to the ICAO Council on the subject, two of which are relevant for

present purposes. (a) That the attention of contracting states be drawn to the

environmental benefits that would accrue from the accelerated implementation of

CNS/ATM;439 and (b) that Annex 16 Volume II, Part III Chapter 2, paragraph 2.3.2 be

amended by adding a new sub-paragraph (c), the effect of which would be to increase the

stringency of the existing NOx certification standards by 16% in respect of engines

manufactured after 31 December 2003.440

At the eleventh meeting of its 154th Session held on 12th June 1998, the ICAO Council

took action on the foregoing recommendations.441 The proposed amendment to Annex 16

Volume II was subsequently reviewed by the Air Navigation Commission and referred to

contracting states for their comments. It has since become effective, as Annex 16 Volume

438 ICAO, Report of the Fourth Meeting of the Committee on Aviation Environmental Protection, Montreal, 6-8 April 1998, ICAO Doc. 9720, CAEP/4 at i-6 [CAEP/4 Report]. 439 Ibid. at 1-11, Recommendation 1/1. CNS/ATM is an acronym for Communication, Navigation and Surveillance/Air Traffic Management. It refers to the plan to move from current terrestrial navigation aids and analogue communications for aviation to increasing use of satellite solutions and digital systems. It is presentlyone of the biggest issues under discussion in ICAO; the eleventh Air Navigation Conference held in Montreal from 22 September to 3 October 2003 was entirely devoted to a discussion of CNS/ ATM. See IATA, One Sky ... Global ATM - The Way Forward, Air Transport Action Group Brochure at 2. See also ICAO, Global Air Navigation Planfor CNS/ATM Systems, ICAO Doc. 9750; ICAO, The Global ATM Operational Concept, AN-Conf/11-WP/4.1t is estimated that once fully implemented on a worldwide basis, the CNS/ATM systems concept will have the potential to further improve overall fuel efficiency in civil aviation by about 6-12%, representing an annua1 reduction of around 20 million tons of carbon dioxide (C02) emissions and a cost saving ofbetween USD 4.3 and 6 billion per year for the aviation industry and its customers. See Miller, supra note 16 at 278-79. 440 CAEP/4 Report, supra note 438 at 1-13, Recommendation 1/3. 441 Ibid. Supplement No. 1 at 1.

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II has been amended accordingly. The ICAO Council also approved the recommendation

relating to the environmental benefits of CNSI ATM. The Secretary General of ICAO was

accordingly instructed to bring this to the attention of states and relevant international

organizations, and also to indicate to them that the environmental benefit was one of the

benefits that would accrue from early implementation ofCNS/ATM.442

3.5.1.2 Emissions-related Levies

As regards emissions-related charges, CAEP/4 considered an extensive report presented

by the CAEP Focal Point on Charges (FPC), a working group established at a previous

meeting ofthe Committee.443 CAEP/4 acknowledged in its report that

[D]iscussions on aircraft engine emissions charges had taken place within ICAO since the early 1990's. Further to a recommendation of the 1991 Conference on Airport and Route Facility Management (CARFM) that ICAO study whether charges could be an effective means of reducing adverse environmental consequences of aircraft engine emissions, and a subsequent study by CAEP in 1995 on this subject, the 31st Session of the ICAO Assembly requested the Council to further study the subject ... CAEP/3 assigned this task to a Focal Point on Charges (FPC) the terms of reference of which called for it to 'determine the costs to the aviation transportation system and the environmental benefits, if emission-related charges or other associated local economic or regulatory measures are introduced. ,444

While noting that ICAO makes a c1ear distinction between charges and taxes, and

deciding to use the generic term levies instead, CAEP/4 considered two aspects of

emissions-related levies addressed in the FPC report, namely "specification of the

emission levies such as the substance (for example C02 and NOx) to which the levy

applies and the collection and application of the levy.,,445 With respect to the first aspect

of the issue, four options were considered, i.e. a fuellevy, a ticket levy, a route levy and

an airport levy. The effectiveness of each option in reducing emissions, depending on

whether the pollution problem involved was global or local, was also assessed.

442 Ibid. 443 Ibid. at 3-1. 444 Ibid. 445 Ibid.

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As regards the second aspect of the issue, namely, the collection and application of the

levy, the options considered were (i) a revenue neutral application; (ii) a general taxation

application; (iii) a levy application based on a preventive cost approach; and (iv) an

application involving the payment of damages suffered by third parties.446 The meeting

also discussed the role of ICAO in the event that emissions-related levies were to be

implemented. The importance of seeking coordination within ICAO in introducing

emission levies so as to avoid uncoordinated measures was stressed as well as the need to

ensure that aviation was not discriminated against vis-à-vis other industries or activities,

should emission levies be imposed.447 It was further noted that, "the objective of emission

levies was not to reduce emissions by reducing air traffic but to apportion the external

costs of emissions and encourage aircraft manufacturers to design engines with lower

emissions. ,,448

The implications of taxation of aviation fuel were also considered at the meeting. In

particular, it was noted that the imposition of taxes on aviation fuel would contravene

well-established and long-standing policies in the Chicago Convention and of ICAO,

which provide for the exemption of aviation fuel used in international air transport from

taxation. The opinion was thus expressed at the meeting that, these policies of ICAO, as

well as the underlying rationale, should be taken into account in any further development

of ICAO's consolidated policies on environmental protection and in any future work in

this area.449

The meeting identified the following issues as requiring attention: (a) the definition of

emissions levies as these might be neither charges related to c1early identifiable costs, nor

taxes raised solely for fiscal purposes; (b) the examination of the economic effects of

emission levies at different rates and by a different number of states; and (c) the

harmonization of action with regard to the design, introduction and application of levies

both at the local and global levels, since the harmful effects of emissions are caused by

446 Ibid. See also Abeyratne, Recent Developments, supra note 420 at 38. 447 Ibid. at 3-2. 448 Ibid. 449 Ibid. See also ICAO, ICAD's Policies on Taxation in the Field of International Air Transport, ICAO Doc. 8632.

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different substances at the global level as opposed to the local level, thus requiring

different types oflevies to optimize the beneficial effects from levy application.450

CAEP/4 made no recommendations on the subject of emissions-related levies but decided

instead that, since the FPC report did not contain a proposaI for implementation, a full

analysis of the economic, environmental and implementation implications would be

required before any such proposaIs for implementation could be made.451 In the interim, it

was decided that the FPC report be submitted to the ICAO Council.

3.5.1.3 Future WorkofCAEP

The 1998 meeting considered a paper detailing sorne proposaIs as to how ICAO should

follow up on the outcome of the Kyoto Conference on Climate Change.452 Two matters of

particular re1evance came up in the discussions: (1) the provision contained in article 2(2)

of the Kyoto Protocol calling on developed countries to pursue the limitation or reduction

of GHG emissions from international aviation working through ICAO;453 and (2) a formaI

decision urging the UNFCCC's Subsidiary Body on Scientific and Technological Advice

(SBSTA) to further e1aborate on the inclusion of international aviation emissions in the

overall GHG inventories of the parties.454

No formaI recommendations were made on this issue at CAEP/4. However, it was agreed

to revise proposaIs for the amendment of the ICAO Assembly's consolidated policies on

environmental protection and a proposed action plan on aircraft engine emissions. The

ICAO Council subsequently approved these decisions.455 It will be seen shortly that these

decisions taken at CAEP/4 sowed the seeds for the inclusion in the work programme of

CAEP of emissions trading as a market-based option for the reduction or limitation of

aviation emissions.

450 Ibid. at 3-3. 451 Ibid. at 3-2. 452 Ibid. at 4-1. 453 See section 2.3.4 above. 454 CAEP/4 Report, supra note 438 at 4-1. It will be recalled that the Kyoto Protocol off ers no clue as to whether GRG emissions from aviation are to be included in each party' s actualleve1s of annual emissions for purposes of compliance and enforcement. See section 2.3.4 above. 455 Ibid. Supplement No. 1 at 2.

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Indeed, after CAEP/4, the ICAO Assembly at its 32nd ordinary session, held from 22

September to 3 October 1998, adopted a resolution entitled Consolidated Statement of

Continuing ICAO Policies and Practices Related to Environmental Protection.456 In

Appendix F of the said resolution, the ICAO Assembly requested the ICAO Council,

through CAEP, to study policy options to limit or reduce GHG emissions from civil

aviation, taking into account the findings of the IPCC special report and the requirements

of the Kyoto Protoco1.457 Similarly, in Appendix H of the resolution, the ICAO Assembly

urged the Council to continue to pursue the question of emission-related levies with a

view to reaching a conclusion prior to the next ordinary session of the Assembly in

2001.458

3.5.2 Fifth Meeting of the Committee on Aviation Environmental Protection, 2001

(CAEP/5)

CAEP/5 was held in Montreal from 8-17 January 2001. Among the agenda items, and of

particular relevance for present purposes, were the following issues: review of proposaIs

relating to emissions, including the amendment of Annex16 Volume II; review ofmarket

based options to limit or reduce emissions; and the future work of CAEP. 459 Proceedings

under these agenda items are discussed below.

3.5.2.1 ProposaIs relating to Emissions including the Amendment of Annex 16 Volume II

With respect to this item, the meeting reviewed the reports of various working groups

established at CAEP/4 to pursue issues such as technical, scientific and operational

456 ICAO, Consolidated Statement ofContinuing ICA 0 Policies and Practices related to Environmental Protection, Assembly Resolution A32-8 in Resolutions Adopted at the 32nd Session of the Assembly, Provisional Edition, ICAO Website, online: http://www.icao.int/icao/enlassembl/a32/resolutions.pdf (date accessed: 14 December 2004). 457 Ibid. Appendix F ~ 4; see also Abeyratne, Recent Developments, supra note 420 at 38. 458 Ibid. Appendix H; see also Abeyratne, Recent Developments, ibid. 459 ICAO, Report of the Fifth Meeting of the Committee on Aviation Environmental Protection, Montreal, 8-17 January 2001, ICAO Doc. 9777, CAEP/5 at i-l [CAEP/5 Report]. A notable difference between the agenda items of CAEP/4 and CAEP/5 is that, whereas the former included a review of a report relating to ernissions-related levies, the latter included a review of market-based options for the reduction of ernissions, a broader subject encompassing the discussion of ernission-related levies, ernissions trading and voluntary measures.

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aspects of emissions.460 One of the issues raised by the reports of the working groups was

whether an ICAO standard, limiting the emission of carbon dioxide (C02), would be

desirable.461 The working group had concluded that it was not desirable to pursue the

development of a C02 standard due to a number of reasons: (i) that "market pressures had

already ensured that aircraft were very fuel efficient. Since CO2 production was directly

related to fuel consumption, these economic pressures were also serving to minimize C02

emissions,,;462 (ii) that it would be very difficult to define a representative point or

mission on which to base a CO2 certification scheme in view of the great diversity of

aircraft operations; and (iii) that there was the danger that "point certification would drive

manufacturers to meet compliance at the reference point at the expense of overall CO2

reduction. ,,463

On this issue, the meeting decided that as part of CAEP's revised work programme, the

Committee should consider the linkage between development of market-based options to

reduce C02 and other measures to control other emissions and aircraft noise, and further

analyze the use of other instruments and of market-based measures to address non-C02

GHG emissions.464 Another issue raised by the reports of the working groups was

whether deficiencies identified in relation to the L TO emissions certification regime, as

pertains under Annex 16 Volume II, should be examined. The working group was of the

opinion that future work should include a review of the Annex 16 Volume II LTO

cycle.465 The meeting approved this opinion and included it in the revised work

programme ofCAEP.466

460 CAEP/4 established Working Group 3 (WG/3) to pursue technical and scientific issues related to emissions, and working Group 4 (W G/4) to study the operational aspects of aircraft emissions reduction among others. 461 CAEP/5 Report, supra note 459 at 1-2. 462 Ibid. Continued reliance by ICAO on market and operational pressures as a means of ensuring that some emissions are controlled confirms the point made earlier in this study, name1y that the exclusion of unregulated emissions from the scope of applicability of Annex 16 Volume II leaves the global aviation community with only one option: continuous commercial and operational pressure on manufacturers and airlines to reduce fuel consumption. See section 3.4.3 above. 463 Ibid. 464 Ibid. at 4A-3. 465 Ibid. at 1-2. 466 Ibid. at 4A-1.

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Although CAEP/5 made no formaI recommendations for the amendment of Annex 16

Volume II, the meeting recommended the publication of information prepared by CAEP

on operational opportunities to minimize fuel use and reduce emissions in the form of an

ICAO Circular.467 The meeting also took notice of an Action Plan on Aircraft Engine

Emissions developed by the ICAO Secretariat since CAEP/4 and, recommended it to the

Council for approva1.468 The Action Plan469 consists of a schedule (or route-map) of the

various issues under discussion in CAEP, and time frames for their conclusion within the

short-medium term (i.e. in the next 5-10 years). The ICAO Council has since approved

the Action Plan.47o

The ICAO Council also authorized the publication of a Circular471 on operational

opportunities to minimize fuel use and reduce emissions.472 The Circular contains the best

industry practices for minimizing fuel consumption. It was published in February 2004,

and even before its publication, airlines aIl over the world were considering compliance

with the guidance material contained therein as a matter of great importance.473 In spite of

the environmental benefits associated with minimizing fuel consumption, it appears that

airlines are showing interest primarily because of the savings in fuel costs that they expect

to achieve.

3.5.2.2 Market-based Optionsfor the Reduction or Limitation of Emissions

The 2001 meeting also considered and endorsed the report of CAEP's working group 5

(WG/5), established at CAEP/4 to "identify and evaluate the potential role of market

based options, including emissions charges, fuel taxes, carbon offset and emission [sic]

467 Ibid. at 1-6. 468 Ibid. at 1-7 to 1-8. 469 The full text of the Action Plan on Aircraft Engine Emissions is incorporated into the CAEP/5 as the Afpendix to Agenda Item 1. See ibid. at lA-l to lA-6. 47 Ibid. Supplement No. 1 at 2. 471 ICAO, Operational Opportunities to Minimize Fuel Use and Reduce Emissions, ICAO Circular 303 (2004); see also ICAO Secretariat, "ICAO Circular Examines Ways to Minirnize Aircraft Fuel Use and Reduce Emissions" I.C.A.o. Journal 59:2 (March/ApriI2004) 23. 472 CAEP/5 Report, supra note 459, Supplement No. 1 at 2. . 473 See Léonie Dohhie & Martin Eran-Tasker, "Measures to Minirnize Fuel Consumption appear to he of Greatest Importance to Airlines" I. C.A. O. Journal 56:4 (May 2001) 24.

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trading regimes.,,474 In the WG/5 report, three broad types ofmarket-based measures were

considered: emissions-related levies (charges and taxes); emissions trading; and voluntary

measures.475

The legal and policy framework relating to these identified market-based measures was

also considered by WG/5. The report noted that, whereas emissions- related levies have,

over the years, been the subject of ICAO policies,476 which express a strong preference

for the use of charges over taxes, and bilateral air transport agreements, which exempt

taxes on fuel sold for international air transport and also regulate the imposition of

charges for the provision of airport and air navigation services, there are no provisions in

the Chicago Convention that would appear to prohibit the development and

implementation of programmes such as emissions trading, charges and voluntary

measures.477

As part of its work, WG/5 evaluated the three market-based options, using a common

evaluation framework based on environmental effectiveness, economic costs, economic

efficiency, competitiveness and equity, administrative and legal issues.478 The evaluation

framework allowed for a transparent assessment and comparison of the strengths and

weaknesses of the different market-based options.479 The key findings of the evaluation

were noted and brought to the attention ofthe meeting. They are outlined below.

With respect to emission-related levies, the evaluation centered on three options: (1) a

fuel or en-route emissions tax, with revenues going to the national treasury; (2) a revenue-

474 CAEP/5 Report, supra note 459 at 2-1. 475 Ibid. 476 See for example ICA 0 's Policies on Taxation in the Field of International Air Transport, supra note 449, which is a consolidated version ofprevious ICAO Council Resolutions on the subject; and, in particular, ICAO, Council Resolution on Environmental Charges and Taxes, Adopted at the 16th Meeting ofits 149th Session, 9thDecember 1996, ICAO website, online: http://www.icao.intlicao/enlenv/taxes.htm (date accessed: 15 December 2004). 477 CAEP/5 Report, supra note 459 at 2-1. 478 Ibid at 2-2. 479 Jane Hupe, "Experts Reformulating Strategy for Alleviating Aviation's Impact on the Environment" J.C.A.G. Journal 56:4 (May 2001) 5, at 7 [Hupe, Experts Reformulating Strategy].

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neutral aircraft efficiency charge; and (3) an en-route emissions charge, with revenues

retumed to the aviation sector.480 The findings ofWG/5 were that,

a fuel tax raises legal issues conceming air services agreements and IeAO policies, and, if not applied worldwide, could cause tinkering practices; an en-route emission charge would be consistent with IeAO policies, provided revenues were used to mitigate the environmental impact from emissions; and if not applied worldwide would raise equity and competitiveness issues; and a revenue-neutral charge would be consistent with IeAO policies but would require an acceptable method to be developed for defining aircraft efficiency, and could not be implemented in those are as which do not have en-route charges.481

As regards emissions trading, although IeAO only has jurisdiction over aviation, it was

found that an open trading regime (in which emission units could be openly traded across

all sectors) would be more efficient than a c10sed regime (under which trading would be

confined only to the aviation sector). It was also found that the distribution of emission

units through an auctioning system raises the issue as to what use the funds collected

therefrom may be pUt.482

Three design options for voluntary measures were considered by WG/5: (1) an industry

initiative, where a set of actions, andlor a target to be met, would be proposed; (2) a

negotiated agreement between industry and govemment to achieve a specified emission

target or to take a set of actions; and (3) a hybrid option under which one of the foregoing

options would be used in conjunction with another market-based measure.483 The

evaluation found that voluntary measures alone could not achieve an ambitious emission

reduction target and that they would have to be used in conjunction with other measures.

The WG/5 report noted that since voluntary measures allow industry to enhance its ability

to undertake activities related to capacity building, they should be viewed as transitional

measures, which participants could use to their advantage if market-based or other

measures were to be imposed later on.484

480 CAEP/5 Report, supra note 459 at 2-2. 481 Ibid. 482 Ibid. at 2-3. 483 Ibid. 484 Ibid.

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ln endorsing the WG/5 report, CAEP/5 arrived at the following conclusions:

(i) A closed emissions trading system does not show benefit results which justify further consideration

(ii) An open emissions trading system is a cost effective solution for CO2

emission reductions in the long term, but cannot be implemented until the Kyoto Protocol has entered into force and an emissions cap has been agreed. Further work is necessary to develop an emission trading system and to study the consequences for developing countries and ICAO should continue to play a leadership role, particularly in the development of proposaIs for caps, consistent with the responsibility given to ICAO in Article 2.2 ofthe Kyoto Proto col

(iii) Since an open emissions trading system has to be considered as a long term solution, the meeting considered shorter term solutions such as voluntary mechanisms and levies. In this respect the implementation of a voluntary mechanism could be a first stage to encourage near term actions, as a lead in to a future regime. Guidelines for such voluntary mechanisms should be developed. Moreover, with respect to levies, the meeting agreed that further studies should be carried out and further guidance developed. This work should be consistent with the Council resolution on Environmental Taxes and Charges of 9 December 1996 and take into account the effects on, and concerns of, developing countries.485

On the basis of these conclusions, CAEP/5 recommended that certain agreed elements

should be included in an ICAO Assembly Resolution addressing the use of market-based

options to limit or reduce emissions.486 However, the ICAO Council did not agree with

one of the proposed elements, which would have had the effect of changing the status of

the 1996 Council Resolution on Environmental Charges and Taxes.487 The proposed

elements have been included as Appendix 1 to the Consolidated Statement of ICAO

Policies and Practices related to Environmental Protection,488 an Assembly Resolution

adopted at the 33rd Session ofthe ICAO Assembly held in 2001.

485 Ibid. at 2-5 [emphasis added]. 486 Ibid. 487 Hupe, Experts Reformulating Strategy, supra note 479 at 7. 488 ICAO, Consolidated Statement ofContinuing ICA 0 Policies and Practices related to Environmental Protection, Assembly Resolution A33-7 Appendix 1 in Resolutions Adopted at the 33rd Session of the Assembly, Provisional Edition, ICAO website, online: http://www.icao.intlicao/en/assembJ/a33/resolutions/a 33.pdf(date accessed: 15 December 2004).

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In Resolution A33-7, the ICAO Assembly among other things: (1) encourages states to

take short-term action to reduce international aviation emissions through the use of

voluntary measures while urging the ICAO Council to facilitate the foregoing by

developing a template voluntary agreement;489 (2) endorses the validity of the 1996

Council Resolution on Environmental Charges and Taxes and urges states to follow the

guidance contained therein, and to refrain from inconsistent unilateral action;490 and (3)

approves the development of an open emissions trading system for international aviation

while requesting the ICAO Council to develop guidelines to address the legal basis for

aviation's participation in such a system, as well as key issues such as reporting,

monitoring and compliance.491

3.5.2.3 Future WorkofCAEP

The 2001 meeting also reviewed a revised work programme for CAEP and recommended

that the ICAO Council should approve it. In relation to the existing certification scheme

under Annex 16 Volume II, the proposed work revised work programme requires CAEP

to, inter alia, examine the effectiveness of the LTO certification regime and complete

"the development of alternate emissions methodologies that encompass all phases of

flight, taking into account the performance of the whole aircraft and its productivity, and

inc1uding relationships between cruise emissions and those in the LTO cyc1e.,,492 The

revised work programme was approved by the ICAO Council at the ninth meeting of its

162nd Session held on 9 March 2001.493

3.5.3 Sixth Meeting of the Committee on Aviation Environmental Protection, 2004

(CAEP/6)

CAEP/6 was held in Montreal from 2-12 February 2004. As usual, the agenda for the

meeting contained, inter alia, the following items: a review of proposaIs relating to

aircraft engine emissions, inc1uding the amendment of Annex 16 Volume II; a review of

489 Ibid. ~ 2(a). 490 Ibid. ~ 2(b). 491 Ibid. ~ 2( c). 492 CAEP/5 Report, supra note 459 at 4A-l to 4A-2. This change in work programme indicates an adnùssion on the part ofICAO that certifying engines on the basis of LTO based standards does not necessarily lead to a reduction of emissions during other phases offlight. See section 3.4.3 above. 493 Ibid. Supplement No. 1 at 3.

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market-based options to limit or reduce emissions and the future work of CAEP.494 The

proceedings held, conclusions and recommendations adopted, under these agenda items

are discussed in the following sections ofthis part ofthe study.

3.5.3.1 Proposais Relating to Aircraft Engine Emissions including the Amendment of

Annex 16 Volume II

The 2004 meeting noted, with approval, the work of CAEP's various working groups and

their respective sub-groups since CAEP/5, covering issues such as traffic and fleet

forecasts, emissions technical issues, emissions operational issues and liaison with other

United Nations bodies on emissions-related matters.495 Under emissions technical issues,

the meeting agreed with a proposaI by CAEP working group 3 (WG/3) that the LTO

cycle-based certification system used in Annex 16 Volume II be maintained in its present

form since there was, at the time, "no compelling reason to change the present regime.,,496

The meeting also agreed with another recommendation by WG/3 not to increase the

stringency of the standards relating to HC and CO emissions although there was evidence

that new combustor concepts, which significantly reduced NOx emissions, showed

considerably higher values for HC and CO.497

CAEP/6 considered and approved proposaIs for more stringent standards for all gaseous

emissions, especially NOx• Following lengthy debates about the new stringency levels

and implementation dates, the meeting agreed to a two-stage approach, with a revised

NOx standard for application in the nearer term and sorne type of statement on a further

increase in the stringency levels at a later date.498 The first stage involves a

recommendation to the ICAO Council that Annex 16 Volume II be amended by

tightening the stringency of the NOx certification standards 12% below the CUITent levels

established in 1999 in respect of engines for which the date of manufacture of the first

494 ICAO, Report of the Sixth Meeting of the Committee on Aviation Environmental Protection, Montreal, 2-12 February 2004, ICAO Doc. 9836, CAEP/6 at i-1 [CAEP/6 Report]. 495 Ibid. Agenda item 1, at 1-1 to 1-23. 496 Ibid. at 1-7. 497 Ibid. at 1-8. 498 Ibid. at 1-17; see also Jane Hupe, "W ork on Environmental Protection Reflects N eed for Balancing Many Factors" /. C.A. O. Journal 59:5 (August 2004) 4, at 5 [Hupe, Work on Environmental Protection].

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individual production model would be after 31 December 2007.499 During the second

stage, more stringent standards would be considered "in the light of a technology review

process to be completed by 2010, as weIl as several principles articulated by CAEP,

namely those of technical feasibility, economic reasonableness, environmental benefit

and interdependency.,,500

At the 4th meeting of its 172nd Session, the ICAO Council took action on the proposed

two-stage approach. The recommendation for the amendment of Annex 16 Volume II was

approved and, after a preliminary review of the proposaI by the Air Navigation

Commission, the Council agreed that it should be sent to contracting states and

international organizations for their comments.501

Under emissions operational issues, the meeting noted the work that has been carried out

on the environmental benefits of early implementation of CNS/ATM and accordingly

recommended that the environment-related information contained in the Global Air

Navigation Plan for CNS/ATM Systems (ICAO Doc. 9750) be updated as appropriate.502

The ICAO Council subsequently approved this recommendation and requested the

Secretary General to take the necessary action. 503

3.5.3.2 Market-based Options to Reduce or Limit Emissions

In response to the requests made by the ICAO Assembly in Appendix I to Assembly

Resolution A33_7,504 discussions during CAEP/6 on market-based options focused on

three areas of work: emissions-related levies, emissions trading and voluntary measures.

Prior to these discussions, however, sorne crosscutting issues were considered.

Representatives from a block of developing countries raised concerns about the use of

market-based measures on a global scale, arguing that the Kyoto protocol itself exempted

499 CAEP/6 Report ibid. at 1-18 to 1-19, Recommendation 1/3 and Appendix H, at IH-l. 500 Hupe, Work on Environmental Protection, supra note 498 at 5; CAEP/6 Report ibid. at 1-18; ICAO Secretariat, "ICAO Update: Experts Recommend Further Measures to Protect the Environment" l C.A. 0. Journal 59:2 (March/ApriI2004) 25. 501 CAEP/6 Report ibid. Supplement No. 1 at 1. 502 Ibid. Recommendation 1/4 at 1-20. 503 Ibid. Supplement No. 1 at 2. 504 See section 3.5.2.2 above.

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them from the obligation to reduce emissions. The meeting agreed with their request that

the economic situation of developing nations be taken into account when pursuing

market-based options. 505 The meeting also noted that several economic analyses had been

performed on all three types of market-based measures, but further work still needed to be

done in that direction. It was decided that this task should be considered for inclusion in

CAEP's future work programme.

On emissions-related charges, WG/5 presented a framework for guidance on the

implementation of CO2 emission charges as well as the outstanding issues and points of

disagreement that had emerged during the process of developing the framework.506

Taking the existing ICAO policies on emission-related charges and taxes into

consideration, the framework contains technical guidance on certain specified aspects of

the establishment of a C02 emissions-related charge scheme by states.507 These specified

aspects are: (i) defining the scope of the charge; (ii) establishing the cost basis for the

charge and using the revenues accruing therefrom; (iii) evaluating the impacts of the

proposed charge; (iv) administering the system; and (v) monitoring and reviewing the

charge.508 The outstanding issues and points of disagreement that emerged during the

development of the framework were identified as including the level of detail and

sufficiency of the guidance material,509 the geographical scope of the charges,510 the

responsibility for emissions,511 the implications for developing countries, the application

of the funds and the design of a revenue-neutral approach.

505 CAEP/6 Report, supra note 494 at 2-1. 506 Ibid. at 2-2. 507 The entire framework is reproduced in the CAEP/6 Report as Appendix B to Agenda Item 2. See ibid. at 2B-l to 2B-7. 508 Ibid. at 2-3. 509 There was debate as to whether the framework was sufficiently detailed for use by states in deve10ping emissions-related charges or whether it was just a list of issues to be addressed by states. See ibid. at 2-2. 510 On this point, the debate related to whether charges should be limited to emissions occurring over sovereign territories only or those occurring over the high seas and the global commons, and whether to address the latter through a multilateral or global agreement. See ibid. 511 Whether charges should be imposed only on air carriers or other parties, e.g. air traffic control in the event of congestion and delays resulting in increased emissions. See ibid.

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The meeting held extensive deliberations on the framework, but failed to achieve

consensus on recommending it for the use of states. S12 Apart from the numerous

outstanding issues, the failure to achieve consensus on the framework was influenced by

underlying considerations such as the need to protect the economic interests of

developing states, the present situation of the global airline industry in the light of the

downturn in traffic and the consequential reduction in C02 production and the need to

ensure that actions taken would be consistent with the commitments of states under the

UNFCCC process. SB One commentator has justifiably described emissions-related

charges as, by far, the most complex of the market-based measures for limiting or

reducing emissions from international aviation discussed at CAEP/6.514

The meeting recommended instead that the ICAO Council should take note of the

progress made in the study of this complex issue, consider the views presented and the

options put forward, and provide further instructions to CAEP as appropriate.S1S Although

the Council has subsequently considered this matter,S16 no clear way forward has yet to

emerge on the out standing issues, and it is questionable whether CAEP can resolve these

issues without further guidance from the ICAO Council. S17 The issue of emissions-related

levies is thus "a subject on which progress has proved difficult."S18

On emissions trading, the meeting noted that pursuant to the endorsement of the concept

of open emissions trading by the Assembly in Resolution A33-7, ICAO had hired a group

of consultants "to provide an analytical basis and help develop recommendations for a

comprehensive set of design specifications for an open trading system to coyer

greenhouse gas (GHG) emissions from international aviation."S19 At the time of the

meeting, the work of the consultants was not yet complete. However, the meeting was

512 Ibid. at 2-8. S13 Ibid. 514 Hupe, Work on Environmental Protection, supra note 498 at 6. 515 CAEP/6 Report, supra note 494, Recommendation 211at 2-8. 516 Ibid. Supplement No. 1 at 2; Hupe, Work on Environmental Protection, supra note 498 at 23. 517 CAEP/6 Report, ibid. at 2-8; Hupe, Work on Environmental Protection, ibid. at 23. 518 ICAO Secretariat, ICAO Update, supra note 500 at 25. 519 CAEP/6 Report, ibid. at 2-9; see also Abyd Karmali & Melinda Harris, "ICAO Exploring Development of a Trading Scheme for Emissions from Aviation" l. C.A. 0. Journal 59:5 (August 2004) Il [Karmali & Harris].

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infonned of the three alternative and/or complementary avenues for a trading scheme that

were being considered by the consultants.520 These three avenues are reproduced below.

Avenue 1: "Integrated trading" - an aviation emissions trading system in the context of the UNFCCC and the Kyoto Protocol (or a successor) agreement. Vnder this approach, international aviation emissions would be directly incorporated into the cap-and-trade schemes established by States under the Kyoto Protocol (or a successor) agreement, possibly with ICAO guidance; aviation emissions are allocated to Parties and international aviation is merged into domestic systems of control;

Avenue 2: "New instrument" - an aviation specifie system based on a new legal instrument under ICAO auspices. Vnder this approach, ICAO would authorize negotiations on the creation of a new legal entity (e.g. a standalone treaty) that establishes the rules for international aviation emissions trading. Interested States and observers would participate in these negotiations and would decide whether or not to become a Party to any eventual agreement; and

Avenue 3: "Voluntary system" - an entirely voluntary trading system assisted by ICAO. Vnder this approach ICAO would facilitate discussion among interested States and observers in the creation of a voluntary emissions trading regime. Specifie design issues (such as an absolute emissions reduction commitment) and the appropriate role for ICAO would be addressed during the course ofthese discussions.521

After assessing the advantages and disadvantages of each of these avenues, the meeting

conc1uded that since the development of Avenue 2 would be too complicated, time

consuming and would draw heavily on ICAO's resources,522 further work by ICAO on

emissions trading should focus on the concepts of a voluntary system (Avenue 3) and of

integrated trading systems (Avenue 1).523 The ICAO Council subsequently approved this

recommendation at the 4th meeting ofits 172nd Session, held on 26th May 2004.524

As regards voluntary measures, WG/5 presented a report on work carried out since

CAEP/5 to the meeting. The report inc1uded a draft Template Agreement - Memorandum

520 Ibid. 521 Ibid. at 2-9. 522 Ibid. at 2-10. 523 Ibid. at 2-11, Recommendation 2/2; see also Karmali & Harris, supra note 519 at 13. 524 Ibid. Supplement No. 1, at 2.

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of Understanding upon which states and other parties could model such agreements in

future. 525 The meeting highly approved the Template Agreement and recommended to the

ICAO Council that the document together with the associated guidance on voluntary

measures to limit or reduce CO2 emissions from aviation should be posted on the ICAO

website for wide dissemination to states and interested organizations.526 The ICAO

Council also subsequently approved this recommendation.527

3.5.3.3 Future Work ofCAEP

The 2004 meeting discussed CAEP's present working structure and methods, noting that,

the nature of the Committee's work had evolved over the years from simply setting

technical standards for aircraft noise and engine emissions to complex subjects dealing

with operational and economic issues that have both technical and policy implications.528

CAEP had consequently had to set up a complex structure with five working groups and

an economic support group. In order to "better coordinate work, eliminate possible

duplication of effort, better utilize limited resources, and facilitate a more 'systems'

approach to aviation environmental issues,,,529 the meeting decided to streamline the

working structure of CAEP. The new working structure comprises three working groups,

one each on: noise technical issues; emissions technical issues; and operational issues,

and an economic analysis support groUp.530 However, the meeting failed to reach a

decision on which of the above named groups should be entrusted with work on market

based options.531

One other outcome of the meeting under this agenda item was the recommendation of a

statement of environmental goals for ICAO, subsequently approved by the ICAO

Council. This was considered necessary because the goals would be the basis for work

525 The clraft Template Agreement - Memorandum ofUnderstanding is reproduced in the CAEP/6 Report as Appendix D to the Report on Agenda Item 2. See ibid. at 2D-l to 2D-17, ICAO website, online: http://www.icao.intlicao/enlenv/CAEP Template.pdf (date accessed: 17 December 2004). 526 CAEP/6 Report, ibid. at 2-12, Recommendation 2/3. 527 Ibid. Supplement No. 1, at 2. 528 Ibid. at 4-1. 529 Ibid. at 4-2. 530 Ibid. at 4-7. 531 Ibid. This decision was postponed to the fIfst Steering Group Meeting after CAEP/6, at which time it is expected that work on the future work programme would have been determined.

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programme priorities, allowing for a more systematic project management approach to

CAEP's work.532 After sorne discussion, it was agreed that the goals be expressed as

follows:

JCAO is conscious of its responsibility and that of its contracting states to achieve the maximum compatibility between the safe and orderly development of civil aviation and the quality of the environment. Jn carrying out its responsibilities JCAO will strive to:

(a) limit or reduce the number of people affected by significant aircraft nOIse;

(b) limit or reduce the impact of aviation emissions on local air quality; and

(c) limit or reduce the impact of aviation greenhouse gas emissions on the global climate.533

The meeting finally proposed a revised work programme for CAEP and recommended its

approval by the JCAO Counci1.534 With respect to aircraft engine emissions, CAEP's

future work, as specified in the revised work programme, would encompass: research on

the environmental impact of aircraft engine emissions; evaluation and enhancement of

emissions certification standards (in particular the use of the LTO cycle and the

characterization of particulate emissions); advancing the use of operational measures to

reduce or limit emissions; monitoring the implementation of any voluntary agreements;

supporting the development of voluntary emissions trading systems (Avenue 3) and

developing guidance for states on incorporating international civil aviation into their

emissions trading schemes (Avenue 1); and finally, undertaking further studies on the use

of C02 related emissions charges.535

At its 35th ordinary Session held from 25 September to 5 October 2004, the JCAO

Assembly took note of all the developments that have taken place within IeAO since

2001 and adopted a new Consolidated Statement of Continuing JCAO Policies and

532 Ibid. at 4-2. 533 Ibid. at 4-6 to 4-7. 534 The revised work programme for CAEP is reproduced as Appendix A to the Report on Agenda Item 4 in the CAEP/6 Report, ibid. 535 Ibid. at 4A-6 to 4A-l1.

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Practices related to Environmental Protection.536 The Resolution provides general policy

guidance to the ICAO Council, CAEP, contracting states and other international

organizations in the realm of environmental protection. Appendices H and 1 of the

Resolution are devoted specifically to the environmental impact of civil aviation on the

atmosphere and market based measures regarding aircraft engine emissions respectively.

3.6 Concluding Remarks

The purpose of this chapter has been to examine in sorne detail the regulatory regime for

the control of aircraft engine emissions established by ICAO in Annex 16 Volume II. It

has been seen from this exercise that the regime consists entirely of a certification scheme

in respect of a specific range of pollutants. Sorne major greenhouse gases, notably, C02

and H20 as weIl as other equally damaging substances are not included in the range of

regulated pollutants. It has also been seen that, over the years, ICAO has been making

considerable effort, mainly through the mechanism of CAEP, to enhance and/or diversify

the regulatory regime set up under Annex 16 Volume II. However, to date, most of the

amendments that have been made to Annex 16 Volume II as a result have been confined

to the level of stringency ofthe NOx emission certification standards contained therein.

Since 1998, there have been deliberations within CAEP on the use of market-based

options to reduce or limit emissions from international civil aviation. At best, these

discussions have only resulted in the publication of guidance material and not in the

promulgation oflaw. Although the certification regime in place under Annex 16 Volume

II is international in nature, contracting states are required to take action on them at the

nationallevel. Unlike the safety-related and security-related SARPs, however, there is no

ICAO audit programme for the assessment of national implementation of the

environment-related standards contained in Annex 16 Volume II. The next chapter of this

study assesses the effectiveness of this regime, inc1uding compliance and implementation

issues, through a limited survey of the domestic implementation of the standards by sorne

contracting states.

536 ICAO, Consolidated Statement ofContinuing [CAO Policies and Practices related to Environmental Protection, Assembly Resolution A35-5, ICAO website, online: http://www.icao.intlicao/en/assembl/a35/a35 res prev en.pdf(date accessed: 18 December 2004)

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CHAPTER FOUR

COMPLIANCE, IMPLEMENTATION AND EFFECTIVENESS OF ICAO's

INTERNATIONAL SARPs ADDRESSING AIRCRAFT ENGINE EMISSIONS


This study will not be complete without a review of the implementation and effectiveness

of, and compliance by states with, the regulatory regime established in Annex 16 Volume

II of the Chicago Convention. Several factors influence the effectiveness537 of an

international regime. They inc1ude: compliance;538 implementation;539 stringency and

inclusiveness of its provisions; the nature of the underlying problem; configurations of

state power; public concern; and other exogenous factors.54o In pursuing the goal of

achieving maximum compatibility between the safe and orderly development of civil

aviation and the quality of the human environment,541 ICAO requires contracting states,

under article 38 of the Chicago Convention, either to comply, in all respects, with the

standards in Annex 16 Volume II or to notify it of any differences. Hence, it appears that

ICAO prefers compliance by contracting states with Annex 16 Volume II to all the other

above-mentioned relevant factors that may influence the effectiveness of the regulatory

regime prescribed thereunder.

537 Effectiveness has been defined as the extent to which a regime causes or induces changes in the behavior of target groups that further the goals of the regime, or the degree to which the regime improves the state of the underlying problem and/or achieves its inherent policy objectives. See Victor et al., Introduction & Overview, infra note 538 at 6; Raustiala, infra note 538 at 392; Miles, Regime Effectiveness supra note 127 at4. 538 "Compliance generally refers to a state of conformity or identity between an actor's behavior and [a] specified mIe." See Kal Raustiala, "Compliance & Effectiveness in International Regulatory Cooperation" (2000) 32:3 Case W. Res. J. Int'l L. 387 at 391 [Raustiala]. Traditionally, compliance involves an assessment as to whether certain behavior conforms to the letter of an international commitment. Compliance is not an end in itselfbut, rather, one of the means to achieve effectiveness. See David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, "Introduction and Overview" in David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, eds., The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MA: Massachusetts Institute of Technology Press, 1998) lat 7 [Victor et al., Introduction & Overview]. 539 Implementation refers to those events and activities that occur after the issuing of authoritative public policy directives which include the effort to administer and the substantive impacts upon people and events. See ibid. at 4. It has been defined as the process of putting international commitments into practice: the passage of domestic legislation, promulgation of regulations, creation of institutions and enforcement of mIes. See Raustiala, supra note 538 at 392. 540 Victor et al., Introduction & Overview, supra note 538 at 8-15; Miles, Regime Effectiveness, supra note 127 at 6. 541 See ICAO Assembly Resolution A18-11, supra note 291. ICAO announced this environmental goal at the 1972 UN Conference on the Hurnan Environment and, subsequently, adopted the standards contained in Annex 16 Volume Il in an effort to achieve this goal.

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However, a state's compliance with an international regime may occur for reasons

entirely exogenous to the legal process. For instance, economic collapse in the former

Soviet Union produced perfect, but coincidental, compliance with many environmental

treaties.542 Compliance with an international commitment may also occur without any

effort or action by the govemment or regulated entity concerned.543 An international

commitment may be inherently "too weak, too strong, inefficient or completely ill

conceived",544 yet it may achieve perfect compliance by states. In view of the foregoing

possibilities, conc1uding that an international environmental regime is effective

exc1usively on the basis ofhigh levels of compliance by states and/or target groups would

indeed be misleading.

On the other hand, to attempt a comprehensive assessment of the effectiveness of an

international environmental regime on the basis of aIl the factors relevant to effectiveness

would exceed the scope of this study. Instead, this chapter focuses on compliance and

implementation by contracting states as critical determinants of regime effectiveness. In

carrying out this exercise, this chapter applies the causal chain of events graphically

illustrated in figure 2, where each object serves as a starting point for analyzing results in

the subsequent stage(s).

Object Output ~ Outcome ~ Impact

Time (Regime formation) Level 1: The international agreement is conc1uded. Level 2: Domestic measures are taken.

(Regime implementation) Measures are in effect and target groups adjust (Behavioral change)

Figure 2: Sequence of events in the regime assessment process. 545

Nature responds to changes in human behavior

For present purposes, level one of the output stage corresponds to the time at which the

standards contained in Annex 16 Volume II or any amendments thereto become

542 Raustiala, supra note 538 at 393. 543 Ibid. at 392 where he notes that if an international commitment matches CUITent practice in a given state, there is automatic compliance although that state has not taken any action to irnplement the commitment. 544 Victor et al., Introduction & Overview, supra note 538 at 7. 545 Miles, Regime Effectiveness supra note 127 at 7.

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applicable or enter into force. On the other hand, level two of the output stage

corresponds to a situation in which, after entry into force of the standards, the time

limited for notification of differences by contracting states has elapsed, and no such

differences have been notified (a situation which may signify compliance). Level two also

corresponds to situations in which the contracting states have, indeed, taken measures to

incorporate the standards into their domestic law (a sign of implementation). Renee, the

end product of the output stage is the formation and implementation of a new set of mIes

(i.e. a regime), both at the national and internationallevels. 546

Implementation of the regime is considered from two perspectives: (1) at the international

level, how IeAO and contracting states use "institutions and procedures to monitor and

review implementation and to handle problems of po or implementation" (otherwise

referred to as systems for implementation review (SIRS»;547 and (2) at the nationallevel,

how the international commitments contained in the standards are translated into action or

implemented by contracting states.548 The first product of regime implementation (the

outcome) is expected to take the form of behavioral changes in the target groups,549 (i.e.

contracting states, aircraft and engine manufacturers, and airlines are expected to reduce

their levels of emissions of regulated substances as a result of the implementation of the

certification scheme). The extent to which this outcome is achieved determines the

effectiveness of the regime established in Annex 16 Volume II. If the diagnosis of the

underlying problem was correct, it would then be expected that behavioral changes in the

target groups would, in turn, lead "to sorne change in the state of the biophysical

environment (impact) further down the road.,,550

A complete assessment of the effectiveness of the regime would necessarily involve the

collection and evaluation of empirical data from contracting states, an exercise beyond

546 Ibid. at 6-7. 547 Victor et al., Introduction & Overview, supra note 538 at 15-16. For the most part, the methods employed in this study for the assessment of the effectiveness of Annex 16 Volume II closely tracks the methods used in conducting the case studies on implementation and effectiveness of international environmental commitments in this publication. 548 Ibid. at 15,20-29. 549 Miles, Regime Effectiveness supra note 127 at 6. 550 Ibid.

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the scope of this study. Instead, as a manageable compromise, this chapter discusses (1)

the system(s) for implementation review (SIRs) of Annex 16 Volume II or their non

existence, and (2) the factors driving compliance with, and implementation of, the

international standards contained in Annex 16 Volume II in a selected number of

contracting states. Domestic implementation by the USA and in the EU is selected for

discussion because, quite apart from the fact that they represent the world's leading civil

aviation nations, there have been interesting developments in the field of implementation

of international environmental commitments relating to aviation in these states. Domestic

implementation in Ghana, on the other hand, is discussed in order to provide a developing

country perspective of the implementation of international environmental commitments.

4.2 Systems for Implementation Review of Annex 16 Volume II

Most international agreements require contracting states to report periodically on their

efforts to implement the commitments assumed thereunder.551 Sorne agreements

establish specific institutions and procedures for reviewing reports, assessing the

adequacy of existing commitments, and handIing cases of po or implementation, induding

the provision of funding to meet the costs of compliance. 552 Such rnechanisms, altogether

termed systems for implementation review (SIRs), may be built initially into the

agreement or they may be constructed later. They perform a number of important

functions553 that further international cooperation between states and promote compliance

and effectiveness in international agreements. 554 Regarding the effectiveness of

international regimes, the existence of SIRs "improves the effectiveness of an agreement

by making parties more accountable for the implementation of their commitments, by

551 David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, "Systems for Implementation Review" in David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, eds., The Implementation and Effectiveness of International Environmental Commitments (Cambridge, MA: Massachusetts Institute of Technology Press, 1998) 47 [Victor et al., SIRs]. 552 Some examples of SIRs are the LRTAP Convention's Monitoring and Evaluation Protocol (EMEP) and the Montreal Protocol's annual data reporting procedure and the Global Environment Facility (GEF), which grovides financial and technical assistance to developing states to meet the costs of compliance.

53 For a comprehensive account of the functions performed by SIRs in international cooperative regimes, see Raustiala, supra note 538 at 416. 554 Ibid. at416-17.

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helping to direct assistance that facilitates implementation, . . . and by providing

information and assessments that make it easier to adjust agreements over time.,,555

Although the Chicago Convention does not contain any explicit provisions relating to the

review of the implementation of SARPs by contracting states, article 38 may be construed

as a built-in SIR. As already noted, article 38 requires states that find it impracticable to

comply in all respects with international standards, or to bring their national practices and

regulations into full accord with any international standard after amendment of the latter,

and states that deem it necessary to adopt regulations or practices differing in any

particular respect from those established by an international standard, to notify ICAO of

differences.556 Thus, article 38 provides an avenue for ICAO to receive useful feedback

from states that do not intend to implement the international standards contained in the

Annexes to the Chicago Convention. However, it should be noted that, since article 38

only requires notification of differences in the event that a contracting state is not

complying with, or implementing, international standards, it does not provide a

mechanism for ICAO to review the domestic implementation of international standards

by complying states. Accordingly, article 38 may be characterized as a system for non

implementation review or a compliance monitoring system instead of a SIR.

Aside from article 38 of the Chicago Convention, ICAO has, since 1999, pursued the

issue of national implementation of international standards through the establishment of

two ingenious and independent univers al audit programmes. In both programmes, ICAO

sends audit teams, comprising trained and certified personnel, on missions to contracting

states to evaluate their domestic implementation of specified international standards. The

missions produce formaI reports of their findings to ICAO, which, in tum, uses them for

safety and security related purposes only.

In 1999, following widespread reports of the lack of implementation of SARPs by

contracting states, ICAO established the first such programme: the Univers al Safety

555 Victor et al., Introduction & Overview, supra note 538 at 16. 556 The implications flowing from article 38 have already been discussed in detail in section 3.3.4 above.

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Oversight Audit Program (USOAP). Under the USOAP, ICAO has since been conducting

in depth assessments of contracting states' domestic implementation of the safety-related

standards contained in Annexes 1, 6, 8, Il, 13 and 14.557 As of 31 October 2003, ICAO

had conducted safety oversight audits in 181 states, and audit follow-ups in 114 of its 188

contracting states.558 An offshoot of the USOAP is the recent establishment of an

International Financial Facility for Aviation Safety (IFF AS), a mechanism to provide

financial support for the implementation of the necessary measures mainly identified by

the USOAP (i.e. safety-related projects for which contracting states cannot otherwise

provide or obtain the necessary financial resources).559

Following the successful implementation of the USOAP, and prompted by the terrorist

events of September Il 2001, ICAO established a univers al security audit programme

(USAP), along the lines of the USOAP, to assess contracting states' implementation of

the security-related international standards, particularly those contained in Annex 17 of

the Chicago Convention.560 The USAP "provides for the conduct of univers al, mandatory

and regular audits of the aviation security systems,,561 of all contracting states. !ts

objective is to promote global aviation security by identifying deficiencies in each state's

aviation security system and also by providing recommendations for their mitigation or

resolution. The first security audit under USAP was conducted in November 2002 and it

is expected that by the end of 2007, all188 contracting states will have been audited.562

As their names suggest, the foregoing ICAO univers al audit programmes are confined to

safety-related and security-related standards only. As such, they do not coyer the

environment-related standards contained in Annex 16 Volume II. In other words, apart

557 See section 3.3.5 above. 558 ICAO, An Update of the ICAO Universal Safety Oversight Programme, Presentation made at the ICAO Technical Co-operation Bureau (TCB) Seminar held in Singapore, 12-14 January 2004, ICAO website, online: http://www. icao.int/icao/ en/tcb/TCB-Singapore-2004 ? AttachementslPresentations/HTMLlI CA 0 USOAP & Follow-up Programme files/slide (date accessed: 1 January 2005). 559 See International Financial Facility for Aviation Safety, ICAO website, online: http://www.icao.intlcgilgotomatb.pl?/icao/en/atb/iffas/ (date accessed: January 1 2005). 560 See section 3.3.5 above. 561 See Universal Security Audit Programme, ICAO website, online: http://www.icao.intlicao/enJatb/asalindex.html (date accessed: 1 January 2005) [emphasis added]. 562 Ibid.

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from article 38 of the Chicago Convention discussed above (which is limited because it is

geared only towards compliance monitoring), there are no mechanisms in place by which

ICAO can assess the implementation of the standards contained in Annex 16 Volume II

by contracting states. This situation leaves much to be desired as the lack of a system for

implementation review in an international regime seriously detracts from the

effectiveness of that regime. ICAO appears to be mainly preoccupied with increasing the

stringency of the standards contained in Annex 16 Volume II but cares not whether they

are implemented by contracting states or not.

4.3 National Implementation of Standards Contained in Annex 16 Volume II

4.3.1 The Relationship between International Standards and Municipal Law

As already noted, the international standards contained in the Annexes to the Chicago

Convention are international regulations, although they do not have the same status and

legal effect as the provisions of the Chicago Convention. Since, unlike traditional

international agreements, the Annexes to the Chicago Convention do not require

ratification by contracting states, the question arises regarding the manner in which they

become part of, and are implemented as, domestic law in contracting states. Incorporation

of the international standards into domestic law is essential for their implementation, but

not for compliance. In other words, whereas it is virtually impossible to fully implement

international commitments until they have been assimilated into domestic law,

compliance by target groups may occur without, and as such, does not necessarily depend

on, incorporation.

Essentially, there are two major doctrines that generally explain the relationship between

internationallaw and municipallaw, namely the theories of dualism and monism.563 The

theory of dualism insists that international law and municipal law are two separate and

distinct systems of law, and one cannot purport to have an effect on or overrule the

other.564 Proponents of this theory emphasize the supremacy of the state and argue that

"[ w ]here municipal legislation permits the exercise of international law mIes, this is on

563 See generally Malcolm N. Shaw, International Law, 4th ed. (Cambridge, U.K.: Cambridge University Press, 1997) at 100-102 [Shaw]. 564 Ibid. at 100.

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sufferance as it were and is an example of the supreme authority of the state within its

own domestic jurisdiction, rather than of any influence maintained by international law

within the internaI sphere.,,565 On the other hand, proponents of the theory of monism in

its various forms disagree with the strict division posited by the dualists and, argue

instead that both municipallaw and internationallaw form part of a unitary system of law

in which the latter is superior to, or more basic than, the former. 566

The implications of these theories for states are obvious. Astate that subscribes to the

theory of dualism would have to take a positive step to incorporate an international

agreement, to which it is a party, into its domestic law. This is because according to that

theory, internationallaw applies domestically only on the basis of sufferance. Conversely,

astate that agrees with the theory of monism would consider the incorporation of

international agreements into its domestic law as an automatic process, since international

law is superior to municipal law. Although in the domestic implementation of the

standards contained in the Annexes to the Chicago Convention, ICAO encourages

contracting states "to use ICAO language to the greatest extent possible, to avoid losing

the benefits of the international standardization of practices", 567 there is no indication as

to ICAO's preferred theory of incorporation.

Admittedly, the same result may be achieved regardless of which theory of incorporation

a contracting state subscribes. However, for purposes of enhancing effectiveness and

certainty of compliance, a system under which contracting states are required to take a

positive step (for example, the enactment of specific domestic legislation) to incorporate

the standards contained in Annexes, would be preferable to one under which no action is

required. The basis for this preference becomes even c1earer if one agrees with Dr.

565 Ibid. See also Buergenthal, supra note 285 at 106-07. In support ofthis theory, Dr. Buergenthal alludes to a 1957 decision of the Supreme Court of Belgium that without special implementing legislation, the provisions of an Annex could not be relied upon in Belgian Courts; Tim Unmack, Civil Aviation: Standards and Liabilities (London: LLP Professional, 1999) at 25 [Unmack]. 566 Ibid. at 101; see also Buergenthal, ibid. where, in support ofthis theory, he refers to a 1957 decision of the Senegalese (then French West African) Court of Appeals to the effect that Annex 9 (Facilitation) was directly applicable law that could be invoked by individuals in French territorial courts; Unmack, ibid. at 25. 567 Green, supra note 194 at 531.

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Thomas Buergenthal that the failure of contracting states to notify ICAO of any

differences (i.e. silence or failure to take any positive action regarding Annexes that have

entered into force) do es not amount to domestic compliance with, and/or implementation

of, the provisions of the Annex in question.568

4.3.2 Domestie Implementation of Annex 16 Volume II in the USA

The regulation of aircraft engine emissions in the USA is a matter that is handled at the

federal level. Two institutions have been traditionally involved in this endeavor, each

taking charge of a different aspect of the matter. The authority to promulgate aircraft

emission standards in the USA (rulemaking) is entrusted to the Administrator of the

Environmental Protection Agency (EPA) under the Clean Air Act of 1970, as amended.569

The EPA's rulemaking power is subject only to presidential veto following advice from

the Secretary of Transportation that any standard promulgated thereunder would pose a

hazard to aircraft safety.570 On the other hand, the enforcement of any such standards

(enforcement) falls within the exclusive jurisdiction of the US Secretary of

Transportation,571 a dut Y that has over the years been delegated to, and performed by, the

US Federal Aviation Administration (FAA). States and other political sub-divisions in the

USA are prohibited from adopting or attempting to enforce any aircraft emission

standards unless such standards are identical to those promulgated by the EP A. 572

The power to make rules establishing emission standards for aircraft was conferred on the

Administrator of the EPA in 1970, more than a decade before the adoption and coming

into effect of Annex 16 Volume II by ICAO. Thus, the EPA was already in the business

of making aircraft emission standards before the ICAO emissions certification standards

became part of the international commitments that ICAO member states were urged to

implement domestically.573 Indeed, in exercising this rulemaking power

568 Buergenthal, supra note 285 at 99; see also section 3.3.4 above. 569 42 U.S.C. Chapter 85 § 7571 (2002). See also Green, ibid. at 534. 570 Ibid. § 7571(c); Green, ibid. at 534. 571 Ibid. § 7572. 572 Ibid. § 7573. 573 Green, supra note 194 at 535.

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[i]n 1973, [the] EPA promulgated emission regulations for vented fuel, smoke, and exhaust (HC, NOx, and CO) emissions. Three tiers of standards were promulgated: (1) retro fit standards for in-use engines; (2) standards for newly manufactured engines (those engines built after the effective date of the regulations); and (3) standards for newly certified engines (those engines designed and certified after the effective date of the regulations).574

Further, the EPA promulgated emission standards for supersonic aircraft engines in 1976

and rescinded all gaseous emission requirements for piston engines and auxiliary power

units in 1980.575 Aircraft engines were required to meet these emission standards before

they could be certified as being airworthy.

After the adoption of the international standards contained in Annex 16 Volume II in

1981, the EPA made comprehensive changes to the existing US aircraft emission

standards.576 Notwithstanding the fact that changes were being made, the EPA decided

not to fully adopt the ICAO standards contained in Annex 16 Volume II. Rather, the EP A

insisted that its domestic standards were compatible with the requirements of Annex 16

Volume II.577 In 1997, the EP A determined that aircraft represented significant sources of

NOx and CO emissions in some designated air quality control regions with chronic

violations of the established national ambient air quality standards.578 As a solution to this

problem, the "EP A issued a final mIe adopting the 1981 ICAO standards for the

regulation of CO and NOx emissions, the ICAO's 1993 amendments to the NOx

standards, and several other technical amendments necessary to conform EP A standards

more c10sely to ICAO requirements.,,579 Parts of Annex 16 Volume II were directly

incorporated into the EPA regulations58o by specific reference. On 10 August 1999, the

574 Ibid. 575 Ibid. 576 These changes eomprised the exclusion of general aviation aireraft, aireraft engines with a rated thrust less than 26.7 kN as weIl as newly eertified aireraft gas turbine engines in aIl rated thrust categories from the CO, HC and NOx emission standards. See ibid. at 536, no. 174 & 175. 577 Ibid. 578 Ibid. at 537. 579 Ibid. 580 AIl the regulations on aireraft emissions adopted over the years by the EP A have been reeorded and periodically revised in 40 C.F.R. Part 87. The latest revision ean be found at 40 C.F.R. Part 87 (2004) and it addresses subjeets sueh as engine fuel venting emissions, exhaust emission standards for new and in-use aireraft engines and test procedures for exhaust and smoke emissions. The test procedures preseribed in the

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USA notified JCAO that no differences exist between its national practices and

regulations and those established by Annex 16 Volume II.581

For purposes of enforcement, the Secretary of Transportation is required to prescribe

regulations, including mandatory provisions making the EP A standards applicable in the

issuance, amendment, modification, suspension, or revocation of any certificate

authorized by the Federal Aviation Act or the Department of Transportation ACt.582 This

authority has been delegated to the Administrator of the F AA, 583 who has, subsequently,

issued F ederal Aviation Regulations (FARs) incorporating the EP A emission standards

into the airworthiness certification process for aircraft, aircraft engines and other related

products. The airworthiness certification process begins with the issuance of a type

certificate584 by the F AA. Most importantly, one of the pre-requisite conditions for the

issuance of a type certificate for aircraft and aircraft engines is a demonstration by the

applicant, using test reports, type designs and computations, to show that the product

complies with, among other things, the EP A fuel venting and exhaust emission

standards.585

The other two steps in the airworthiness certification process involve further tests and

inspections to determine whether duplicate products conform to the type certificate.586

Clearly, the enforcement procedure ensures that each aircraft engine manufactured in the

USA conforms to the emission standards promulgated by the EP A. However, it has been

observed by one commentator that, in 1997 when the EP A issued its final rule adopting

and/or incorporating the Annex 16 Volume II standards into domestic US law, most of

regulations are those provided in Appendices 3,5 and 6 of Annex 16 Volume II, which have been incorporated into the regulations by reference. See 40 C.F.R. §§ 87.64 & 87.71 (2004). 581 See Annex 16 Volume II, supra note 17, Supplement dated March 2003 at iii. 582 42 U.S.C. Chapter 85 § 7572(a). 583 See 49 C.F.R. § 1.47(g) (2004). 584 Type certification is the frrst step in the process for obtaining an airworthiness certificate for an aircraft or aircraft engine (a product). Without an airworthiness certificate, a product carmot be introduced into commercial service. The F AA issues a type certificate for a product if it is properly designed and manufactured, performs properly, and meets the regulations and minimum standards prescribed, including the EPA emission standards. See Green, supra note 194 at 538-39. 585 See 14 C.F.R. § 21.21(b) (2004). 586 These two steps are the issuance of the production certificate to the manufacturer and the airworthiness certificate to the registered owner of the product. See 14 C.F.R. § 21 generally.

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the affected aircraft engines were already meeting the international CO and NOx emission

standards and, as such, only a few engine models needed to accomplish minor reductions

to satisfy the regulation.587 This unprecedented level of domestic compliance with the

Annex 16 standards was c1early not the result of domestic implementation of the said

international standards in the USA. Rather, compliance was only coincidental because,

among other things, airlines were reducing fuel consumption (and the associated

emissions) in an effort to reduce their direct operating costs. Indeed, "[s]tatistical analysis

shows that energy use by aircraft per unit of passenger travel [in the USA] dramatically

improved in the 1970s and 1980s.,,588

Furthermore, aircraft and aircraft engines are international commodities and, as such, are

often designed and manufactured to meet international standards (inc1uding the

international emission standards set by ICAO in Annex 16 Volume II).589 Thus, although

there have been behavioral changes (an outcome) in the USA, those changes are not

entirely the result of the domestic implementation (i.e. rulemaking by EP A and

enforcement by F AA) of the international standards prescribed in Annex 16 Volume II.

Rather, the factors driving these behavioral changes are, most notably, the desire on the

part of operators to reduce their direct operating costs through the optimization of fuel use

and the associated reduction in emissions, and the fact that airframe and engine

manufacturers are better placed in the international market if their products comply with

internationally accepted ICAO standards.

4.3.3 Domestie Implementation of Annex 16 Volume II in EU MemberStates

On 15 July 2002, the European Parliament and the Council of the European Union (EU)

adopted a regulation on common rules in the field of civil aviation and also on the

establishment of a European Aviation Safety Agency (EASA).59o The objectives of the

regulation were, inter alia, to establish and maintain a high unifonn level of civil aviation

587 Green, supra note 194 at 537. 588 Ibid. at 538. 589 Ibid. at 537. 590 EC, European Parliament and Council Regulation 1592/02 of 15 July 2002 on Common Rules in the Field of Civil Aviation and establishing a European Aviation Safety Agency, [2002] 0.1. L. 240/1 [EC Regulation 1592/02].

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safety in Europe, to ensure a high unifonn level of environmental protection, and to

promote cost-efficiency in the regulatory and certification processes so as to avoid

duplication at national and European level. 591

To achieve these objectives, the regulation: (1) establishes an independent European

Aviation Safety Agency;592 (2) requires that aeronautical products, parts and appliances

shaH be subj ect to airworthiness and environmental certification by the EASA, acting by

itself or through national aviation authorities;593 (3) requires also that personnel and

organizations involved in the design, production and maintenance of aeronautical

products, parts and appliances, as weH as personnel and organizations involved in the

operation of aircraft, shaH be subject to certification and/or licensing by EASA;594 (4)

authorizes the European Commission (EC) to adopt rules for the implementation of the

foregoing; 595 and (5) mandates the EASA to conduct standardization inspections in order

to monitor the application by national aviation authorities of the regulation and its

implementing rules.596

For purposes of environmental certification of products,597 parts and appliances, article

6(1) of the regulation provides:

Products, parts and appliances shaH comply with the environmental protection requirements contained in Annex 16 to the Chicago Convention as issued in November 1999, except for its Appendices.598

591 Ibid. art. 2, at 3. 592 Ibid. art. 12, at 7. 593 Ibid. art. 15, at 8. EASA is required under article 15 of the regulation to establish and notify the requirements and specifications for airworthirless, environmental and type-certification, and to conduct inspections and issue the said certificates acting by itself or through national aviation authorities of member states or qualified entities. 594 Ibid. arts. 1(1) & 7. 595 Ibid. arts. 5(4) & 6(3). 596 Ibid. art. 16, at 9. 597 'Product' is defined as an aircraft, engirle or propeller. See Ibid. art. 3(c), at 4. 598 Ibid. art. 6(1), at 6. Article 54(3) of the regulation provides a procedure for adaptirlg article 6 irl the event that Annex 16 Volume II is subsequentlyamended. Usirlg this procedure, article 6 has already been adapted once to irlcorporate amendments made to Annex 16 Volume 1 in March 2002. See EC, Commission Regulation 1701/03 of24 September 2003 adapting Article 6 of Regulation 1592/02 of the European Parliament and of the Council on Common Rules in the Field of Civil Aviation and establishing a European Aviation Safety Agency, [2003] O.J. L. 243/5 [EC Regulation 1701103]. This adaptation of article 6, however, did not affect Annex 16 Volume II sirlce there had been no amendments between 1999 and the date of the adaptation.

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Article 6(3) of the regulation further provides that the BC shaH prescribe mIes for the

implementation of article 6(1), using as necessary the content of the Appendices to Annex

16 Volume II, in accordance with the procedure laid down in article 54(3).599 On 24

September 2003, the BC exercised this power and adopted a regulation laying down the

implementing mIes for airworthiness and environmental certification of aircraft and

related products, parts and appliances as well as for the certification of design and

production organizations.600 The implementing mIes lay down common technical

requirements and administrative procedures for airworthiness and environmental

certification of products, parts and appliances in an annex labeled as Part 21.601

Before a type certificate for any product is issued under Part 21, the applicant must

establish (in fulfillment of one of the pre-requisite conditions) that the product in question

meets the environmental protection requirements specified in the implementing mles.602

As part of the said environmental protection requirements, section 21A.18(b) of the

implementing mIes provides that

[t]he applicable emission requirements for the issue of a type-certificate for an aircraft and engine are prescribed in Annex 16 to the Chicago Convention:

1. for prevention of intentional fuel venting, in Volume II, Part II, Chapter 2' ,

2. for emissions of turbo-jet and turbofan engines intended for propulsion only at subsonic speeds, in Volume II, Part III, Chapter 2; and

3. for emissions of turbo-jet and turbofan engines intended for propulsion onlyat supersonic speeds, in Volume II, Part III, Chapter 3.603

The regulation and the implementing mIes became effective on 28 September 2003, and

since that date, the BASA has been responsible for the certification tasks incumbent upon

599 EC Regulation 1592/02, ibid. art. 6(3), at 6. 600 EC, Commission Regulation 1702/03 of 24 September 2003 laying down Implementing Rules for the Airworthiness and Environmental Certification of Aircraft and Related Products, Parts and Appliances, as well asfor the Certification of Design and Production Organisations, [2003] O.J. L. 243/6 [EC Regulation 1702/03]. 601 Ibid. art. 1, at 7. 602 Ibid. Part 21 § 21A.21(c)(I). 603 Ibid. § 21A.18(b) [emphasis added].

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it under article 15 of the regulation.604 A certification directorate has been established

within the Agency and entrusted with the execution of the said certification tasks.

However, since the certification directorate is still in the process of building up its

resources, it relies chiefly on the national aviation authorities of member states, which

have historically filled this role, to perform the directorate's duties on the basis of

contractual arrangements. 60S Eventually, it is envisaged that the directorate will assume

full responsibility for airworthiness and environmental certification of aeronautical

products in Europe.

Although the domestic implementation of Annex 16 Volume II in EU member states

accords with the undertaking by contracting states of the Chicago Convention to

collaborate in securing the highest practicable degree of uniformity in regulations,

standards, procedures and organization in relation to civil aviation,606 it also raises issues

regarding the rights of the individual sovereign member states under the Chicago

Convention. Since the regulation and its implementing rules are pieces of EU legislation,

aIl EU member states are bound to give effect to them. Taking into consideration the fact

that Annex 16 Volume II has been fully incorporated into European law, would this then

mean that individual EU states are denied the right to notify ICAO of any differences that

might exist between their national practices and regulations and those established by the

standards as they are entitled to under article 38 of the Chicago Convention? Also, what

happens to EU member states like the United Kingdom which, prior to the coming into

force of Regulation 1592/02, had already notified ICAO of differences?607 These and

other pertinent questions remain unanswered and the issue becomes even more

confounded by the fact that the EU as an entity is not a party to the Chicago Convention.

Moreover, as subjective as this may sound, the wholehearted incorporation of Annex 16

Volume II into European law and the establishment of the EASA to execute certification

functions thereunder appears more likely to be driven by the desire on the part of the EC,

604 EC Regulation 1592/02, supra note 590 article 56 at 16. 60S See Certification, online: European Aviation Safety Agency website <http://www.easa.ell.intJhome/cert2en.html> (date accessed 6January 2005). 606 Chicago Convention, supra note 18 article 37. 607 See Annex 16 Volume II, supra note 17 supplement dated March 2003 at iii & v.

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as it were, to gain more grounds in the ongoing power struggle between the EC and EU

member states in the area of aviation policy and regulation.60s For now, one can only wait

to see how this power struggle eventually plays out and what then happens to

environmental protection thereafter. In the meantime one can expect uniform

implementation of Annex 16 Volume II in Europe.

4.3.4 Domestie Implementation of Annex 16 Volume II in Ghana

In 1986, the Provisional National Defence Council (then the ruling military government

of Ghana) promulgated the Ghana Civil Aviation Authority Law.609 Under this

legislation, the Department of Civil Aviation of the Ministry of Transport and

Communications was dissolved and reconstituted into an autonomous Ghana Civil

Aviation Authority (GCAA), entrusted with all functions relating to the regulation of civil

aviation and air navigation in Ghana.610 Although established as an autonomous body, the

GCAA was placed under the ministerial responsibility of the Secretary (Minister) for

Transport and Communications, and the Secretary was given the authority to make

regulations by legislative instrument giving effect to the provisions of the Law.611

However, the Law contained no specific provisions conceming the implementation of

commitments assumed under the Chicago Convention and its Annexes.612

In the exerCIse of the power to make regulations, the Minister for Transport and

Communications, in 1996, adopted the Civil Aviation Regulations.613 The Regulations

provide detailed rules dealing with matters such as: the registration and marking of

aircraft in Ghana; the issuance of air operator's certificates; airworthiness and equipment

of aircraft; aircraft crew and licensing; control of air traffic; aerodromes, aeronautical

608 This power struggle has been openly manifested in the disputes between the EU Transport Commissioner and sorne EU states as to who has power to negotiate bilateral air transport agreements with third country parties, ultimately resulting in the November 2002 "Open Skies" decisions of the European Court of Justice. For a comprehensive summary ofthese disputes, see Allan 1. Mendelsohn, "The USA and the EU - Aviation Relations: An Impasse or an Opportunity?" (2004) XXIX:4-5 Air & Space L. 263 at 264-65. 609 Ghana Civil Aviation Authority Law, 1986 (P.N.D.C.L. 151) [GCAA Law, 1986]. 6\0 Ibid. §§ 2, 23 & 24. 611 Ibid. § 25. 612 This was in spite of the fact that Ghana adhered to the Chicago Convention as far back as 9 May 1957. 613 Ghana Civil Aviation Regulations, 1996 (L.1. 1617) [GCA Regulations, 1996].

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lights and dangerous lights; and the operation of aircrait. For present purposes, the most

important provision of the Regulations is contained in regulation 106, Entitled

"Compliance with ICAO". It provides

[u ]nless otherwise specified in these regulations, ail standards and recommended practices identified in the l C. A. 0. Annexes, unless a difference has been cited by the Authority, are incorporation [sic] into these regulations.614

On 12 October 1999, Ghana notified ICAO that no differences exist between its national

practices and regulations and those established under Annex 16 Volume II.615 Thus, in

accordance with regulation 106, the provisions of Annex 16 Volume II have been fully

incorporated into the Ghana Civil Aviation Regulations since no differences have been

cited by the GCAA, and the Regulations do not contain any provisions specifically

excluding the provisions of Annex 16 Volume II or indeed, those of any other Annex to

the Chicago Convention. Hence, as far as compliance goes, Ghana is deemed to be in

very good standing because the very language of the entire Annex 16 Volume II is part of

Ghanaian law. However, in accordance with article 38 of the Chicago Convention, Ghana

could notify ICAO of differences if any were to be discovered subsequently. It is

submitted that the fact that regulation 106 refers only to differences already cited by the

Authority does not exclude the exercise ofthis right subsequently.

However, beyond the foregoing, there are no provisions in the Regulations conceming the

manner in which the commitments assumed under Annex 16 Volume II are to be carried

out. Although there are provisions in the Regulations on airworthiness certification of

aircraft as well as on validation of airworthiness certificates issued under the laws of

foreign countries,616 there is no requirement that smoke and emissions certification be

included as part of the airworthiness certification process as pertains in the USA and the

EU.617 Indeed, it is doubtful whether the GCAA has the expertise and equipment required

to undertake the certification tests prescribed in the appendices to Annex 16 Volume II. In

any event, at present, there are no airframe or aircraft engine manufacturers in Ghana and

614 Ibid. Regulation 106(1) [emphasis added]. 615 See Annex 16 Volume II, supra note 17 Supplement dated March 2003 at iii. 616 GCA Regulations, 1996, supra note 613 part III. 617 See sections 4.3.2 & 4.3.3 above.

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so the need does not arise. One therefore gets the impression that the incorporation of the

standards in Annex 16 Volume II into Ghanaian law was driven primarily by factors other

than the desire to domestically implement them. Among the many reasons, the desire to

be seen and/or considered as a law abiding nation in the international civil aviation

community appears to be the overriding consideration in incorporating the standards. The

foregoing assertions are strengthened by the fact that the original linguistic mistakes

contained in regulation 106 have remained uncorrected to date, showing the level of

importance attached to the matter by past and present Ghanaian govemments.

4.4 Concluding Remarks

The focus of this chapter has been to provide sorne insights into issues of compliance,

implementation and effectiveness in relation to the regulatory regime adopted by ICAO in

Annex 16 Volume II. At the internationallevel, it has been found that although ICAO has

in place systems for implementation review of safety and security related standards, no

such systems exist in respect of the environment-related standards contained in Annex 16

Volume II. At best, article 38 of the Chicago Convention may only be characterized as a

system for non-implementation review because it requires notification of differences by

non-complying states. Indeed, those contracting states that have notified ICAO that no

differences exist between their national practices and regulations and those established by

the standards have done so voluntarily and not out of respect for any obligation to do so.

At the national level, at least one trend appears evident. Contracting states have aligned

their nationallegislation with their international commitments under Annex 16 Volume II

for a multiplicity of reasons other than the desire to actually implement the standards

contained in the latter. In most cases, compliance by target groups is only coincidental

and not primarily the result of domestic implementation of the international standards. In

spite of the foregoing, it appears that ICAO's interest in the national implementation of

the standards does not transcend ensuring that national legislation conforms to the

standards. This failure to inquire as to whether beyond incorporation, the standards are

actually being implemented by contracting states detracts immensely from the

effectiveness of Annex 16 Volume II as an international regulatory regime.

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SUMMARY AND CONCLUSIONS

Air transport is of immense utility to mankind. It provides a unique means of global

networking, linking people, cultures and countries all over the world in real time.

Forecasts indicate that the worldwide civil aviation industry is projected to experience

grow rates ofbetween 5-6% per annum in the period 2004 to 2008. Like any other human

endeavor, civil aviation causes adverse impacts on the environment in several ways. In

particular, since the primary means of propulsion of aircraft is the combustion of

hydrocarbon fuel, aircraft emit gases that are harmful to the environment. To date,

scientific assessments of the impact of aircraft engine emissions on the atmospheric

environment suggest that, whereas the direct and indirect atmospheric effects of sorne

effluents are very well understood, there is significant uncertainty about the role played

by sorne other effluents in dynamic atmospheric processes and their ultimate impact on

the environment.

Being aware of the adverse environmental impact of emissions from aircraft engines,

manufacturers have, over the years, made sustained efforts to develop engines

incorporating c1eaner and efficient combustion technologies. These efforts have been

successful to sorne extent. However, the increase in aviation emissions attributable to

growth in the industry will like1y not be offset by reductions in emissions achieved

through these technological improvements. This situation gives rise to the need for sorne

sort of mechanism to ensure that the development of civil aviation is not undertaken at the

expense of damage to the environment.

The international community's response to the problem of aircraft engine emissions has

essentially taken two forms. International environmental treaties generally dealing with

subjects such as depletion of the ozone layer, long-range transboundary air pollution and

global climate change have been adopted over the years. Under these treaties, effluents

emitted from aircraft engines are dealt with as part of general anthropogenic emissions

that adversely affect the environment and are regulated without regard to their sources.

Most of the relevant treaties in this category have been discussed in this study, and it has

been found that this approach to environmental regulation inevitably results in a

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patchwork of international commitments which, in sorne instances, do contradict each

other. Moreover, states parties to these treaty regimes differ from treaty to treaty. This

implies that there would be no universal basis for the regulation of aircraft engme

emissions, a factor that is essential due to the international nature of air transport.

A much more focused response to the issue of aircraft engme emlSSlOns is the

aircraftlengine certification regime adopted by ICAO under and by virtue of Annex 16

Volume II to the Chicago Convention. This approach employs the mechanism of

international SARPs under the Chicago Convention notwithstanding reservations

expressed in the literature about the status and legal effect of ICAO's SARPs. The major

drawbacks of this regime lie mainly in the fact that it uses only one pre-emptive measure

(certification) to the exclusion of other proven regulatory measures as the means of

controlling the emission of a specified range of pollutants from aircraft engines. Recent

developments in ICAO, particularly in the deliberations of CAEP, suggest that ICAO is

very much aware of these drawbacks and that it has commissioned studies on market

based options as complementary and/or alternative measures to control emissions from

aircraft engines. However, the rate of progress in this direction has been very slow

indeed.

The standards contained in Annex 16 Volume II are international regulations designed for

implementation at the national level by contracting states. However, ICAO has not

established any system for the review of national implementation of the standards as it

has in the case of the safety-related and security-related standards contained in other

Annexes to the Chicago Convention. The absence of a system for implementation review

of the environment-related standards contained in Annex 16 Volume II reflects the level

of importance ICAO attaches to environmental protection. Furthermore, a cursory look at

the manner of irnplernentation of the standards in sorne contracting states as well as the

factors driving compliance by target groups indicates that compliance in most instances is

only coincidental and is in no way related to the desire on the part of contracting states to

achieve maximum compatibility between the safe and orderly development of civil

aviation and the quality ofthe human environment.

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In other words, target groups strive to comply with the standards contained in Annex 16

Volume II not primarily because they are under obligation to do so as a result of the

national implementation of the standards but due to a range of other reasons (e.g. the

pressure exerted on manufacturers by the fact that aircraft and aircraft engines are

international commodities and as such must comply with international standards). In the

same way, states align their domestic legislation to the standards for a variety of reasons,

least among which is the desire to implement the standards. As shown in the case of

Ghana, and for that matter most developing and third world countries, the standards have

been incorporated into domestic law, and therefore satisfy the dut y imposed on

contracting states under article 38 of the Chicago Convention. Yet it is doubtful whether

there are financial resources, qualified personnel and logistics in place to perform the

obligations assumed thereunder.

To enhance the effectiveness of the regulatory regime established under Annex 16

Volume II, it is suggested that: (1) the scope ofregulated substances should be broadened

to encompass aIl effluents that are emitted in aircraft engine emissions; (2) urgent action

should be taken to include other regulatory mechanisms, especially the market-based

options under discussion, in Annex 16 Volume II; (3) an ICAO universal environmental

audit programme should be established or incorporated into one of the existing univers al

audit programmes, so as to afford ICAO the opportunity to review the domestic

implementation of the standards contained in Annex 16 Volume II; and (4) technical and

financial assistance should be provided to third world and developing countries for the

performance oftheir obligations under the Annex. ICAO's environmental policy needs to

be redefined so as to shift emphasis from merely reducing the level of emissions to

environmental sustainability in international air transport. Further, steps should be taken

to improve the level of scientific understanding of the impact of aircraft engine emissions

on the atmospheric environment.

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BIBLIOGRAPHY

PRIMARY MATERIALS

NATIONAL LEGISLATION

Ghana

Ghana Civil Aviation Authority Law, 1986 (P.N.D.C.L. 151).

Ghana Civil Aviation Regulations, 1996 (L.I. 1617).

United States

42 V.S.c. Chapter 85 § 7571 (2002).

14 C.F.R. Part 21 (2004).

40 C.F.R Part 87 (2004).

49 C.F.R Part 1 (2004).

GOVERNMENTDOCUMENTS

Canada

Environment Canada, Canadian Perspectives on Air Pollution by Hilbom, J. & Still, M. (Ottawa: State ofthe Environment Reporting, September 1990).

Transport Canada, The Greening of Aviation by Cornish, J.L., Nicell, J.A. & Groenewege, A.D. (Montreal, QC: Transportation Development Centre, January 1996).

United States

NASA, Atmospheric Effects of Subsonic Aircraft: Interim Assessment of the Advanced Subsonic Technology Program by Friedl, RR et al. (Washington, DC: National Aeronautics and Space Administration, 1997).

123


NASA, Global Atmospheric Effects of Aviation: Report of the Proceedings of the Symposium held at Virginia Beach, Virginia USA 15-19 April 1996 by Albritton, D.L. et al. (Washington, DC: NASA Office of Aeronautics and Space Transportation Technology, May 1997).

NASA, Scientific Assessment of the Atmospheric Effects of Stratospheric Aircraft by Stolarski, R.S. et al. (Washington, DC: National Aeronautics and Space Administration, 1995).

INTERNATIONAL MATERIALS

Treaties and Other International Agreements

Agreement Between the Government of the United States of America and the Government of Canada on Air Quality, 13 March 1991, Cano T.S. 1991 No. 3, 30 I.L.M. 676.

Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer, 29 June 1990, Annex II of the Report of the Second Meeting of the Parties, UNEP/OzL.Pro.2/3.

Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer adopted by the Ninth Meeting of the Parties, 17 September 1997, Annex IV of the Report of the Ninth Meeting ofthe Parties, UNEP/OzL.Pro.9/12.

Conference on Security and Co-operation in Europe: Final Act, 1975, 14 I.L.M. 1292.

Conventionfor the Protection of the Ozone Layer, 22 March 1985, 1513 V.N.T.S. 293.

Convention on International Civil Aviation, 7 December 1944, 15 V.N.T.S. 295.

Convention on Long-Range Transboundary Air Pollution, 13 November 1979, 1302 U.N.T.S.217.

International Standards and Recommended Practices: Environmental Protection; Annex 16 to the Convention on International Civil Aviation, Volume II: Aircraft Engine Emissions, 2d ed. July 1993.

Protocol on Substances that deplete the Ozone Layer, 16 September 1987, 1522 V.N.T.S. 3.

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Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes, 31 October 1988, 281.L.M. 212.

Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes, 18 November 1991,2001 V.N.T.S. 187.

Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on the Reduction ofSulphur Emissions or their Transboundary Fluxes by at least 30 per cent, 8 July 1985, 1480 V.N.T.S. 215.

Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Further Reduction ofSulphur Emissions, 14 June 1994,33 I.L.M. 1540.

Protocol to the 1979 Convention on Long-range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-level Ozone, 30 November 1999, UN ESC Doc.EB.AIR/1999/1.

Protocol to the United Nations Framework Convention on Climate Change, Il December 1997, U.N. Doc. FCCC/CPI199717/Add. 1.

United Nations Convention on the Law of the Sea, 10 December 1982, 1833 V.N.T.S. 3.

United Nations Framework Convention on Climate Change, 9 May 1992, 1771 V.N.T.S. 107.

European Union Regulations

EC, Commission Regulation 1701/03 of24 September 2003 adapting Article 6 of Regulation 1592/02 of the European Parliament and of the Council on Common Rules in the Field of Civil Aviation and establishing a European Aviation Safety Agency, [2003] O.J. L. 243/5.

---. Commission Regulation 1702/03 of 24 September 2003 laying down Implementing Rules for the Airworthiness and Environmental Certification of Aircraft and Related Products, Parts and Appliances, as weil as for the Certification of Design and Production Organisations, [2003] O.J. L. 243/6.

---. European Parliament and Council Regulation 1592/02 of 15 July 2002 on Common Rules in the Field of Civil Aviation and establishing a European Aviation Safety Agency, [2002] O.J. L. 240/1.

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International Civil Aviation Organization Documents

ICAO, Assembly Resolutions in Force (as of 5th October 2001), ICAO Doc. 9790.

ICAO, Consolidated Statement of Continuing ICA 0 Policies and Practices related to Environmental Protection, Assembly Resolution A32-8.

ICAO, Consolidated Statement ofContinuing ICA 0 Policies and Practices related to Environmental Protection, Assembly Resolution A33-7.

ICAO, Consolidated Statement ofContinuing ICA 0 Policies and Practices related to Environmental Protection, Assembly Resolution A35-5.

ICAO, Consolidated Statement ofContinuing ICA 0 Policies Related to the Safeguarding of International Civil Aviation Against Acts of Unlawful Interference, Assembly Resolution A35-9.

ICAO, Continuation and Expansion of the ICAO Universal Safety Oversight Audit Programme, Assembly Resolution A33-8.

ICAO, Control of Aircraft Engine Emissions, Circular 134 AN/94 (1977).

ICAO, Council Resolution on Environmental Charges and Taxes, Adopted at the 16th Meeting ofits 149th Session, 9thDecember 1996.

ICAO, Declaration on Misuse of Civil Aircraft as Weapons of Destruction and Other Terrorist Acts involving Civil Aviation, Assembly Resolution A33-1.

ICAO, Definition of "International Standards" and "Recommended Practices", Assembly Resolution AI-31, ICAO Doc. 4411.

ICAO, Development of Standards, Recommended Practices and Procedures and/or Guidance Material relating to the Quality of the Human Environment, Assembly Resolution A18-12 (1971).

ICAO, Establishment of an ICAO Universal Safety Oversight Audit Programme, Assembly Resolution A32-11.

ICAO, Financial Contributions to the Aviation Security Plan of Action, Assembly Resolution A35-10.

ICAO, Global Air Navigation Planfor CNS/ATM Systems, ICAO Doc. 9750.

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ICAO, ICAO's Policies on Taxation in the Field of International Air Transport, ICAO Doc. 8632.

ICAO, ICAO Position at the International Conference on the Problems of the Human Environment (Stockholm June 1972), Assembly Resolution A18-11 (1971).

ICAO, Milestone Achievements of 1999 Emphasize Safety and Security of Global Air Transport, News Release PlO 19/99.

ICAO, Operational Opportunities to Minimize Fuel Use and Reduce Emissions, ICAO Circular 303 (2004).

ICAO, Proceedings of the 18th Session of the Council, 1953, ICAO Doc. 7361 C/858.

ICAO, Proceedings of the Third Session of the Council, 1948, ICAO Doc. 7310 C/846.

ICAO, Report of the Fourth Meeting of the Committee on Aviation Environmental Protection, Montreal, 6-8 April 1998, ICAO Doc. 9720, CAEP/4.

ICAO, Report of the Fifth Meeting of the Committee on Aviation Environmental Protection, Montreal, 8-17 January 2001, ICAO Doc. 9777, CAEP/5.

ICAO, Report of the Sixth Meeting of the Committee on Aviation Environmental Protection, Montreal, 2-12 February 2004, ICAO Doc. 9836, CAEP/6.

ICAO, The Global ATM Operational Concept, AN-Conf/11-WP/4.

ICAO, Transition to a Comprehensive Systems Approach for Audits in the ICAO Universal Safety Oversight Audit Programme (USOAP), Assembly Resolution A35-6.

ICAO, An Update of the ICAO Universal Safety Oversight Programme, Presentation made at the ICAO Technical Co-operation Bureau (TCB) Seminar held in Singapore, 12-14 January 2004.

Documents of Other International Organizations

IATA, One Sky ... Global ATM - The Way Forward, Air Transport Action Group Brochure.

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UNFCCC COP-1, Report of the Conference of the Parties on its first session, held at Berlinfrom 28 March to 7 April 1995, FCCC/CP/199517.

UNFCCC COP-7, Report of the Conference of the Parties on its seventh session, held at Marrakeshfrom 29 October to 10 November 2001. Addendum. Part two: Action taken by the Conference of the Parties. Volume II, FCCC/CP/200l/13/Add.2.

SECONDARY MATERIALS

Books

A1exandrowicz, Charles Henry. The Law-making Functions of the Specialised Agencies of the United Nations (London, UK: Angus & Robertson, 1973).

Buergenthal, Thomas. Law-making in the International Civil Aviation Organization (New York: Syracuse University Press, 1969).

Cameron, Peter D. "The Kyoto Process: Past, Present and Future" in Peter D. Cameron & Donald Zillman, eds., Kyoto: from Principles to Practice (The Hague: Kluwer Law International, 2001) 3.

Charlesworth, Hilary & Chinkin, Christine. "Regulatory Frameworks in International Law" in Christine Parker et al., eds., Regulating Law (Oxford: Oxford University Press, 2004) 246.

Cheng, Bin. The Law of International Air Transport (New York: Oceana, 1962).

Crutzen, Paul J. & Brühl, Christoph. "The Atmospheric Chemical Effects of Aircraft Operations" in Ulrich Schumann, ed., Air Traffic and the EnvironmentBackground Tendencies and Potential Global Atmospheric Effects: Proceedings of a DLR International Colloquium, Bonn, Germany, November 15-16, 1990 (Berlin: Springer-V erlag, 1990) 96.

Dempsey, Paul Stephen & Gesell, Laurence E. The Law of Commercial Aviation (Chandler, Arizona: Coast Aire Publications, 2004).

Detter, Ingrid. Law Making by International Organizations (Stockholm: P.A. Norstedt & Soners Forlag, 1965).

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Elsom, Derek M. Atmospheric Pollution: A Global Problem, 2nd ed. (Oxford, DK.: Blackwell, 1992).

Glasgow, Ross. "Acid Rain: A Canadian Policy Perspective" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia: University of Pennsylvania Press, 1991) 310.

Gupta, Joyeeta & ToI, Richard SJ. "Why Reduce Greenhouse Gas Emissions? Reasons, Issue-linkages and Dilemmas" in Ekko C. van Ierland, Joyeeta Gupta & Marcel T.J. Kok, eds., Issues in International Climate Policy: Theory and Policy (Cheltenham, DK.: Edward Elgar, 2003) 17.

Lammers, Johan G. "European Approach to Acid Rain" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia: University of Pennsylvania Press, 1991) 265.

Magraw, Daniel Barstow. "International Law and Pollution" in Daniel Barstow Magraw, ed., International Law and Pollution (Philadelphia, PA: University of Pennsylvania Press, 1991) 3.

Miles, Edward L. et al. Environmental Regime Effectiveness: Confronting Theory with Evidence (Cambridge, MA: Massachusetts Institute of Technology Press, 2002).

Okowa, Phoebe N. State Responsibility for Transboundary Air Pollution in International Law (Oxford, U.K.: Oxford University Press, 2000).

Penner, Joyce E. et al. eds., Aviation and the Global Atmosphere: Special Report of the Intergovernmental Panel on Climate Change (Cambridge, DK.: Cambridge University Press, 1999).

Sands, Philippe. Principles of International Environmental Law, 2nd ed. (Cambridge, U.K.: Cambridge University Press, 2003).

Sands, Philippe & Galizzi, Paolo. Documents in International Environmental Law, 2nd ed. (Cambridge, DK.: Cambridge University Press, 2004).

Shaw, Malcolm N. International Law, 4th ed. (Cambridge, U.K.: Cambridge University Press, 1997).

Unmack, Tim. Civil Aviation: Standards and Liabilities (London: LLP Professional, 1999).

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van Dam, Roderick D. "Regulating International Civil Aviation: An ICAO Perspective" in Tanja L. Masson-Zwaan & Pablo M.J. Mendes-de-Leon, eds., Air and Space Law: De Lege Ferenda (Dordrecht: Martinus Nijhoff, 1992) 11.

Victor, David G., Raustiala, Kal & Skolnikoff, Eugene B. "Introduction and Overview" in David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, eds., The Implementation and Effectiveness of International Environmental Commitments: Theory and Practice (Cambridge, MA: Massachusetts Institute of Technology Press, 1998) 1.

---. "Systems for Implementation Review" in David G. Victor, Kal Raustiala & Eugene B. Skolnikoff, eds., The Implementation and Effectiveness of International Environmental Commitments (Cambridge, MA: Massachusetts Institute of Technology Press, 1998) 47.

Wellbum, Alan. Air Pollution and Climate Change: The Biological Impact, 2nd ed. (Harlow, UK: Longman, 1994).

Journal Articles

Abeyratne, Ruwantissa I.R. "Aircraft Engine Emissions and Noise" (1994) 24 Envtl. Pol'y & L. 238.

---. "Sorne Recent Developments in Aviation and Environmental Protection Regulation" (2001) 32 Envtl. Pol'y & L. 32.

Brasseur, G.P. et al. "European Scientific Assessment of the Atmospheric Effects of Aircraft Emissions" (1998) 32 Atmospheric Environment 2329.

Brown, R.C. et al. "Aircraft Exhaust Sulfur Emissions" (1996) 23:24 Geophysical Research Letters 3603.

---. "Aircraft Sulfur Emissions and the Formation of Visible Contrails" (1997) 24:4 Geophysical Research Letters 385.

Cheng, Bin. "CentrifugaI Tendencies in Air Law" (1957) 10 Curr. Legal Probs. 200.

Codding, George A. "Contributions of the World Health Organization and the International Civil Aviation Organization to the Development of International Law" (1965) Proceedings of the American Society of International Law 147.

Dempsey, Paul Stephen. "Trade and Transport Policy in Inclement Skies: The Conflict Between Sustainable Air Transportation and Neo-Classical Economics" (2000) 65 J. Air L. & Corn. 639.

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Dobbie, Léonie. "ICAO Certification Standards for Aircraft Engine Emissions" (1996) XXI:2 Air & Space L. 62.

Dopelheuer, Andreas. "Aircraft Emission Parameter Modelling" (2000) 2:3 Air & Space Europe 34.

Ducrest, Jacques. "Legislative and Quasi-Legislative Functions ofICAO: Towards Improved Efficiency" (1995) XX:I Ann. Air & Sp. L. 343.

Gardner, R.M. et al. "The ANCAT/EC Global Inventory ofNOx Emissions from Aircraft" (1997) 31: 12 Atmospheric Environment 1751.

Glode, Mark L. & Glode, Beverly Nelson. "Transboundary Pollution: Acid Rain and United States-Canadian Relations" (1993) 20 B. C. Envtl. Aff. L. Rev. 1.

Green, Michael Gerard. "Control of Air Pollutant Emissions from Aircraft Engines: Local Impacts of National Concern" (1999) 5:2 Envtl. Law. 513.

Greene, David L. & Wegener, Michael. "Sustainable Transport" (1997) 5:3 Journal of Transport Geography 177.

Mendelsohn, Allan 1. "The USA and the EU - Aviation Relations: An Impasse or an Opportunity?" (2004) XXIX:4-5 Air & Space L. 263.

Mendes de Leon, Pablo M.J. "Aviation and the Environment: Changing Perceptions" (1997) XXII:3 Air & Space L. 131.

Miller, Heather L. "Civil Aircraft Emissions and International Treaty Law" (1998) 63 J. Air L. & Corn. 697.

Novello, David P. "Introductory Note to Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Volatile Organic Compounds or their Transboundary Fluxes" (1992) 31 I.L.M. 568.

Raustiala, Kal. "Compliance & Effectiveness in International Regulatory Cooperation" (2000) 32:3 Case W. Res. J. Int'l L. 387.

Schumann, Ulrich. "Effects of Aircraft Emissions on Ozone, Cirrus Clouds, and Global Climate" (2000) 2:3 Air & Space Europe 29.

Shapiro, William J. "Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone" (1999) Colo. J. Int'l Envtl. L. Y.B. 208.

131


Vedantham, Anu & Oppenheimer, Michael. "Long-term Scenarios for Aviation: Demand and Emissions ofC02 and NOx" (1998) 26:8 Energy Policy 625.

Articles in Magazines and N ewspapers

Brewer, A.W. "Condensation Trails" Weather 1 (June 1946) 34.

Crayston, John. "Civil Aviation and the Environment" (1993) 16:1-2 UNEP Industry and Environment 51.

Dobbie, Léonie & Eran-Tasker, Martin. "Measures to Minimize Fuel Consumption appear to be of Greatest Importance to Airlines" (2001) 56:41C.A.o. Journal 24.

Hupe, Jane. "Experts Reformulating Strategy for Alleviating Aviation's Impact on the Environment" (2001) 56:41C.A.o. Journal 5.

---. "Work on Environmental Protection Reflects Need for Balancing Many Factors" (2004) 59:5 I C.A. 0. Journal 4.

ICAO Secretariat. "ICAO Circular Examines Ways to Minimize Aircraft Fuel Use and Reduce Emissions" (2004) 59:21C.A.o. Journal 23.

---. "ICAO Facing Complex and Evolving Challenges in the Environmental Field: Recent Developments in the Aircraft Noise and Emissions Fields Underline the Need for ICAO's Global Approach to Resolving Environmental Problems Associated with Air Transport" (1999) 54:7 IC.A.o. Journal 5.

---. "ICAO Update: Experts Recommend Further Measures to Protect the Environment" (2004) 59:21C.A.o. Journal 25.

Karmali, Abyd & Harris, Melinda. "ICAO Exploring Development of a Trading Scheme for Emissions from Aviation" (2004) 59:5 I C.A. O. Journal1l.

Schleck, Dave. "High Fliers may be Creating Clouds: Global Warming may be Worsened by Contrails from Aircraft" The [Montreal] Gazette, (Sunday July 18, 2004), IN6.

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Thesis and Research Papers

Marathe, Rajan. Impact of Aviation on the Environment (M. Sc. Project Report, Department of Civil Engineering and Applied Mechanics, McGill University, 1995) [unpublished].

Savin, Sophie. The Environmental Impact of Aeronautical Activities: Legal Aspects (LL.M Thesis, Institute of Air and Space Law, McGill University, 1993) [unpublished].

Web sites Visited

BBC World News http://news.hbc.co.uk/2/hi/europe/851209.stm

Concorde SST http://www.concordesst.com/retire/ announcements.html

European Aviation Safety Agency http://www.easa.eu.int

International Civil Aviation Organization http://www.icao.int

LRTAP Convention Website http://www.unece.orglenv/lrtap/

133