DEFINING AND ADDRESSING TRANSBOUNDARY POLLUTION IN INTERNATIONAL LAW
This article has been written by Ms. A.Taibah Fathima, a 5th year BA.LLB student from Government Law College, Villupuram, Tamil Nadu
Abstract:
Addressing transnational pollution requires both international and domestic law. Transnational pollution is an international problem that demands and deserves the attention of international legal mechanisms such as treaties, agreements, arbitration, and international management and governance. At the same time, transnational pollution problems can often be addressed more effectively and efficiently through the domestic legal system. Legal control of domestic pollution seeks to achieve environmental protection, cost internalization, fairness, and equity. Legal control of transnational pollution shares these aims, with the additional goals of respecting state sovereignty and preserving relations between countries. These diverse and potentially conflicting goals are best served by harmonizing transnational pollution management and dispute resolution under international and domestic law. This Article seeks to provide pragmatic, feasible, and politically realistic solutions to transnational pollution by harmonizing international and domestic law. However, given the diversity in geography, domestic legal systems, and political realities that frame transnational pollution problems around the world, a specific pragmatic solution in one region may be useless or impossible in another region. Thus, this Article focuses on transnational pollution problems and harmonizing the relevant international and domestic laws of one transnational region, the United States Canada border, with the hope that it may provide lessons and potential models that will be valuable to policy makers and scholars elsewhere. Using the United States and Canada to explore this topic.
Introduction:
Transboundary pollution, defined as “pollution whose physical origin is situated wholly or in part within the area under the jurisdiction of one [state] and which has adverse effects, other than effects of a global nature, in the area under the jurisdiction of [another state],” is one of the oldest and most persistent problems in environmental law. While transboundary pollution problems can be found along political borders at any level of government, international transboundary pollution has proved particularly difficult to address. The challenge in creating and enforcing a transnational pollution control regime lies in harmonizing international and domestic law. Substantively, the principles and norms regarding transboundary pollution are well-established and compatible, if not identical, under international and domestic law. However, the mechanisms for effectuating transnational pollution principles through international and domestic law are very different, and the two approaches often resemble ships passing in the night, unaware of each other’s presence and the potential for both harmonious interaction and collision.
Second, transboundary pollution moves in both directions along the United States-Canada border in roughly equivalent proportions, with no clear “upstream” or “downwind” state. This is in part due to the physical setting of the major rivers and waterways shared by the two countries. Almost half of the waterways flow from the United States to Canada (and just over half flow from Canada to the United States), creating an almost perfect risk of reciprocity for transboundary water pollution. This reciprocal balance also exists with air pollution, according to a recent analysis of United States and Canadian pollution data in the Great Lakes region (the most heavily industrialized boundary region). According to data from Canada’s National Pollutant Release Inventory and the United States’ Toxics Release Inventory, in 2002, Canadian facilities released approximately forty-nine percent of the total air pollutants in the region, while U.S. facilities released approximately fifty-one percent.
The Evolution of Transboundary Pollution Principles Under Domestic Law:
The federalist system of the United States has given rise to numerous transboundary pollution disputes resolved through litigation before the United States Supreme Court. 7 In these cases,the Supreme Court is acting as an arbiter between sovereign states,not unlike an international court or arbitration panel. Over a century ago, in one of the Court’s earliest interstate environmental law decisions, it recognized the similarities between an interstate transboundary pollution dispute and an international transboundary pollution dispute, and the potential applicability of international law in resolving matters.
Numerous other commentators have provided a detailed discussion of the evolution of the United States Supreme Court’s transboundary pollution caselaw, and it is beyond the scope of this Article. However, a brief review of the two most prominent and significant series of cases, Missouri v. Illinois and Georgia v. Tennessee Copper Co. & Ducktown Sulphur, Copper & Iron Co. (Ltd.), provides a basic illustration of transboundary pollutionprinciples under domestic law.
The Evolution of Transboundary Pollution Principles Under International Law:
Discussions of international transboundary pollution law often begin with the Trail Smelter arbitration, since it was the first (and still only) adjudicative precedent from an international tribunal that directly addressed the substantive law of transboundary pollution. Before discussing the important ruling of the Trail Smelter arbitration, it is important to cover the prior international law developments that also shaped modern United States-Canada international transboundary pollution principles.
Transboundary Environmental Impact Assessment under Domestic and International Law:
Environmental impact assessment is a key component of almost every modem domestic environmental law regime, and transboundary environmental impact assessment is considered a basic element of international environmental law. The evolution of transboundary environmental impact assessment law is best viewed from two directions: as an extension of domestic environmental impact assessment laws, and as a procedural duty related to preventing transboundary pollution harms.’ This dual evolution creates an obvious opportunity for harmonizing domestic and international transboundary pollution law.
This brief section sets the stage by discussing the basic substantive principle of transboundary environmental impact assessment under both domestic and international law.Environmental impact assessment was one of the first innovations of modern environmental law. In 1969, the United States Congress passed the National Environmental Policy Act(“NEPA”)’ to ensure that agencies of the federal government consider the environmental effects of proposed actions. NEPA was designed to “promote environmentally sensitive governmental decision-making, without prescribing any substantive standards, and “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decision making process and the implementation of that decision.” The heart of NEPA is the requirement that a federal agency prepare an Environmental Impact Statement (“EIS”) whenever a proposed major federal action will significantly affect the quality of the human environment. While NEPA’s environmental impact assessment requirement is only procedural-it does not mandate a specific outcome, but only that potential harms are studied-it often results in better environmental protection.
Addressing Transnational Pollution under International Law:
Transnational pollution obviously poses international problems, and for over a century the United States and Canada have used a broad range of international law mechanisms to find solutions. The international legal mechanisms used by the United States and Canada to address transboundary pollution cover nearly the full spectrum of tools in the international legal system, including treaties, international adjudication, regional governance institutions, and soft law agreements. These efforts have produced valuable results, both in terms of the quality of the transnational environment, and in the continuing good relations between the two countries. However, a review of the international law mechanisms also serves to demonstrate the inherent limitations and weaknesses of international environmental law, especially the lack of enforcement rights for the citizens most directly affected by transnational pollution.
This Part begins with the foundation of international environmental law between the United States and Canada, the Boundary Waters Treaty of 1909.12′ As the treaty’s substantive legal standard for transboundary pollution is discussed in Part I, supra, this Part focuses on the binational governance and dispute resolution mechanisms created by the treaty, most notably the International Joint Commission. The International Joint Commission has been commended for its objective and scientific work, but has also been limited in its ultimate power and effectiveness.
Decisions of International Tribunals:
The Trail Smelter Arbitration;
Almost all discussions of international environmental law and liability take as their foundation the Trail Smelter arbitration, among the earliest expressions of the principle that a state has responsibility for environmental damage extending beyond its territorial limits. The Trail Smelter arbitral tribunal stated in dicta that, under principles of international law: “No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” This sic utere tuo concept has become the core rule of international transboundary pollution, and is often known (not entirely accurately) as the “Trail Smelter rule” or “Trail Smelter principle.”
The Corfu Channel Case;
The decision of the International Court of Justice in the Corfu Channel Case incorporated this general principle of limited territorial sovereignty, stating that it is “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.” This Corfu Channel principle provides a more authoritative and more generally applicable statement of the principle previously enunciated in the Trail Smelter arbitration.
The Lac Lanoux Arbitration;
The Trail Smelter addressed transboundary air pollution, and the Corfu Channel case adopted a limited territorial sovereignty rule in a holding dealing with military, rather than strictly environmental, dangers. The Lac Lanoux Arbitration involved a watercourse dispute: France proposed to divert the waters of the Carol, which flows across the border from France into Spain, in order to generate electricity. Water equal in quantity and quality would be returned to the Carol before it entered Spain. The arbitral UNESCO – EOLSS SAMPLE CHAPTERS INTERNATIONAL LAW AND INSTITUTIONS – Transboundary Environmental Harm and State Responsibility: Customary International Law – Aaron Schwabach Encyclopedia of Life Support Systems (EOLSS) tribunal stated: “According to the rules of good faith, the upstream state is under the obligation to take into consideration the various interests involved, to seek to give them every satisfaction compatible with the pursuit of its own interests, and to show that in this regard it is genuinely concerned to reconcile the interests of the other riparian State with its own.”
The Lac Lanoux tribunal added a new consideration: Along with this statement of limited territorial sovereignty came a complementary limit on territorial integrity: “On her side, Spain cannot invoke a right to insist on a development of Lake Lanoux based on the needs of Spanish agriculture. .Spain can only urge her interests in order to obtain, within the framework of the scheme decided upon by France, terms which reasonably safeguard them.”
Causes for transboundary pollution:
Transboundary pollution in international law arises from various causes, reflecting the complex nature of environmental challenges. First, industrial activities often disregard borders, releasing pollutants that can traverse boundaries through air or water currents. Inadequate regulation or enforcement mechanisms within individual countries exacerbate this issue.
Second, globalization contributes to transboundary pollution as multinational corporations operate across borders, sometimes exploiting lax environmental standards in one jurisdiction to the detriment of neighboring areas. This highlights the need for coordinated international efforts to address environmental impacts.
Third, natural disasters, such as wildfires and oil spills, can lead to transboundary pollution when they affect ecosystems that span multiple countries. Climate change further amplifies these risks, impacting weather patterns and exacerbating environmental issues on a global scale.
Lastly, differing regulatory standards and enforcement capacities among nations can create loopholes for pollution, necessitating harmonized international agreements. The development of robust legal frameworks, such as treaties and conventions, becomes crucial to foster cooperation and hold parties accountable for transboundary pollution. International collaboration and shared responsibility are key elements in addressing the intricate web of factors contributing to this complex environmental challenge.
Conclusion:
In some areas and between some states liability for transboundary environmental harm has been specifically delimited by treaties or other international instruments. For the most part, however, the law of transboundary environmental harm is still customary UNESCO – EOLSS SAMPLE CHAPTERS INTERNATIONAL LAW AND INSTITUTIONS – Transboundary Environmental Harm and State Responsibility: Customary International Law – Aaron Schwabach ©Encyclopedia of Life Support Systems (EOLSS) international law. While customary international law has long recognized the right of a state to exploit natural resources within its territory, limits are imposed on that right when the exploitation causes harm to the territory of a neighboring state. The precise extent of these limits remains somewhat unclear and is subject to innumerable local variations as a result of bilateral or multilateral regional practice. Customary international law, in contrast to conventional international law, is derived from the practice of states as international actors rather than from explicit written agreements. Customary international law may thus be described as a set of normative expectations developed through observation of the actions and reactions of states. A commonly used, although not necessarily comprehensive, list of the sources of international law can be found in Article 38(1) of the Statute of the International Court of Justice.
Reference:
https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1320&context=mjlr
https://www.eolss.net/sample-chapters/c14/e1-36-02-02.pdf
An article titled TRANSBOUNDARY ENVIRONMENTAL HARM AND STATE RESPONSIBILITY: CUSTOMARY INTERNATIONAL LAW written by Aaron Schwabach Thomas Jefferson School of Law, San Diego, CA, USA
An article titled TRANSBOUNDARY POLLUTION: HARMONIZING INTERNATIONAL AND DOMESTIC LAW written by Noah D. Hall,Wayne State University Law School and published in University of Michigan Journal of Law Reform ,volume 40