The aviation industry has been identified as a target for reducing greenhouse gas emissions globally and also as a means for generating funds for climate change adaptation and mitigation. However, a legally binding agreement to limit emissions in developed and developing countries, including aviation emissions, was not reached at the Copenhagen Climate Conference in December 2009 (COP 15). Work to achieve this goal will continue in 2010.

Copenhagen Accord

The primary outcome of the Conference, the Copenhagen Accord, is “politically”, rather than “legally”, binding. The Accord endorses for the first time in a global context the objective of limiting global temperature rises to less than 2°C above pre-industrial levels. It does not refer to a legally binding agreement in respect of global emissions being entered into in the future. Nor does it set out a 2050 global emissions reduction goal. Significantly, despite protracted discussions in relation to shipping and aviation emissions in the “bunker fuels” drafting group at Copenhagen (which relates to shipping and aviation emissions), the Accord is silent on the question of transport emissions. For more information on the Accord and the Copenhagen conference view here.

Copenhagen Negotiations

The primary focus of the bunker fuel negotiations prior to Copenhagen was “Non-Paper 49”, the result of the last round of climate change talks held at Barcelona in October/November 2009.1 Non-Paper 49 reflected seven distinct options, most of which referenced an ongoing role for the International Civil Aviation Organization (ICAO) in addressing aviation emissions.

The draft conclusions which reflect the outcome of the negotiations of this Non-Paper at Copenhagen contain only the following wording:

“[To be elaborated: policy approaches and measures to limit and reduce greenhouse gas emissions from aviation and marine bunker fuels];”2

This contrasts strongly to the relatively lengthy draft text in respect of other elements of the negotiations and reflects the complexity of the issues. More detailed text had been prepared by Canadian and Venezuelan negotiators which may somehow be included in a report of the session as a basis for future discussions. Separate discussions were held between Norwegian and Singaporean representatives at a “political” level in Copenhagen but these also left a number of key issues to be resolved.

Important issues to be settled include establishing sufficiently ambitious mid-term and long-tem global goals for emissions reductions, what principles should guide these policies, how to ensure that policy approaches do not lead to competitive distortions or “carbon leakage”, ensuring that revenues generated by any measures is used for adaptation and mitigation to climate change and promotion of cooperation in transfer of technologies, practices, processes, and methodologies in international aviation transport.

The future

In the face of growing momentum in respect of aviation emissions regulation, a number of entities, including Aviation Global Deal, The International Air Transport Association (IATA) and ICAO have already been working on policy options. Further deliberations on the measures and initiatives agreed at ICAO’s High-Level Meeting, in October 2009, including an aspirational 2 per cent annual global improvement in fuel efficiency goal until 2050, will take place at the eighth meeting of ICAO’s Committee on Aviation Environmental Protection (CAEP) in February 2010. IATA has announced that it will work closely with ICAO to prepare a global framework for managing aviation emissions for consideration at next September’s ICAO Assembly with a view to COP 16, which is scheduled for December 2010 in Mexico.

EU ETS Aviation

Meanwhile, on 16 December 2009, American Airlines, Continental Airlines and United Airlines, along with the Air Transport Association (ATA) brought a claim before the High Court in England challenging the UK legislation incorporating the aviation sector into the EU’s Emissions Trading Scheme into national law.

We understand that the claim cites breaches of the Chicago Convention on International Aviation. Although the precise details of the claim have not yet been made public, it is thought likely that it relies on Articles 15 and 24 of the Chicago Convention to challenge the extra-territorial effect of the scheme. A further ground of challenge is believed to be the EU - US Open Skies Agreement. While the EU re-assured itself that the inclusion of aviation in its emissions trading scheme did not breach any of its international obligations before introducing the legislation, these issues are highly controversial and the matter is by no means clear cut.

It is likely that any determination on the legality of the EU ETS will be referred to the EU’s Court of Justice in Luxembourg under the preliminary reference procedure. Such a ruling would be expected to take at least 18 months, possibly longer. In the meantime, the EU and its Member States will continue to implement the scheme.

Conclusions

As a result of the inability to garner consensus at Copenhagen, ICAO is now left to go about its work in the absence of any useful guidance in respect of timetables, levels of ambition or the principles to guide their implementation of policy responses. Copenhagen presented an opportunity to resolve some of these key issues but this has been lost, at least for the time being. This is unlikely to make progress at the ICAO any faster. It is also unclear whether a patchwork of domestic or regional aviation emissions control schemes like the EU ETS will come to prevail in the absence of a global agreement. Even once the fog of Copenhagen clears, expect turbulence ahead.