DURBAN CLIMATE CHANGE CONFERENCE: Whatever fruits ripen out of the United Nation’s Climate Change Conference in Durban, a global aviation emissions agreement is unlikely to be among them.

Thus far, Durban has served as another forum for state representatives to air their grievances about the European Union’s pending application of its cap-and-trade system to non-EU airlines while avoiding any binding commitments to offset aviation’s carbon footprint.

The International Civil Aviation Organization (ICAO) – the UN’s official aviation organ – is attempting to leverage this international antipathy toward the EU initiative by calling for global collective action on aviation emissions.

But to what end?

Since the signing of the 1997 Kyoto Protocol to the UN Framework Convention on Climate Change ICAO has been tasked with devising a global response on this very issue. After more than a decade of working groups, conferences, and reports, the final result has been a series of hortatory resolutions on avoiding unilateralism and embracing multilateralism – resolutions the EU has been happy to ignore thus far.

Now that the ICAO sits on the precipice of losing its already withered control over the issue, the organisation believes that it can broker a multilateral regulatory framework for airline emissions no later than 2015. Unsurprisingly, details concerning this ambitious proposal are scarce, though a role for oversight and management by the World Bank is apparently being considered.

But talk in any language is cheap and the cacophony of voices in Durban reveals few points of convergence on how global emissions ought to be regulated within and beyond the aviation industry. Underdeveloped countries still insist on a “common but differentiated” approach whereby they are either explicitly exempted or, barring that, eased into any emissions reduction measures which may harm economic growth.

Rising economic superpowers – such as China and India – appear to want the same thing despite the fact they have taken center stage as leading emitters of greenhouse gases. Meanwhile, fully developed economies – such as the US and the EU – are expected to shoulder a disproportionate amount of the reduction burden. This is an unsavoury suggestion given the ongoing global economic downturn which has ravaged longstanding industries on both sides of the Atlantic.

So, how will the ICAO cut through these formidable policy differences? The short answer is: it can’t.

ICAO’s legitimacy rests on its ability to serve as a neutral forum for its 190 State parties to harmonise technical and safety standards for international aviation. In very limited circumstances the organisation can function as a quasi-dispute settlement forum, albeit one with flaccid enforcement powers.

What ICAO definitely lacks is the ability to strong-arm its membership into any regulatory initiative without their full consent.

Winning that consent, as is often the case at the international level, means structuring the deal so as to make every participant believe they are better off for the effort. (In the emerging international legal literature, this is referred to as the principle of “International Paretianism”.)

With respect to aviation emissions, ICAO would have to generate a regulatory structure which induces emissions reduction without inflicting (uncompensated) economic harm. China, for instance, is unlikely to enter a system which retards the expansion of its air transport sector without picking up gains in other areas. Such gains could include winning new foreign market access opportunities for its airlines.

The problem here is that ICAO has no authority over the trade-related aspects of aviation. The organisation’s ability to facilitate the requisite level of “side payments” necessary to bring otherwise ambivalent countries into any emissions reduction plan is weak at best, and nonexistent at worst.

None of this is to say that reducing aviation emissions is a hopeless task. The EU – one of the largest aviation markets in the world – is already committed to the task and an incremental approach, based on bilateral agreement, is not out of the question.

The comprehensive Air Transport Agreement signed by the US and EU in 2007 establishes a Joint Committee to examine a variety of regulatory matters, including the environment. If these two aeropolitical powers could come together to work out a mutually agreeable emissions reduction program it could have a powerful demonstration effect for other likeminded States to come together.

While such experiments in enhanced bilateralism will still have to overcome the Paretian hurdle – where all parties must believe, by their lights, to better off from the deal – this challenge will be far easier to meet at the State-to-State level than in a multilateral context.

In the case of ICAO efforts, diffuse and multifaceted interests will likely continue to ground negotiations on this politically contentious and ideologically charged issue.