Atmospheric Pollution

Perhaps the earliest perceived formof pollution relates to the pollution of the air. The burning of fossil fuels releases into the atmosphere sulphur dioxide and nitrogen oxides which change into acids and are carried by natural elements and fall as rain or snowor solid particles. Such acids have the effect of killing living creatures in lakes and streams and of damaging soils and forests. While the airspace above the territorial domain of a state forms part of that state, the imprecise notion of the atmosphere would combine elements of this territorial sovereignty with areas not so defined. The legal characterisation of the atmosphere, therefore, is confused and uncertain, but one attractive possibility is to refer to it as a shared resource or area of common concern.

The question of howone defines the term‘pollution’ has been addressed in several international instruments. In a Recommendation adopted in 1974 by the Organisation for Economic Co-operation and Development, pollution is broadly defined as ‘the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects of such a nature as to endanger human health, harmliving resources and ecosystems, and impair or interferewith amenities and other legitimate uses of the environment’ This definition was substantially reproduced in the Geneva Convention on Long-Range Transboundary Air Pollution, 1979 and in theMontreal Rules of International Law Applicable to Transfrontier Pollution adopted by the International Law Association in 1982. Several points ought to be noted at this stage. First, actual damage must have been caused. Pollution likely to result as a consequence of certain activities is not included. Secondly, the harm caused must be of a certain level of intensity, and thirdly, the question of interference with legitimate uses of the environment requires further investigation.

The core obligation in customary international law with regard to atmospheric pollution was laid down in the Trail Smelter case, which provided that no state had 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 state or to persons or property therein, where the case was of serious consequence and the injury established by clear and convincing evidence.

In 1979, on the initiative of the Scandinavian countries and under the auspices of the UN Economic Commission for Europe, the Geneva Convention on Long-Range Transboundary Air Pollution was signed. The definition ofpollution is reasonably broad, while article 1(b)defines long-range transboundary air pollution as air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one state and which has adverse effects in the area under the jurisdiction of another state at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.

The obligations undertaken under the Convention, however, are modest. States ‘shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution, including long-range transboundary air pollution’. The question of state liability for damage resulting from such pollution is not addressed. The Convention provides that states are to develop policies and strategies by means of exchanges of information and consultation and to exchange information to combat generally the discharge of air pollutants. Consultations are to be held upon request at an early stage between contracting parties actually affected by or exposed to a significant risk of long-range transboundary air pollution and contracting parties within which and subject to whose jurisdiction a significant contribution to such pollution originates or could originate, in connection with activities carried on or contemplated therein.

The parties also undertook to develop the existing ‘Co-operative programmefor the monitoring and evaluation of the long-range transmission of air pollutants in Europe’ (EMEP) and in 1984 a Protocol was adopted dealing with the long-term financing of the project. Further Protocols to the Convention have been adopted. In 1985, the Helsinki Protocol was signed, dealing with the reduction of sulphur emissions or their transboundary fluxes by at least 30 per cent as soon as possible and at the latest by 1993, using 1980 levels as the basis for the calculation of reductions. This Protocol requires parties to report annually to the Executive Body of the Convention.The Sophia Protocol was adopted in 1988 and concerned the control of emissions of nitrogen oxides or their transboundary fluxes. Under this Protocol the contracting parties undertook to reduce their national annual emissions of nitrogen oxides or their transboundary fluxes so that by the end of 1994 these would not exceed those of 1987. Negotiations for further reductions in national annual emissions were provided for, as was the exchange of technology in relevant areas and of information. In 1991, the Protocol concerning the control of emissions of volatile organic compounds and their transboundary fluxes was adopted.

Specific targets and timetables are established.However, the Protocol provides for a choice of at least three ways to meet the requirements, to be determined by the parties upon signature and dependent upon the level of volatile organic compounds emissions. In 1994, the Oslo Protocol on Further Reduction of Sulphur Emissions was adopted, specifying sulphur emission ceilings for parties for the years 2000, 2005 and 2010, and accompanied by a reporting requirement to the Executive Body on a periodic basis. An Implementation Committee was provided for in order to review the implementation of the Protocol and compliance by the parties with their obligations.166 In 1998 two further protocols were concluded, one on persistent organic pollutants and the other on heavy metals. A Protocol of 1999 is intended to abate acidification, eutrophication and ground-level ozone. In 1997 a revised Implementation Committee was established and this has the responsibility to review compliance with all the Protocols of the Convention under a common procedure. It considers questions of non-compliance with a view to finding a ‘constructive solution’ and reports to the Executive Board.

In 2001, the Stockholm Convention on Persistent Organic Pollutants was signed. The Convention provides for the control of the production, trade in, disposal and use of twelve named persistent organic pollutants (although there is a health exception temporarily for DDT). There is a procedure to add other such pollutants to the list and an interim financial mechanism with the Global Environmental Facility (GEF) was established as the principal entity to help developing countries. InMay 2005, a conference of states parties established a subsidiary body, the Persistent Organic Pollutants Review Committee, in order to assist in implementation activities.

In 1986 a Protocol to the Paris Convention for the Prevention of Marine Pollution from Land-Based Sources extended that agreement to atmospheric emissions of pollutants. Article 212 of the Law of the Sea Convention, 1982 requires states to adopt laws and regulations to prevent, reduce and control atmospheric pollution of the marine environment, although no specific standards are set.