Abstract
The International Civil Aviation Organization (ICAO) set a cap for international aviation’s greenhouse gas (GHG) emissions at its 2020 level and established a market-based mechanism to help achieve that cap. Against that backdrop, this article identifies ICAO’s legal obligation to mitigate climate change by examining the international climate change treaties, ICAO’s constituent treaty, the Chicago Convention, and ICAO’s organizational practice. It finds that because ICAO is not a party to the climate change treaties and has a high degree of institutional autonomy, those treaties do not directly impose an obligation on ICAO. Although the Chicago Convention does not expressly mention the environment or climate change, ICAO’s member states interpreted the Convention and enlarged ICAO’s mandate under it to include the reduction or limitation of GHG emissions from international aviation so as to prevent dangerous climate change. This article finds that pursuant to Jan Klabbers’ recently developed theory of role responsibility, ICAO arguably has an obligation to carry out this important mandate, and its failure to do so, or failure to do so effectively, could constitute an internationally wrongful omission.
Highlights
Climate change will likely result in massive ecological damage, and have tragic consequences for vulnerable populations around the world, including famine, disease, and war.[1]. It is caused by the emission of greenhouse gases (GHG’s) that are the dominant source of power for industry, buildings, and transportation—including aviation.[2]
In the Council discussion, a large number of states, including those that opposed the European Union (EU)’s inclusion of international aviation in its Emissions Trading System (ETS), stated that the International Civil Aviation Organization (ICAO) needed to accelerate the development of its own market-based measure (MBM).[113]
ICAO’s states could not use the Convention’s objective of promoting the ‘development’ of international aviation to avoid their obligation under Article 4 of the United Nations Framework Convention on Climate Change (UNFCCC) to reduce or limit GHG emissions from all forms of transportation, including aviation, and their obligation under Articles 2 and 3 of the Paris Agreement to take ambitious efforts to hold global warming to well below 2 degrees.[146]
Summary
Climate change will likely result in massive ecological damage, and have tragic consequences for vulnerable populations around the world, including famine, disease, and war.[1] It is caused by the emission of greenhouse gases (GHG’s) that are the dominant source of power for industry, buildings, and transportation—including aviation.[2] In 1944, a group of nations adopted the Chicago Convention, which serves as the ‘constitutional framework for international air transport,’ and thereby created the International Civil Aviation Organization (ICAO).[3] ICAO became a specialized agency of the United Nations in 1947, and has nearly universal membership. The article looks at whether ICAO’s mandate encompasses an obligation to act.[18]
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