Trans-national River Issues

The Australian bushfires and the Indian floods, both of 2019, are just a glimpse into some disproportionate consequences of the global climate crisis that is upon us.

Current international law systems have proven to be limited as a tool for securing justice to those marginalised by the international order.

Trusteeship as a model of governance

Fellow Board member, Prof Klaus Bosselmann, regarded as a world authority on the subject, has observed that the concept of Earth trusteeship concerns “the legal obligation of States to act as trustees to manage ecological systems for the benefit of nature and humanity”.

Earth trusteeship, he says, transform our understanding of state sovereignty.  “At present States do not have any legal obligations towards the global environment beyond those they accept/or reject by their own consent, determined by national self-interest.”  In fact, States should be regarded formally as ‘trustees of the Earth’, with ‘fundamental fiduciary obligations’ that they cannot deny or trade-off against self-interest.

It is my view that the concept has potential application to one of the planet’s major ‘shared rivers’.

The Mekong river system provides a platform to discover the potential of trusteeship governance. It is a potential model – a tool to bring an otherwise non-cohesive group of states into cooperation before more serious consequences of the climate crisis becomes manifest.

The differing political, socio-economic and environmental threats posed by global trade from a trans-boundary river that flows through six developing countries requires sustainable management of resources and development that is underpinned by a framework of shared values.

The concept of shared resource management is at the core of trusteeship governance. We in the Global Studies Centre are committed to researching three potential trusteeship governance models for the Mekong river system.

The public trust doctrine is the principle that a sovereign state (or a delegated authority) holds certain natural resources in trust for the public which is the beneficiary, regardless of private property rights. The trustee owes a fiduciary duty to the beneficiary, and can be held accountable through judicial protection if in breach of duty.

The concepts of common heritage of mankind and the public trust doctrine dominate the legal discourse on trusteeship governance for environmental priorities.

Whanganui River

Although widely recognized as necessary, it was 21 years later in New Zealand that the Te Awa Tupua (Whanganui River Claims Settlement) Bill would be the first legislation to grant a river legal ‘personhood’ with all the corresponding rights, duties and liabilities of a living person.  India’s High Court would soon follow, granting the same rights to the Ganges and its tributary Yamuna. This was a critical step forward in environmental governance after three decades of regulation that failed to clean up the river.

Mekong River

The model will be studied as a potential solution for the Mekong, alongside the potential of applying the principles of the Tonle Sap UNESCO biosphere reserve to the rest of the Mekong, and finally the compatibility of the MA and the UNWC together.

The Mekong’s trans-boundary river system originates in the Tibetan Plateau, runs through China’s Yunnan Province, Myanmar, Thailand, Lao PDR, Cambodia and drains into the South China Sea through Vietnam.

A multilateral non-binding agreement between Thailand, Lao PDR, Cambodia and Vietnam (collectively referred to as the Lower Mekong Basin, LMB states) of which China and Myanmar are dialogue partners – the Mekong Agreement (MA) 1995 – currently governs the affairs of the system.

The MA purports to coordinate the activities of the Mekong countries for the sustainable development, management and utilization of the river’s water resources. Its objectives are overseen by the Mekong River Commission (MRC) which has wide-ranging duties assigned by the MA leaving much scope for the development of protocols by the MRC and its bodies.

The UN Convention on the Law of Non-navigational Uses of International Watercourses (UNWC) 2014 which encapsulates customary international law on the use of rivers, forms, along with the MA, the complete legal regime of the river system.

The UNWC codifies the equitable values of “utilization, development, conservation, management and protection of international watercourses and the promotion of the optimal and sustainable use thereof for present and future generations”, while taking into account the special needs of developing countries.

As it is intended to be a flexible framework within which management can be delivered within the context of the relevant basin, the UNWC can be used to strengthen the MA by holding signatories accountable to the norms of customary international law.

This is critical for the future of the Mekong, as the MA does not detail certain procedures of international water law and, although it is grounded in the principle of sustainable development, it is ambiguous, discretionary and, more importantly, non-binding.

Growing competition over water resources, dissonance in political and economic realities of the Mekong countries, and the need for greater international cooperation, all create a window of opportunity for environmental governance.  We may be able to use the UNWC and the MA as a legal backdrop.

Stakeholders from public organizations have placed their focus on the unsustainability of hydropower dams, stressing the loss of productivity, vital sediments, nutrients and geo-morphology of the river. The reduction in water quality of the wetlands means disruption of the land and aquatic ecosystem. The resulting change in the characteristics of the river has increased poverty and has prompted an exodus from the area.

A research challenge

For the future of research, this means that an intersectional analysis of the environmental and economic impacts of dam construction, of poverty and of political strategy is crucial.

These analyses and case studies from New Zealand itself and the Danube River System in Europe may help pave a model for the sustainable trusteeship governance of the Mekong river.

The Centre will continue to work on this model in the years to come.

Global Peacemaking or Peacebuilding?

The weak-kneed efforts at strengthening global security in recent decades are desperately in need of a reset.

Nowhere is this more palpably obvious than in Afghanistan, along of course with Syria, Yemen and Libya. But let me focus on Afghanistan, which is my country of origin.

Shortcomings of the latest peace deal

When the Taliban peace agreement was signed in February 2020, it was met with skepticism the world over, not least and most importantly from the Afghan people themselves. But the recent bombing of a maternity ward at a Kabul hospital shows just how much work there is left to do.

The US, as leading ‘peacemaker’ for Afghanistan, must not let the country fall into the quagmire of another civil war. Two decades after the ‘war on terror’ was first launched, the US must now take steps to ensure that the next twenty years are more fruitful than the last.

There have, in fact, been significant social and cultural gains throughout the country – in education, civil liberties, media freedoms, and in health. But in spite of this progress, both the Taliban and the Government led by President Ghani have failed to make significant progress in their dialogue.

This is largely due to the Taliban demand for the release of 5,000 prisoners, a point that was not agreed to by the Ghani administration before the signing of the deal. Progress is hampered by an ongoing impasse between the President and his former Chief Executive, Abdullah Abdullah, who claims that the 2019 elections were fraudulent and who wants a larger role in the peace talks, even though he hasn’t outlined what this would be.

Even more troubling is the continued presence of the Islamic State of Khorasan Province (ISKP), an ISIS affiliate that exercises control over some areas in the provincial south.

A genuine national conference

In order to jump-start the lagging intra-Afghan talks, one solution might be to convene an international conference that brings together all of the factions at one table, including Ghani, Abdullah and the Taliban leadership, as well as civil society and minority groups.

This would be similar to the original Bonn agreement of 2001, but with Afghans themselves leading the discussions. One of the key concerns regarding the Taliban talks is that large sectors of Afghan society feel they are not being represented in such pivotal conversations.

This is partly due to the Ghani-Abdullah impasse, but it is also largely due to the secretive nature of the talks. Afghans wish to put any agreement to a nation-wide referendum. A nationwide conference will be an effective mid-point to allay these concerns.  This may be met with skepticism at home, but it would highlight US commitment to the struggle.

The conference would need to be held in Afghanistan, and be largely led by the people of Afghanistan. The US could signal its support by facilitating the conference and offering logistical support but otherwise remaining in the background. This requires a delicate balancing act for the Department of State but with adequate appointments in place, it is not impossible.

Potential of multilateral engagement

Also key to Afghan stability is the role of India and Pakistan. Both countries have strong vested interests in Afghanistan. Pakistan does not wish to be sandwiched between India and a pro-New Delhi government in Kabul. Similarly, India sees the Afghan-Pakistan borderlands as a national security threat from where outfits such as the Lashkar-e-Taibah continue to operate.

Both countries are also intertwined in water wars, with India pledging support for the construction and refurbishment of hydroelectric dams in Afghanistan – a project which Pakistan sees as national security concern given the downstream impacts on the sensitive agricultural sector. Bringing these countries to the table will be a bigger challenge, but Afghanistan must signal to New Delhi and Islamabad that they are crucial to regional security.

As well as inviting a delegation to the aforementioned conference, it would be wise to establish a quadrilateral forum involving Kabul, New Delhi, Islamabad and Washington aimed at resolving disputes. This could begin with a resolution to fix the water wars, or to coordinate any other cross-border issues, such as migration and refugee flows.

A question of political will – at a difficult time

The situation in Afghanistan demands a continued engagement from successive American administrations. Although there is no possibility of American military involvement, the US would be wise to pursue other avenues of engagement, as outlined above.

Two decades after the war on terror was first launched, the US should take the steps now to ensure the next twenty years are more fruitful than the last.

The art of strengthening global peace and security is elusive, and in current times seems to be beyond the reach of the major powers.

Time for regional and sub-regional leading countries to contribute, however, complex this becomes.

Aviation and Global Sustainability, Pt II

Aviation is a force for good.  It broadens the mind. It connects people with new cultures, experiences, places and opportunities; and it underpins the global economy.

Yet, its dependency on fossil fuel is harmful.  What, then, to do?

Aviation currently contributes around 3% of global carbon emissions and, over the past decade, was the fastest-rising source of emissions.[1]

The impact of COVID-19 on the aviation industry is potentially shading some of the measures that should, in any event, be considered for a sustainable recovery.  Yet concern is mounting over the business cost, and devastating environmental impact, of losing sight of effective action towards climate change.

Restarting aviation will play a key role in the recovery of the global economy.  More broadly, climate change remains the greatest long-term challenge we face.

The convergence of these crises – the pandemic alongside climate instability – offers an unprecedented opportunity to ‘build back better’. Decisions taken now over the direction of, and investment in, the industry will ultimately impact the resilience of the sector, and thus aviation’s future viability.[2]

Pre-COVID shift

Even before the pandemic, the airline industry was facing increased public pressure with ‘the Greta effect’ of flygskam (flight shame), as well as the school strike-movement, and direct action by the Extinction Rebellion group.

This was not confined to the growing sphere of social awareness. Corporate environmental responsibility was also gently testing the waters: sustainability policies, carbon audits, carbon-accreditation schemes, and declining number of business flights, were all obvious targets for emission savings.

The joined-up issue of aviation and climate has made its way through to the UK Court of Appeal (27 Feb. ’20) which upheld the High Court’s decision to block the expansion of Heathrow Airport.  The judicial decision, of course, was on a point of law: whether the designation of the ‘Airports National Policy Statement’ (new runway capacity and infrastructure at airports) was unlawful by reason of a failure to take into account the Government’s commitment to the Paris Agreement on climate change.

The Paris Agreement ought to have been taken into account by the Secretary of State in the preparation of the ANPS. An explanation was given as to how it was taken into account, but in effect it was judged not, and so the runway expansion application was denied.[3] The case awakened judicial conversation on how to address climate responsibility.

COVID shift

The impact of COVID-19 may be to further highlight the tension between current aviation fossil-dependency and the global climate crisis.

For one, there may be a generational shift in which consumers are prioritising travel following COVID-19. We know the virus poses a greater risk and higher mortality rates for those over 70. There is speculation that low demand, along with the psychological after-effects of confinement may be leading consumers to modify their behaviour, particularly those facing higher health risks. It may be that there is a generation of people that do not return to travel in the way they did before COVID-19.  When considering the expectations of future passengers, moreover, carbon reduction is known to be a priority.

Another shift has been the rise of Zoom and other electronic means of communication. Many businesses, having now hosted and attended meetings online, view such virtual events as a convenient method for saving money and carbon. Where businesses previously had the ‘ESCR’ vision and stated intentions, their employees are now well-practised in the zero-carbon alternative.

Yet alongside this, aviation has a history of not only rebounding from crises quickly but surpassing previous demand levels. It is difficult to know what will happen with passenger demand this time. But if New Zealand’s experience is any indication, the return to Level 2, re-generating regional movement, resulted in strong early growth of domestic passenger numbers.

Growing discourse

COVID-19 has accelerated a growing discourse challenging the status quo. Discussion increasingly focuses on the question: how do we rebuild in a way that benefits the economy, the environment, and improves equality?

A recent report from the Oxford Review of Economic Policy nicely captures post-COVID-19 reconsiderations;

“Public support for action on climate change increased to a peak prior to the pandemic; government and corporate action was also gathering momentum. COVID-19 has clearly slowed this momentum, not least in delaying the international conference on climate (COP26) from 2020 to 2021. However, the momentum could find new impetus if, humbled by the ability of ‘natural’ forces to shock the global economy, humans recalibrate our sense of omnipotence. Furthermore, opinion polls in many countries show that people are noticing the clean air, uncongested roads, the return of birdsong and wildlife, and are asking whether ‘normal’ was good enough; could we not ‘build back better’? The shape of COVID-19 fiscal recovery packages put in place in the coming months, once lockdowns are eased, will have a significant impact on whether globally agreed climate goals are met.”[4]

Whether these opportunities are realised then becomes a political question.

Political considerations

To what extent is the issue a tension between the economy and the environment?  Consider, at the national level, the approach taken during COVID-19 in relation to public health vs the economy. For those countries showing signs of relative success, they approached health and the economy as interdependent, not competing concepts in a zero-sum framework. In short, we need healthy people to have a healthy economy. The same can be said for the environment.

For those governments that accept the premise of an interdependent environment and economy, the debate revolves around the best methodology for supporting our economy and environment – whether it be government-led or market-led solutions.

In New Zealand, the current Government believes the way to effectively regulate emissions is at the national level. This is supported by the work of the Climate Commission, the Ministry for the Environment and the Environmental Protection Authority, all of these supported by a National Emissions Budget and a National Emissions Reduction Plan that together address New Zealand’s UNFCCC obligations.

In terms of government stimulus packages, this would ideally mean investing in projects with high potential for both economic recovery and climate impact, the requirement being to satisfy both boxes (i.e. clean physical infrastructure, building efficient retrofits, investment in education/ training, natural capital investment, and clean research and development).[5]

The alternative approach is to allow market-based solutions to solve the climate crisis and rely on the aviation industry to be wholly responsible for developing technology-based solutions.  At a time when the industry is facing around 90% revenue loss, this is simply implausible.

Conclusion

The aviation sector is at a crossroad, and the pathway chosen needs to be modern, progressive, and climate-conscious.

Continuing as it was before the health pandemic will, in light of the climate crisis, be neither possible nor acceptable. The future for global aviation depends upon it being an active participant in climate action.  The good news is that there is a sectoral awareness of this.

There is no future for an industry that does not address fossil-fuel dependency and, despite the global pandemic, it is imperative that the aviation sector does not lose sight of its carbon-reduction goals.

Yet the sector cannot do it alone. International climate frameworks addressing aviation will need to back the ambitious options, and governments will need to include environmental strings for all sector loans or bail-outs.

Finally, and perhaps above all, individual consumers will need to accept, if they wish to fly, that they should be paying the true cost of flying – which must include finding a way out of fossil-fuel dependency.

 

Footnotes:

[1] Watts, J. ‘Something in the Air: Could COVID-19 crisis be the catalyst for greening our airlines?’, The Guardian Weekly, 22 May 2020, https://www.theguardian.com/world/2020/may/17/is-covid-19-crisis-the-catalyst-for-the-greening-of-worlds-airlines

[2] ACI Europe Working Paper – “Off the Ground”; Report of the WS1 – Sustainability – Climate Change

[3] UK Court of Appeal on 27 Feb 2020 https://www.judiciary.uk/wp-content/uploads/2020/02/Heathrow-summary-of-judgments-26-February-2020-online-version.pdf

[4] Hepburn, C; O’Callaghan, B; Stern. N; Stiglitz, J; and Zenghelis, D. (2020), ‘Will C-19 fiscal recovery packages accelerate or retard progress on Climate Change?, Oxford Review of Economic Policy.

[5] Hepburn, C; O’Callaghan, B; Stern. N; Stiglitz, J; and Zenghelis, D. (2020), ‘Will C-19 fiscal recovery packages accelerate or retard progress on Climate Change?, Oxford Review of Economic Policy.

Aviation and Global Sustainability, Pt I

International aviation has landed – abruptly.

The global COVID-19 pandemic has seen closed borders, on-going travel restrictions, decreasing passenger demand, airline lay-offs and bankruptcy. It is undoubtedly the biggest challenge the aviation industry has faced, to date.

Yet this is not the greatest challenge the industry will face.  COVID-19 has acted as a magnifying glass, bringing into focus vulnerabilities within the sector, most notably how aviation will respond to the global climate crises. There is always a lag between necessary technological advancements and the capacity to see these through.  Right now, they seem to be increasingly at odds.

So what future does aviation have in a post-COVID 19 world?  In this first of two parts, I discuss the international framework designed to assist aviation with sector emissions reduction, and how COVID-19 has challenged this.

ICAO climate goals

The UN Framework Convention on Climate Change (UNFCCC) sets out the current science and collective responsibilities for global greenhouse gas emissions.  The UN specialised agency for aviation, the International Civil Aviation Organisation (ICAO), guides the aviation sector towards a consensus on standards and recommended practice to address its responsibility for 3% of global emissions.

To that end, ICAO introduced, in 2020, two principal goals;

  • improve fuel efficiency annually by 2% from 2010 on; and
  • achieve carbon neutral growth from 2020.

Carbon neutrality is not an ambitious goal, but a realistic one – the intention being to reduce emissions and improve efficiencies to the greatest extent possible, then off-set any remaining emissions.  While off-setting can be viewed as a ‘band-aid solution’ for aviation, it is necessary to buy time while fossil-free technology catches up.

To achieve carbon-neutral growth, the ‘four-pillar strategy’ was introduced, mandating operational improvements, aircraft technology improvements, sustainable aviation fuels, and market-based measures in order to oversee off-setting requirements for international flights. The graph below demonstrates the ICAO strategy – pre-COVID-19.

Figure 1 ICAO ‘four pillars’ for reducing International Aviation net carbon emissions

Operational improvements

Operational improvements are the industry’s carbon reduction ‘low hanging fruit’. This includes introduction of ground power for airlines – where an aircraft can plug in to electricity, ideally generated from renewable sources, while parked on the ground, rather than burn jet fuel in their auxiliary power unit.

Likewise, improvements in air traffic management systems, such as New Zealand’s ‘New Southern Skies’ initiative, allows planes to take off and land with minimal waiting time, resulting in further emission reduction.

As airlines are encouraged back, and contracts are renegotiated between airports and airlines, there is an opportunity to mandate greater adoption of emission-saving technology. And it should be an easy sell – such operational improvements present both environmental benefits and cost savings.   For example:

If an A320 is plugged in to ground-power for 5 hours per day, over 365 days of the year:

  • The cost = US $6,000 p.a., compared to the cost of Jet A1 fuel US $130,000 p.a. 

Result:

  • Total annual cost savings = US $124,000
  • Total annual emission saving = 730 tonnes CO2-e p.a.

Aircraft Technology

The aircraft technology pillar develops steps to create more efficient aircraft operations, with the end-goal of developing electric aviation that is no longer dependent on fossil fuel.

Compared to aircraft of the 1960s, aircraft types today demonstrate an 80% efficiency improvement. Airlines have made progress in reducing emissions through maintaining a fuel-efficient fleet, the fitting of ‘sharklets’, improving approach pathways and departure climb profiles, and reducing aircraft weight.[1]  But aircraft fuel-efficiency gains are plateauing[2], and the goal now must be to move beyond fossil fuel by introducing climate-friendly technology.

It is estimated that electric aviation technology would be available to the domestic market in the 2030s, with long-haul electric technology still much further afield. Pre-COVID-19, responsibility for developing low-carbon aviation technology sat with the aeroplane and engine manufacturers, but it is difficult to see how that will play out now.

So there is considerable risk that electric aviation development may be deferred. If the aviation sector is at risk of falling behind with critical climate dependent innovations, and carbon emissions from long-haul flights no longer palatable, it is likely small island nations (that don’t have cross-border rail alternatives) will bear the brunt of disconnection.

Sustainable aviation fuels

Sustainable aviation fuels (SAF) generate lower carbon emissions than conventional aviation kerosene – from production to consumption. These fuels function in the same way as traditional jet fuel, so they do not require significant changes to aircraft or infrastructure.  SAF will slow carbon emissions in the short- to medium-term, as new technologies (such as electric or hydrogen) are developed.

Without ready access to an approved SAF, there are limited future carbon reduction opportunities available. If we considered Air New Zealand’s domestic flights (take-off and landing within New Zealand) in FY/2019, they produced a total 556,404 tonnes CO2-e. Allowing a blend mix of up to 50% SAF with fossil jet fuel over a year ANZ can reduce those emissions by 214,215 tonnes CO2-e.[3]

The COVID-19 global lockdown effect on the price of oil has resulted in record lows (minus US $40 per barrel).

This may have an impact on the development of SAF, as feasibility studies demonstrate a dependence on rising oil prices to make their business cases stack up. Germany, France and the UK have flagged the development of SAF as an industry for critical growth as part of their COVID-19 recovery strategies.

Market-based measures

The Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) has been developed as a single global market-based measure, to make up the residual emissions gap after operational, aviation technology and sustainable fuel improvements are made.

CORSIA addresses the increase in total CO2 emissions from international aviation above 2019/2020 baseline data.  Noting domestic aviation emissions fall within the responsibility of national emissions reduction frameworks (i.e. the implementation side of the UNFCCC Nationally Determined Contributions).

Under CORSIA, airlines will be required to buy carbon offsets to compensate for their growth in CO2 emissions from 2021 onwards. Participation until 2026 was ‘opt in’ at nation-state level, including New Zealand and the majority of OECD countries[4], but not China.  From 2026 onwards, CORSIA then becomes compulsory, with the exception of very small island nations such as our Pacific neighbours.

Following the COVID-19 outbreak and subsequent grounding of international aviation, the inclusion of 2019/2020 emissions as baseline data is now being challenged by industry group ‘International Air Transport Association’ (IATA), in favour of using 2019 data alone. In terms of climate, the use of 2019 data alone sits alongside a return to business-as-usual behaviour. This may risk stranding investments in emission reductions and undermining investor confidence in aviation’s commitment to a low carbon future, including sustainable aviation fuels.[5]

The inclusion of 2020 data would be a game-changer for aviation’s carbon footprint, albeit an extremely challenging one for the airlines. The inclusion of the 2020 anomaly within baseline data would require either material reduction in sector emissions or paying the price for carbon-growth, effective immediately.

Conclusion

Before the ‘global grounding’, international aviation growth was pushing up against global emission reduction goals, which makes the decisions being made now even more crucial to the future of the industry – and the planet. Airlines, airports, government bail-out conditions, ICAO goals, and the CORSIA baseline will all collectively determine whether the aviation sector framework is future fit-for-purpose in a climate conscious world.

Beyond the international framework, we also have a changing global mindset to consider – a COVID-19 induced review of the way we live and interact on our finite planet.  More on this in Pt II.

Footnotes:

[1] Scion, New Zealand Biofuels Roadmap Summary Report: https://www.scionresearch.com/__data/assets/pdf_file/0005/63293/Biofuels_summary_report.pdf

[2]Green Air, ‘New aircraft fuel efficiency improvements return to historical average but lag ICAO fuel burn goals, finds ICCT Report (18 Sept 2015), https://www.greenaironline.com/news.php?viewStory=2130

[3] Scion, New Zealand Biofuels Roadmap Summary Report: https://www.scionresearch.com/__data/assets/pdf_file/0005/63293/Biofuels_summary_report.pdf

[4] Organisation for Economic Co-operation and Development (OECD). Commonly used in place of the term ‘developed’ nations, to indicate nations with relatively well developed economies.

[5] EDF, ‘Covid-19, International Aviation and Climate Change: How Airlines’ Proposed Re-Write of International Civil Aviation Organisation Rules would Undermine the Carbon Offsetting and Reduction Schedule for International Aviation, (May 2020), https://www.edf.org/sites/default/files/documents/Impact_of_COVID_on_International_Aviation_Analysis.pdf