Brennan

Page 75 Space

Space Court: Establishing a Regulatory Body for the Protection of the Space Environment In line with the need for action, we propose the establishment of an international environmental body, with specific responsibility for the regulation of space exploration. Such a body could mediate disputes between actors and determine liability for pollution of the orbital environment. If successful, it would operate having regard to the Outer Space Treaty, but also be capable of engaging with the commercial sector as its influence on space exploration becomes apparent. International regulations, operating in line with the precautionary principle would be of great assistance to space explorers in understanding the need to operate in a sustainable manner. This also leaves precedent for the regulation of planetary exploration, when technology reaches the point that it becomes possible to extract resources from other planets. Humanity has struggled to address the consequences of overexploitation of our planet’s resources. We must not make the same mistakes as we seek to take the next giant leap for mankind.

Conclusion

It is clear that the Outer Space Treaty no longer fully reflects the space exploration environment on Earth. The Treaty, while well-intentioned, is outdated, and leaves much to be desired in terms of imposing responsibility on those who act in an unsustainable manner while exploring space. Bearing in mind the alarming pollution levels on our own planet, and the ever increasing rate of exploration, the time has come for change in space pollution regulation. In light of the above suggestions, it is time for us all to remember: “[d]o or do not. There is no try.”

Sky High Emissions in Aviation: International Regulation, the Carbon Offsetting and Reduction Scheme, and COVID’s Impact

By Sophie Brennan, Postgraduate Student in International and European Business Law

Aviation’s Contribution to Emissions, pre COVID

It will not come as a surprise that civil aviation (aviation which is inclusive of both commercial and private flights, ie. non-military aviation) plays a role in the ever growing concerns around climate change. In September 2020, the Air Transport Action Group reported that the aviation industry had produced 915 million tonnes of carbon dioxide in 2019, globally. This figure indicates that the aviation industry was responsible for twelve per cent of CO2 emissions across all transport sources. Considering that the aviation industry was on a path of growth until the pandemic hit – with just over one and a half billion travellers internationally in 2000, compared to just under four and a half billion in 2020 - and with flying continually becoming cheaper and more accessible, it is clear that the contribution of aviation to global warming requires regulation and fundamental change.

Regulation of Aviation Emissions

The aviation industry and its contribution to global emissions can be regulated on three separate levels: nationally, regionally, and internationally. While there are a host of approaches to aviation emissions on both national and regional levels, aviation is said to be most effectively handled at an international level due to the global nature

Air Page 76 of the industry itself. After all, international flights account for sixty five percent of the industry’s emissions, as of 2019. A prevalent international framework on climate change is the Paris Agreement 2016, alongside the preceding Kyoto Protocol. The Kyoto Protocol was an extension of the 1992 United Nations Framework Convention on Climate Change. The Paris Agreement set out to improve upon and replace Kyoto, however, it makes no explicit mention of aviation provisions, which were reportedly edited out in the final days of drafting. According to Dr. Olumuyiwa Benard Aliu, a former president of the International Civil Aviation Authority (‘ICAO’) this omission to mention aviation was a ‘vote of confidence’ in the ICAO, vesting exclusivity in the ICAO to deal with international aviation emissions. While the Chicago Convention, the Convention on Civil Aviation which established the ICAO, does not give the ICAO explicit control over such emissions. It does provide ‘sufficient authority’ to develop legal mechanisms surrounding the environment and aviation.

The Standards and Recommended Practices (‘SARPs’) are the technical specifications adopted by the ICAO Council which aim to achieve the highest level of uniformity possible with regards to regulations, standards and procedures. Annex 16, Volume IV on Environmental Protection establishes the Carbon Offsetting and Reduction Scheme for International Aviation (‘CORSIA’), officially adopted in June 2018. The incentive of the CORSIA was to address any annual increases in CO2 emissions from international civil aviation above 2019/2020 levels and to help the aviation industry reach its aspirations of making growth in international flights ‘carbon neutral’ after 2020. The strategy was to implement the scheme in phases, with a voluntary pilot phase from 2021-2023, a ‘first phase’ from 2024-2026 also voluntary in nature and a ‘second phase’ through to 2035 which applies to States on a mandatory basis. There are exemptions however, for small islands, lesser developed countries, and States which contribute to less than half of a percent of air traffic. The main premise of the CORSIA was to combine the amount of emissions between 2019 and 2020, and make that amount the baseline. In following years, airlines will have to restrict themselves to the established baseline, and if they were to go over, they would be obliged to purchase emissions units to offset their excess. Similar strategies have been seen before, for example in the EU Emissions Trading System (‘ETS’), which has proven to be an effective mechanism in decreasing emissions. According to the European Commission, emissions from installations covered by the ETS declined by thirty five percent from 2005-2019.

“The aviation industry and its contribution to global emissions can be regulated on three separate levels: nationally, regionally, and internationally. While there are a host of approaches to aviation emissions on both national and regional levels, aviation is said to be most effectively handled at an international level due to the global nature of the industry itself.”

COVID Complications

A global pandemic under which frequent holiday makers and business travellers are being instructed by their national governments to stay at home has had a massive impact on the aviation industry and the number of flights in 2020. In the EU alone, passenger traffic was down seventy percent. Ryanair, for example, lost €320 million in the third quarter of 2020, with the losses in European airlines overall amounting to nearly 30 billion USD. Because of this drastic halt in commercial flights, the baseline which was to be calculated as the average of 2019 and 2020 emissions from the sector would have been much lower than foreseeable at the inception of the CORSIA. The baseline, taking 2020 into account, would be thirty percent more stringent than anticipated. This would create a situation in which airlines would struggle to keep on track with the baseline from year to year.

An Inappropriate Economic Burden

Going forward, if airlines were to stick to the emissions baseline of 2019/2020, this would certainly have generated an inappropriate economic burden with regards to the COVID-19 pandemic. This burden is in contravention to Assembly Resolution A40-19, which safeguards against same. It is worth noting that this economic burden would only be an issue if the aviation industry springs back in 2021 This is subject to uncertainty, but for the purposes of this article it can be assumed to be true. The reality of imposing an unfair burden on the industry was considered by the ICAO Council at its 220th session in June 2020. An analysis by the Committee on Aviation Environmental Protection was taken into account. Ultimately, the Council utilised the safeguard in paragraph 16 of A40-19 which ensures the ‘sustainable development’ of the aviation sector, and determined that the value of 2019 emissions shall be used instead of 2020 emissions during the pilot phase, so as not to burden the industry and States which have voluntarily become involved in CORSIA’s pilot phase. It was noted that if 2020 emissions were to be used, it would go against the original intentions and objectives of the 193 member states which adopted CORSIA at the beginning. The Council also highlighted the importance of paragraph 17 of A40-19, which offers an opportunity to examine the actual impacts of COVID-19 on CORSIA. This could serve as a good opportunity to examine the industry and its emissions as recovery post-COVID begins to unfold. Overall, the remedy provided was described as the ‘most reasonable solution available’ by ICAO President Salvatore Sciacchitano.

Looking Forward

Once the aviation industry begins to recover from COVID-19 and flight demand increases again, the CORSIA will have a proper chance to operate uninhibited, providing an incentive for airlines to make ethical decisions regarding their emissions and resulting in a reduction of same. It is anticipated that the CORSIA will ultimately result in an offset of two and a half billion tonnes of CO2 within the aviation industry by 2035. If this estimation is fulfilled, these initial issues with the scheme may be outgrown, and the impact of the aviation industry on the environment may be regulated more efficiently.

“Once the aviation industry begins to recover from COVID-19 and flight demand increases again, the CORSIA will have a proper chance to operate uninhibited, providing an incentive for airlines to make ethical decisions regarding their emissions and resulting in a reduction of same.”

“Unprecedented technological capabilities combined with unlimited human creativity have given us tremendous power to take on intractable problems like poverty, unemployment, disease, and environmental degradation. Our challenge is to translate this extraordinary potential into meaningful change.” – Muhammad Yunus