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R 101426Z OCT 07
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TO WESTERN HEMISPHERIC AFFAIRS DIPL POSTS

UNCLAS SECTION 01 OF 04 STATE 142219 
 
SIPDIS 
 
SIPDIS 
SENSITIVE BUT UNCLASSIFIED 
 
E.O. 12958: N/A 
TAGS: EAIR ECON ETRD SENV
SUBJECT: AVIATION EMISSIONS: 36TH ICAO ASSEMBLY SUPPORT 
MUTUAL CONSENT 
 
REF: STATE 83246 
 
¶1.  (U) Portions of this message are sensitive but 
unclassified.  Please handle accordingly.  Summary:  The 36th 
 
SIPDIS 
ICAO Assembly reached agreement on a set of actions to 
address an array of aviation environmental issues, including 
aircraft noise, local aircraft emissions, and greenhouse gas 
(GHG) emissions.  On the most contentious issue, GHG 
emissions, the U.S., with the support of a majority of ICAO 
contracting states, was successful in including language in 
the Assembly Resolution that urged States not to implement 
either greenhouse gas emission charges or an emissions 
trading scheme on other states, aircraft except on the basis 
of mutual agreement with that state.  In response to the U.S. 
proposal for a comprehensive approach to GHG emissions and 
European desires to address the issue on a fast track and at 
an appropriately high level, the Assembly also agreed to 
develop a comprehensive plan on international aviation and 
climate change.  The plan includes formation by the ICAO 
Council of a senior-level &Group on International Aviation 
and Climate Change8 (supported by the Committee on Aviation 
Environmental Protection (CAEP)), which will develop a 
framework to achieve emissions reductions based on voluntary 
measures, technological advances, operational measures, 
positive economic incentives and market-based measures.  The 
Council will convene a high level meeting in advance of the 
next Assembly in 2010 to present the program and 
recommendations for ICAO review. 
 
¶2.  (U) Despite the clear majority in favor of &mutual 
consent8, Europe would not cede its position.  Portugal, 
speaking on behalf of the member states of the European 
Community and the other states of the European Civil Aviation 
Conference (ECAC) (42 States in all) entered a formal 
&reservation8 on the Appendix dealing with emissions 
trading, reserving its view that it has the right to apply 
market-based measures on all operators of all states 
operating to, from or within their territories.  Otherwise, 
the Europeans supported the environmental Consolidated 
Resolution, including Appendices A-K. End Summary. 
 
¶3.  (SBU) COMMENT:  The Assembly outcome represents the 
beginning of what are likely to be difficult dealings with 
Europe on aviation emissions measures over the next few 
years.  In addition, a much more assertive developing world, 
threatened by the EU,s unilateral actions, is seeking 
additional protection from other international treaties such 
as the UN Framework Convention on Climate Change (UNFCCC), a 
step that may further complicate efforts to preserve the 
uniform standard-setting activities in ICAO. End Comment. 
 
NOISE 
----- 
 
¶4.  (U) The ICAO Council submitted a report on progress made 
by ICAO since the 35th session of the Assembly on aircraft 
noise.  Material had been developed for inclusion in the ICAO 
Guidance on the Balanced Approach to Noise Management. 
During the Executive Committee presentation of papers on this 
issue, both India and Nigeria proposed a review of night 
curfew restrictions imposed on some states/airports.  Both 
argued that because of improvements in aircraft performance, 
and reductions in noise, such curfews were no longer needed. 
 
 
¶5.  (U) In further discussion, it was noted that reductions 
in aircraft noise were being offset by traffic growth, and 
there was a need to continue efforts to reduce noise at 
source.  Noise management/reduction should therefore continue 
to be addressed through the balanced approach.  On night 
curfews, a majority of speakers indicated that the subject 
was already being addressed as part of the balanced approach, 
and this approach should be continued. 
 
¶6.   (U) This issue was addressed in Appendix C (Policies and 
Programmes Based on a &Balanced Approach8 to Aircraft Noise 
Management) of the draft forwarded to the Assembly for 
approval.  The U.S. joined consensus approving the language 
in this appendix, which supports continued adherence by 
States to the balanced approach to noise management. 
 
AVIATION EMISSIONS 
------------------ 
 
¶7.  (U) Because there was general support for continued ICAO 
leadership in taking a comprehensive approach to aviation GHG 
emissions relative to the role of other UN entities, the 
 
STATE 00142219  002 OF 004 
 
 
Executive Committee discussion of aviation greenhouse gas 
emissions focused on two issues: 1) the unilateral imposition 
of market-based measures (such as the EU,s emissions trading 
proposal) on airlines without consent of governments; and, 2) 
the need to take into account the concept of &common but 
differentiated responsibilities8 (CBDR) when imposing any 
obligations on developing States to address climate change. 
 
¶8.  (U) Australia, Chile, China, Egypt (representing the Arab 
Civil Aviation Conference), India, Indonesia, Nigeria 
(representing the African Civil Aviation Commission AFCAC), 
Japan (on behalf of a group of countries including the United 
States), Portugal (representing the European Civil Aviation 
Conference (ECAC), the EU and Eurocontrol), Brazil, and the 
World Tourism Organization all presented papers.  A number of 
States also made separate interventions.  There was strong 
verbal support for mutual consent from states outside Europe. 
 Developing countries were focused on the impact any 
market-based measures would have on their economies and 
aviation industries, and spoke out strongly in favor of 
inclusion of explicit language referencing CBDR in any 
Assembly resolution. 
 
¶9.  (U) Since the text on market-based measures in the draft 
Assembly Resolution was heavily bracketed going into the 
Assembly, the Chairman of the Executive Committee (President 
of the Assembly, DOT Under Secretary Jeff Shane) convened an 
informal drafting group to focus on the outstanding issues. 
The group was made up of 14 countries representing the 
various regions of the world (Argentina, Australia, Brazil, 
Canada, China, India, Japan, Nigeria, Portugal, Russia, Saudi 
Arabia, South Africa, United States, and the United Kingdom). 
 The U.S. team was led by DOT Assistant Secretary Andy 
Steinberg. 
 
¶10.  (U) Australia, Brazil, Argentina, Canada, China, Japan, 
Nigeria, Saudi Arabia, South Africa and the United States all 
favored language on mutual consent in the resolution.  The 
wild card issue was CBDR, and how that would influence each 
state's (particularly developing states) position as the 
negotiations on a text moved forward. 
 
COMMON BUT DIFFERENTIATED RESPONSIBILITIES 
------------------------------------------ 
 
¶11.  (SBU) The concept of CBDR is enshrined in the UNFCCC and 
the Kyoto Protocol.  While, on its face, it calls for 
responsibilities on the part of all countries, developing 
countries have interpreted CBDR as freeing them from having 
to take on any emissions reductions; they cite CBDR as 
dividing the world into only two categories ) so-called 
Annex I countries (based on a list in the UNFCCC) and 
non-Annex I countries.  Developing countries have 
successfully introduced this principle in a variety of other 
international environmental fora.  However, as CBDR is not 
consistent with the Chicago Convention principle of 
non-discrimination, ICAO has thus far satisfied developing 
country concerns by simply acknowledging the differing 
circumstances of developing countries.  At this Assembly, 
however, developing countries were asking for explicit 
application/relevance in the ICAO context of CBDR commitments 
under the Kyoto Protocol and the UNFCCC.  The U.S. has 
supported CBDR in the climate context, but was concerned 
about the implications it would have for ICAO,s 
standard-setting role in other areas. 
 
¶12.  (SBU) In the Friends group, China, - with sometime 
support from Nigeria, Brazil and Argentina - pushed for 
explicit language &operationalizing8 the concept of CBDR in 
the ICAO context.  Despite earlier arguments that their 
emissions trading proposal was based on the principle of 
non-discrimination, and thus must be applied equally to all 
carriers, the European states had seized on developing 
country interest in CBDR as a way to persuade developing 
countries to support the EU emissions trading scheme, and to 
move away from mutual consent.  Expressing their support for 
CBDR, EU states argued that the EU ETS was consistent with 
the concept, noting that the bulk of the financial and 
economic burden would be borne by developed countries anyway. 
 (Comment: By making this declaration, the EU clearly tried 
to drive a wedge between the U.S. and developing countries on 
support for the USG position on mutual consent.  By opening 
discussion on CBDR, the EU has allowed for CBDR to become 
part of the ICAO rhetoric. End Comment.)  Behind the scenes 
in meetings with various delegations and regional groups, the 
U.S. negotiating team countered these arguments by pointing 
out that mutual consent offered better legal protection than 
&de facto8 CBDR under the EU ETS, especially as major 
developing countries would already be included (Argentina, 
Brazil, China, India, etc.) and the EU could offer no 
guarantees that developing countries would not be affected at 
some future point in time, regardless of whether they were 
 
STATE 00142219  003 OF 004 
 
 
now.  This argument appeared to gain significant traction in 
the Friends group. 
 
¶13.  (U) The Friends group ultimately agreed to include 
preambular (not operational) language in sections of the 
draft Resolution dealing with cooperation with the United 
Nations, ICAO,s program of action on international aviation 
and climate change, and market-based measures.  The language 
acknowledges both ICAO,s principle of non-discrimination, 
and the provisions on CBDR under the UNFCCC and the Kyoto 
Protocol.  The Council, in conducting further studies and 
evaluating emissions trading, is requested to take into 
account potential implications for developed as well as 
developing countries. 
 
¶14.  (SBU) NOTE:  Future U.S. negotiators at ICAO should be 
aware that we read the preambular paragraph as referring to 
the relevance of CBDR under FCCC/Kyoto, not to the relevance 
of CBDR under ICAO.  On the contrary, the inclusion of the 
non-discrimination principle under the Chicago Convention 
right next to CBDR, was intended (1) to preserve our argument 
that CBDR applies under Kyoto/UNFCCC but is not consistent 
with the Chicago Convention if interpreted to require 
different standards for different states and (2) barring that 
argument, to isolate CBDR from being applied in other ICAO 
standard-setting areas such as safety and security.  U.S. 
negotiators should resist attempts to include any language in 
ICAO documentation that could be interpreted as confirming 
that CBDR is necessarily consistent with the Chicago 
Convention and should also resist calls for CBDR to be 
introduced in contexts other than the environment. END NOTE 
 
¶15. (U) In a nod to the European delegates, the Friends group 
also agreed to a proposal to request the ICAO Council to form 
a high level group (the &Group on International Aviation and 
Climate Change8) supported by ICAO,s Committee on Aviation 
Environmental Protection (CAEP), to develop a comprehensive 
plan on international aviation and climate change.  The plan 
includes a framework to achieve emissions reductions based on 
voluntary measures, technological advances, operational 
measures, positive economic incentives and market-based 
measures; and, the Council will convene a high level group in 
advance of the next Assembly (2010) to consider the findings. 
 The group will consider many issues, including the possible 
establishment of a global aspirational goal for energy 
efficiency in the aviation sector. 
 
EXECUTIVE COMMITTEE SUPPORTS MUTUAL CONSENT BUT EU RESERVES 
--------------------------------------------- -------------- 
 
¶16.  (U) Despite significant progress on the rest of the 
texts, the Friends group was forced to forward the drafts 
back to the Executive Committee with bracketed language on 
GHG emission charges and emissions trading in Appendix L. 
During the Executive Committee discussion of draft Appendix 
L, numerous states from around the world including Barbados, 
Mauritius, Egypt, Nigeria, Brazil, China, Mexico, Canada, and 
Australia spoke up in support of removing the brackets around 
the language urging contracting states not to implement 
either GHG emission charges or an emissions trading system on 
other contracting states, aircraft except on the basis of 
mutual consent.  European delegations including Germany, 
France, Norway, the United Kingdom and the Netherlands 
expressed support for the opposite view.  Ultimately, the 
Chair of the Executive Committee concluded that a majority of 
states supported implementation of either GHG emission 
charges or emissions trading for aviation only on the basis 
of mutual agreement, and approved adoption of Appendix L on 
that basis. 
 
¶17. (U) The Portuguese delegation, representing the 27 states 
of the European Community, and other states of the European 
Civil Aviation Conference (ECAC) ) 42 states in total ) 
entered its formal reservation on the text of Appendix L, 
stating their view that the resolving clauses lacked legal 
foundation in the Chicago Convention and could not be used to 
diminish their rights.  They reserved the right to apply 
market-based measures such as those described in Appendix L 
to all operators of all states operating, to, from or within 
their territories. 
 
¶18. (U) Given the relatively tight ICAO budget passed by the 
Assembly for the triennium 2008-2010, the Secretary General 
addressed the Plenary with an appeal for the establishment of 
a new voluntary fund to support the environmental tasks being 
proposed.  Instead, the Assembly added text (clause 7) to the 
environmental resolution,s Appendix A which appeals in 
general terms for additional resources.  Clause 7 
specifically, "Invites States to continue their active 
support for ICAO's environment-related activities, and urges 
Contracting States to support activities not foreseen in the 
budget by providing a reasonable level of voluntary 
 
STATE 00142219  004 OF 004 
 
 
contributions." 
 
¶19. (U) The full Plenary adopted the texts of the Assembly 
Resolution on Environmental Protection with minor editorial 
changes. 
 
¶20. (SBU) COMMENT:  The end result represents a clear 
statement from the global aviation community that unilateral 
imposition of environmental measures on other states is 
contrary to the fundamental principles of ICAO, and that ICAO 
should retain its leadership role in developing standards and 
recommended practices for international civil aviation, 
including with respect to the environment.   It is 
disappointing that Europe remained unwilling to join 
consensus on this issue, especially as ICAO States had agreed 
to take up large parts of their proposal in the development 
of a solid plan to develop actions to address the issue of 
aviation and climate change. 
 
¶21. (SBU) The issues surrounding the use of market-based 
measures to deal with aviation GHG emissions are far from 
resolved.  They will resurface in the context of political 
discussions in the &high level group8 to be formed by the 
ICAO Council, and will likely be the subject of further 
negotiations within the air services context.  Given the 
strong political pressure within the EU to address aviation 
GHG emissions, we will need to continue to urge the European 
Union to engage with their aviation partners around the world 
to address aviation environmental challenges in a 
collaborative and concrete fashion. END COMMENT. 
RICE