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A Corrective Approach to Reduce Aircraft Greenhouse Gas Emissions

On Thursday 16 November 2017 Thomas Leclerc will defend his PhD Dissertation ‘A Corrective Approach to Reduce Aircraft Greenhouse Gas Emissions. Contribution to the Study of Interactions between Legal Orders of International Law’. The defence will commence at 13.45 hrs, at the Academy Building of Leiden University, Rapenburg 73. The Supervisors are Professor P. Mendes de Leon and Professor L. Grard.

Thomas Leclerc
Thomas Leclerc

The need for a global market-based measure to reduce aviation emissions

A large majority seems nowadays to acknowledge the necessity of corrective measures, based on the environmental principle that the ‘polluter pays’, in order to reduce greenhouse gas emissions from international civil aviation. The recent decision of the 39th session of the Assembly of the International Civil Aviation Organisation (ICAO) illustrates the necessity for corrective measures in the form of a global and market-based measure (GMBM). In October 2016, ICAO was in fact successful in deciding "to implement a GMBM scheme in the form of the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) to address any annual increase in total CO2 emissions from international civil aviation".

The technical, environmental and economic aspects of such a global scheme have been and are extensively studied by ICAO and policy directions found their way into Resolutions adopted by the Assembly. Yet, the search for a GMBM to reduce greenhouse gas emissions from international civil aviation also faces important legal obstacles.

A challenge at the crossroads of legal orders of international law

The legal obstacles take the form of conflicts of norms linked to the general challenge of the interaction between international aviation law, climate change law and European law. As a way of illustration, climate measures in line with the concept of Common But Differentiated Responsibilities and Respective Capacities – involving a differentiation of obligations between developed and developing countries – may be regarded as in conflict with the principle of non-discrimination contained in the founding charter of aviation law: the Chicago Convention. A second example, on an institutional level, is that the unilateral action of the European Union of integrating international aviation into its regional Emissions Trading System, may be regarded as conflicting with the competences and normative powers of both third States and ICAO.

To deal with such conflicting situations, the best solution that emerged was the evolutionary interpretation of the provisions of the Chicago Convention in order to reconcile norms of a substantive and institutional nature. However, this method perpetuates legal uncertainty and poses the general challenge of flexibility and elasticity of the Chicago regime in response to the climate change challenge.

The Research

This PhD research defends the underestimated relevance of the ongoing distinction between the legal regimes of air navigation and international air transport. For some cases of tension between climate law principles and substantive specificities of the Chicago regime, applying this distinction would avoid the use of evolutionary interpretation. For other cases of tension linked to the institutional specificities of the Chicago regime, the use of evolutionary interpretation remains necessary. But even in this situation, an analysis of such specificities in the light of the distinction leads to the conclusion that it is possible to adapt the Chicago regime without amendment to its founding charter.

All in all, a rigorous application of the distinction between the legal regimes of air navigation and international air transport, combined with an adequate classification of the preferred corrective measure – the market-based measure – in light of this distinction, is a key process in the search for a global and corrective solution to the impact of international civil aviation on climate change. Recognizing the role that this distinction plays is a key step in restoring legal certainty and ensuring the sustainable development of international aviation activities.

Prof.dr. P.M.J. Mendes de Leon

"A highly sophisticated and excellently researched and analysed study of complex multijurisdictional questions involving the application of international law, including international air law, environmental law and European law."

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