Abstract This article addresses how air services agreements (ASAs) are starting to be used to regulate carbon emissions from international aviation. International aviation is regulated by a combination of multilateral aviation-specific conventions and bilateral ASAs. The Chicago Convention of 1944 and annexes that contain the Standards and Recommended Practices (SARPs) are the primary multilateral sources of international aviation law. These SARPs mainly cover the technical requirements of aviation safety with the notable exception of Annex 16: Environmental Protection. With the goal of reducing the climate impact of aviation-related carbon emissions, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA) was adopted as SARPs. However, the legal status of SARPs remains controversial. Since they are not an integral part of the Chicago Convention, they do not have the same legal force as the convention itself. Although the International Civil Aviation Organization (ICAO) adopts and manages SARPs, it lacks a way to enforce compliance. Despite this limitation, however, bilateral ASAs give SARPs legal force. ASAs determine the level of aviation market access between states, and most ASAs permit the imposition of operational bans in case of non-compliance with SARPs on safety standards. From exclusively dealing with the exchange of commercial rights for international air transport, a new generation of ASAs has started to cover environmental protection. Based on a review of 620 publicly available ASAs, this article assesses how SARPs on aviation safety are effectively enforced by ASAs and anticipates how SARPs on carbon emissions will gradually follow suit.
Jae Woon Lee (Wed,) studied this question.