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.