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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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aireraft Engine Emissions from International Civil Aviation
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
Regulation of Aireraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aireraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aireraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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.
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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.
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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
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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.
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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.
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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.
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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.
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(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.
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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
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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.
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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.
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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.
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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
Regulation of Aircraft Engine Emissions from International Civil Aviation
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).
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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.
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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.
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... 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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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].
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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.
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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.
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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.
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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].
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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).
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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
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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).
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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).
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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.
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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.
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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.
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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].
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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.
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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.
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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.
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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.
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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].
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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].
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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.
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CHAPTER THREE
ICAO'S INTERNATIONAL STANDARDS AND RECOMMENDED PRACTICES
ADDRESSING AIRCRAFT ENGINE EMISSIONS
3.1 Preliminary Comments
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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].
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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.
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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.
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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.
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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].
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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].
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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.
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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.
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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
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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.
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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].
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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).
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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.
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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.
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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.
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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.
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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.
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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).
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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.
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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.
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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.
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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
4.1 Preliminary Comments
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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Regulation of Aircraft Engine Emissions from International Civil Aviation
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14 C.F.R. Part 21 (2004).
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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.
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Regulation of Aircraft Engine Emissions from International Civil Aviation
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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/
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