CORSIA: No, the ICAO Council can’t legally change CORSIA’s rules

In March 2020 the International Air Transport Association (IATA) wrote to the 36-member Governing Council of the International Civil Aviation Organization (ICAO) requesting that the Council re-write the rules of ICAO's flagship Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). CORSIA requires airlines to offset their carbon emissions above the average of 2019-2020 emissions.

Citing the unexpectedly low aviation emissions due to the tragedy of the COVID-19 pandemic, which could result in an increase in offset obligations at such time as air travel emissions increase above this average level, IATA wants the ICAO Council to change the emissions baseline to 2019 only. They argue that implementing CORSIA with the 2019-2020 emissions baseline, as originally written, would impose an "inappropriate economic burden on international aviation."

The request is ironic: In an effort to lure back customers, airlines are publicly touting their commitments to reducing emissions - including to carbon offsetting. But behind the closed doors of the ICAO Council, they're pushing a re-write that would give them a free pass to escape offsetting requirements for three to five years or more, according to analyses by EDF and other experts.

The request for a hasty re-write raises an important legal question. Does the ICAO Council have the legal authority to change a decision of the ICAO Assembly? It appears that while the Council could, at the current session, recommend that the ICAO Assembly change the baseline, ICAO's Council lacks the legal authority to undertake this change itself. Below we review (a) the legal authority of the Assembly; (b) the legal authority of the Council; and (c) the legal character of the CORSIA baseline and Council's authority in light of that legal character.

A. The legal authority of ICAO's Assembly

The 1944 Chicago Convention on International Civil Aviation, in Article 43, establishes ICAO and its organs: "An organization to be named the International Civil Aviation Organization is formed by the Convention. It is made up of an Assembly, a Council, and such other bodies as may be necessary."

Powers of the Assembly. Article 49 specifies the authority of the Assembly, and includes the following provisions: "The powers and duties of the Assembly shall be to: … (c) Examine and take appropriate action on the reports of the Council and decide on any matter referred to it by the Council; … "(h) Delegate to the Council the powers and authority necessary or desirable for the discharge of the duties of the Organization and revoke or modify the delegations of authority at any time;" and "(k) Deal with any matter within the sphere of action of the Organization not specifically assigned to the Council" (emphasis added).

B. The legal authority of ICAO's Council

Powers of the Council. Article 54 specifies the authority of the Council. It states: "Mandatory functions of Council. The Council shall: … (b) Carry out the directions of the Assembly and discharge the duties and obligations which are laid on it by this Convention; … (l) Adopt, in accordance with the provisions of Chapter VI of this Convention, international standards and recommended practices; for convenience, designate them as Annexes to this Convention; and notify all contracting States of the action taken" (emphasis added).

That is, the Council must "carry out directions of the Assembly" and then adopt the standards and recommended practices that implement those directions. We now turn to whether the Assembly "directed" the Council to establish CORSA SARPs with the baseline of 2019-2020.

C. The legal nature of CORSIA's baseline

In 1997, when Parties to the UN Framework Convention on Climate Change (UNFCCC) could not decide how to allocate among themselves the greenhouse gas emissions of ships and aircraft in international transport, the UNFCCC Conference of the Parties (COP) requested the International Maritime Organization and ICAO, respectively, to address the issue.

ICAO studied the issue for over a decade. In 2013, the ICAO Assembly "Decide[d] to develop a global MBM [market-based measure] scheme for international aviation" and "Request[ed] the Council, with the support of Member States, to…make a recommendation on a global MBM scheme…and report the results of the work … for decision by the 39th Session of the Assembly." (See Resolution A38-18, paragraphs 18 and 19.)

The Council did so (see C.208.DEC.13.EN.DOCX), and thereupon, in 2016, the 190+ countries that are members of ICAO's General Assembly decided, at the 39th Session of the Assembly, to establish CORSIA (See Resolution 39-3 at paragraph 5). In paragraph 9 of the Resolution, the Assembly further decided to establish CORSIA's pilot phase; and in paragraph 11, the Assembly decided to set the baseline at the average of 2019-2020 levels. Each of these was taken by "Decision" - that is, the Resolution states that "The Assembly Decides…", as contrasted with a Recommendation, Request, or Note.

Further, in paragraph 20 of Resolution 39-3, the Assembly "Request[ed]" the Council, with the technical contribution of the Committee on Aviation Environmental Protection (CAEP), to develop the Standards and Recommended Practices (SARPs) and related guidance material to implement CORSIA. The Council - fulfilling its obligation under the Chicago Convention to "carry out directions of the Assembly" - has largely finished its work developing these SARPs, and nations and air operators are acting on them.

In taking these decisions, the Assembly effectuated a commitment made by airlines in 2009, when IATA adopted targets that included "A cap on aviation CO2 emissions from 2020 (carbon-neutral growth)."

In paragraph 9(g) of its 2016 Resolution 39-3, the Assembly further "Decide[d…that] Starting in 2022, the Council will conduct a review of the implementation of the CORSIA every three years, including its impact on the growth of international aviation, which serves as an important basis for the Council to consider whether it is necessary to make adjustments to the next phase or compliance cycle and, as appropriate, to recommend such adjustments to the Assembly for its decision." To implement this review, the Assembly in paragraph 19 of Resolution 39-3 "Decide[d] that a periodic review of the CORSIA is undertaken by the Council, for consideration by the Assembly, every three years from 2022 for the purpose referred to in paragraph 9 g) above and to contribute to the sustainable development of the international aviation sector and the effectiveness of the scheme". The Assembly further directed, in paragraph 19, that the review should cover "the scheme's market and cost impact on States and aircraft operators and on international aviation; and the functioning of the scheme's design elements;" as well as "consideration of the scheme's improvements that would support the purpose of the Paris Agreement, in particular its long-term temperature goals; and update the scheme's design elements to improve implementation, increase effectiveness, and minimize market distortion."

In paragraph 20, the Assembly "Request[ed]… the Council to oversee the functioning of the CORSIA." But the Assembly did not ask or direct Council to make, of its own accord, changes to the CORSIA provisions that the Assembly, by Decision, had established.

The Assembly affirmed the foregoing provisions at its 40th meeting in 2019. And while the Assembly in Resolution A40-19 "Request[ed] … the Council, with the technical contribution of CAEP, to update the Annex 16, Volume IV and Environmental Technical Manual, Volume IV, as appropriate," it never authorized the Council, sua sponte, to change CORSIA.

In its letter to ICAO asking for the baseline change, IATA said, "IATA recalls that Assembly Resolution A40-19 underlines the 'need to provide for safeguards in the CORSIA to ensure the sustainable development of the international aviation sector and against inappropriate economic burden on international aviation' and gives authority to the Council to 'identify means to address these issues'." However, the ICAO Resolutions establishing CORSIA actually say that the Assembly "Recalls its decision at the 39th Session on the need to provide for safeguards in the CORSIA to ensure the sustainable development of the international aviation sector and against inappropriate economic burden on international aviation, and requests the Council to decide the basis and criteria for triggering such action and identify possible means to address these issues" (emphasis added).

The Council, to date, has not published proposed bases or criteria for safeguards, nor any proposed means of addressing such issues. Further, nothing in the Resolutions supports the proposition that the Council could arrogate to itself the extraordinary power to make an end-run around the review processes specified by the Assembly to fundamentally alter what the Assembly decided in 2016 and reaffirmed in 2019.

Conclusion

The legal underpinnings of the CORSIA review structure were developed through tough negotiations at two successive Assemblies for a reason: If the 36-member Executive Council of ICAO could ignore the processes established by the Assemblies and simply alter decisions of Assemblies, that might sow doubt among non-Council members of ICAO as to the legitimacy of ICAO's decisions and processes. With the next Assembly slated for 2022, and the first deadline for participating airlines to cancel offsets required for CORSIA's Pilot Phase not until early 2025, there is ample time for the ICAO Council to follow the processes the Assembly established for reviewing and making any revisions, if needed, to CORSIA.

Source: EDF blog