Transboundary Pollution

NATIONAL LAW INSTITUTE UNIVERSITY

SEMINAR PROJECT
On

Trans-Boundary Pollution (Contempory Context)

International Environment Law
XIII TRIMESTER

Submitted By
Shubham Borkar
2012BALLB43

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Transboundary Pollution
Acknowledgments :I would like to express my sincere thanks to my International Environment Law teacher for his
valuable suggestions & guidance.
The completion of this project would not have been possible without the magnificent library that
has been provided to the students in the campus itself. Equally important is the wifi connectivity
which runs in the hostels, enabling the students to access the internet at any point of time.
At last, I am again grateful to my energy law teacher Prof Rajeev Khare for allowing me to make
a project on International Environment Law which has resulted in an increase of my knowledge
of this topic.

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Table of Contents
Introduction.................................................................................................................... 3
Transboundary Air Pollution............................................................................................... 4
Different Scenario in Europe and Asia...................................................................................4
Future China-Japan Cooperation....................................................................................... 6
In consideration of this situation, What could be the best scenario..............................................6
Artic Region................................................................................................................... 7
Greenland...................................................................................................................... 8
US-Mexico Transboundary Pollution.................................................................................. 10
U.S. Emissions Drift into Canada....................................................................................... 10
Europe Takes Steps to Limit Transboundary Pollution..........................................................11
Transboundary Pollution Among China, Japan and South Korea.................................................11
Who Is to Blame for Northeast Asias Transboundary Air Pollution Problem..............................12
Principles of international Environment Law On Transboundary Pollution....................................14
Sic utere tuo ut alienum non laedas.................................................................................. 15
Environmental Information........................................................................................... 16
Liability and Compensation........................................................................................... 16
Precautionary Principle................................................................................................ 17
Environmental Impact Assessment..................................................................................17
Prior Information and Consultation..................................................................................18
The Effectiveness of Procedure...................................................................................... 18
State Responsibility..................................................................................................... 19
Bibliography............................................................................................................. 21

Introduction
The most common interpretation of transboundary pollution is that it is pollution not contained
by a single nation-state, but rather travels across national borders at varying rates. The concept of
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the global commons is important to an understanding of transboundary pollution. As both
population and production increase around the globe, the potential for pollution to spill from one
country to another increases. Transboundary pollution can take the form of contaminated water
or the deposition of airborne pollutants across national borders. Transboundary pollution can be
caused by catastrophic events such as the Chernobyl nuclear explosion. It can also be caused by
the creeping of industrial discharge that eventually has a measurable impact on adjacent
countries. It is possible that pollution can cross state lines within a country and would indeed be
referred to as transboundary pollution. This type of case is seldom held up as a serious policy
problem since national controls can be brought to bear on the responsible parties and problems
can be solved within national borders. It is good to understand how interstate environmental
problems might develop and to have knowledge as to those regulatory units of national
government that have jurisdiction.

Transboundary Air Pollution

It is a well-recognized scientific fact that air pollutants spread easily across borders. In the 1970s,
a transboundary air pollution event triggered severe acidification in ecosystems in Europe, which
led to the conclusion of the LRTAP (Convention on Long-Range Trans-boundary Air Pollution)
and some accompanying protocols by 50 nations and the European Union (EU).
In the meantime, Northeast Asian regions including Japan, China, and Korea have also
observed air pollutants crossing over borders from time to time. And Japan and Korea, the
countries most likely to be affected by air pollution because of their downwind locations, have
been thinking that the establishment of an international framework like the LRTAP would be an
ideal solution. The targeted substances for restriction have changed over time, first with sulfur
oxide (SOx) in the 1990s, yellow dust in the early 2000s, ozone (O3), a cause of photochemical
smog, in the late 2000s, and the most recently recognized problem of PM2.5 pollution.

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Different Scenario in Europe and Asia1
It has been very difficult to achieve international consensus on cross-border environmental issues
in recent years, so the outcome of the LRTAP in Europe is one of the rare successes. When
thinking of framework construction on the issue of transboundary air pollution in Asia, the
differences between Europe and Asia, as illustrated below, need to be analyzed logically.2
1.Europe and Asia have different geopolitical climates. In the EU, most serious problems were
occurring in the central-eastern European countries. Led by a strong motivation to
expand, the EU set strict environmental standards for these countries as prerequisites to
become a member country, while presenting financial support for environment
conservation investment. Compared to the EU, Asian countries do not have the same
driving incentives.
2.

Chinas gross domestic product (GDP) per capita is still at the developing country level,
the nation as a whole is a big power from various aspects. In the case of Europe, there
are no outstanding countries in terms of air pollutants discharge from any one country. In
the case of Asia, the development of a comprehensive framework could not be achieved
without Chinas participation in the basic formulation process.

So far the Japan Agency for Marine-Earth Science and Technology (JAMSTEC), the National
Institute for Environmental Studies (NIES), and other organizations have conducted quantitative
analyses on PM2.5 pollutants arriving from China. According to these, depending on the time
and place, the impact from transboundary air pollution in relation to the annual average
concentration of PM2.5 in Japan is estimated to account for 50 percent at maximum. However,
the PM2.5 concentration measured in the Kita-Kyushu area, one of the urban areas in Japan
closest to China, on January 2013, during the days when the PM2.5 concentration was high in
Beijing, was not significantly higher than that on January 2012. This result indicates that the
1 Who Is to Blame for Northeast Asias Transboundary Air Pollution Problem?

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relationship between China and Japan concerning the PM2.5 concentration increase is not as
simple as first thought.
Future China-Japan Cooperation
Future cooperation between China and Japan is anticipated to be in the form of technology
transfer from Japan and joint research. One example is the introduction of dust-collection
technologies to capture very small-sized particular matter. De-sulfurization technology and denitration equipment are already widespread nationwide in China. Also, the transfer of technology
related to electric vehicles (EVs) that includes plug-in hybrids is highly expected. In addition, the
knowledge and experience gained from establishing volatile organic compounds (VOCs)
emissions management systems in Japan need to be shared with China.3
One thing we should note is that technology transfer is most often conducted among private
companies, although they usually expect an injection of public funds to cover some portion of
the initial investment. However, most such efforts end up in failure either as successful
technology transfers or businesses. Japans experiences and know-how in environmental
pollution countermeasures in the 1960s and 1970s are shared with China to some extent through
capacity building provided by technological cooperation programs of official development
assistance (ODA) and projects to raise awareness. Moreover, in some areas, China takes more
proactive or advanced countermeasures than Japan on environment and energy issues. Therefore,
what Japan can provide to China, such as policy proposals and immediate technical measures
against PM2.5, is quite limited.4
In consideration of this situation, What could be the best scenario ?
The best scenario is that the two countries establish a bilateral cooperative framework with
concrete numerical targets of emission reductions. However, this wont likely be achieved
without providing incentives in both countries. I believe that the following measures are critical
to achieving this.
3 TRANSBOUNDARY POLLUTION FROM OFFSHORE OIL AND GAS ACTIVITIES IN

THE SEAS OF SOUTHEAST ASIA

4 8/29/2016 Examples of Transboundary Pollution Lesson.Website
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1.Both China and Japan must re-address their voluntary domestic PM2.5 emissions reduction
targets, like the target set by the city of Beijing.
2.

They should jointly launch an environmental fund that could also contribute to joint
energy resource development, research in energy technology, and stock building in
energy resources. Overall, these issues should be negotiated in a comprehensive policy
package that addresses the various concerns shared by both countries.

During the 1980s, Mikhail Gorbachev, former president of the Soviet Union, sparked a historical
shift in diplomatic policies by calling global environmental problems a common enemy of
humanity. His new-thinking diplomacy led to the peaceful mitigation of East-West conflicts.
The EU got its start from a cooperative structure between the iron/steel and energy sectors. Even
under current political tensions between Japan and China, as well as Japan and Korea, Asia
should duplicate such a history of environmental and energy issues that bring peace to the region
and the world. The term crisis in Chinese letters used in both China and Japan implies
opportunity. In an ideal scenario, a high-level cooperative relationship can be built by taking
advantage of the current environmental crisis. If done properly, it is fully feasible.5

Artic Region
The Arctic region is viewed as a place of ice and snow and wind and cold, a place of darkness in
winter and perpetual daylight in summer, and above all, a place untouched by civilization. This
picture of a world apart is no longer completely valid. The Arctic is now recognized as very
much a part of the world we all live in it is impacted by our activities in the more industrial
southerly latitudes of the planet.
We are becoming increasingly aware that our planet must be looked at globally. There is now
fairly convincing evidence that we are impacting the systems of the entire world, and the Arctic
seems to be particularly sensitive to those influences.
Long distance transport of airborne particles has been documented around the world. For
example, it is known that dust from the Gobi Desert of Mongolia travels far out into the Pacific
5 www.ecology.com/2013/11/22/transboundary-air-pollution-china/
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Ocean. A Japanese research group in1971 observed dust pass over Japan from Asia and days later
collect in Hawaii and Alaska. They concluded that a single surge of dust from the Gobi had
drifted across the Pacific for well over10,000 kilometers.
The contamination of the Arctic marine food web by organochlorine compounds (OCs) and
heavy metals has been brought to light during the last decade and is now a well known
phenomenon. OCs are anthropogenic (human caused) compounds that include pesticides such as
lindane,

chlorodane,

endrin,

dieldrin,

toxaphene,

hexachlorobenzene

(HCB),

and

dichlorodiphenyl trichloroethane (DDT) and polychlorinated biphenyls (PCBs) to name a few.

Many of the OCs are industrial or agricultural chemicals that have been banned in North
America and Western Europe since the late 1970's. Despite the regulatory action, these
compounds are still being emitted into the environment because of ongoing use in many parts of
the world (for example: toxaphane is still sprayed on crops in India and China), as well as
improper storage and disposal. Heavy metals are produced mainly by smelting, burning of fossil
fuels, and waste incineration common activities in our communities.
Unfortunately, nearly all of the OCs detected at southern latitudes have also been detected in the
Arctic. Since the Arctic has few local sources of pollution, most of the contaminants affecting it
have travelled many miles from low and midlatitude sources. Once released into the environment
they reach the Arctic through the atmosphere, rivers, and ocean water currents. The hazard lies in
the continuous accumulation of contaminants transported to the Arctic in a process know as
bioaccumulation. After PCBs are spilled, or pesticides sprayed on crops, they evaporate in the
atmosphere and their residue is carried long distances by prevailing winds. Pesticideladen soils
and organochlorines from industrial incinerators are also transported this way. Once deposited on
land or water, they may reevaporate and be on the move again

Greenland.
Greenland is an example of the effects of transboundary pollution. It is a country of clean air and
water situated far away from major industrial centers and with few local sources of pollution.
Pollution from lower latitudes, however, is a growing concern. The major concern for human
health is organic mercury. Mercury is concentrated in the food chain and reaches high levels in
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the traditional Greenlandic diet, which is composed mostly of marine mammals. Very high levels
of blood mercury have been found in hunters and their families from northern Greenland, but
toxic effects have so far not been observed.
So, while the Arctic world is still distant, there is a growing silent presence of contaminants in
the food web whose sources are thousands of miles away. Understanding the earth's atmospheric,
river and ocean circulatory systems is an important first step in understanding the impact we are,
unknowingly, having on the Arctic region.
There has been a good deal of research and concern recently regarding the presence of these
contaminants in the various Arctic mammal species. In the Arctic, contaminants in sea water
builds starting with zooplankton, increasing in concentration as they move through the fatty
tissues of small, then larger fish to the seal and to the polar bear. The contaminants actually
increase in concentration each time they move through the food web. This process is known as
bioaccumulation. Bioaccumulation continues at each link in the food web, resulting in a bigger
dose for animals at the higher end of the food web (polar bear, walrus, beluga whale). So the
level of PCBs, for example, in polar bears is exorbitantly high.
Organochlorines are of critical concern since they accumulate in whale and seal blubber and
caribou fat, all of which are considered a major food that has cultural and economic importance
for the Inuit. Disturbing evidence of this bioaccumulation is the organochlorine pollutants that
are appearing in the breast milk of Inuit women. This is especially of concern when the closest
known sources of these contaminants are thousands of miles away from the Arctic region.
It is very important to understand the implications of the daytoday activities we have in the more
industrial parts of the world. While spraying our farms may help with the insects locally, the
impact of the dissipating pesticides in the atmosphere is felt strongly in the Arctic. "Think
globally and act locally" has never had a stronger meaning than when it comes to the Arctic.
Transboundary pollution is made of harmful chemical or waste that crosses from the nation
where it originated into another country. While air pollution is the most common type of
transboundary pollution, polluted water can also be spread from country to country via rivers or
the open ocean.
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Transboundary Pollution
Transboundary pollution is made of harmful chemical or waste that crosses from the nation
where it originated into another country. While air pollution is the most common type of
transboundary pollution, polluted water can also be spread from country to country via rivers or
the open ocean.6

US-Mexico Transboundary Pollution

In 2002, the United States and Mexico, along with tribal governments, proposed Border 2012
Program an international program designed to reduce pollution-related public health risks and
maintain the natural environment. The proposal was followed by a 60-day public comment
period, in which public and private stakeholders could raise issues that the program might
address.
In the region around California, stakeholders specifically identified "proposed power plants in
Mexicali, soil particles in the air from the Salton Sea, vehicle emissions and brick-kiln burnings
in Tecate, as well as trash burning in many cities" as transboundary issues of concern.
In the region around New Mexico, stakeholders identified "region wide plans for air basins and
watersheds," as well as, "other air quality problems focused on toxic gases, and dust from trucks
in the Marfa/Presidio area" as specific concerns.

U.S. Emissions Drift into Canada

A 2005 report from the Canadian province of Ontario titled, "Transboundary Air Pollution in
Ontario," explicitly lays out the smog affecting Canadians that is directly attributable to U.S.
sources. According to the report, a considerable amount of Ontarios smog comes from the U.S.
The report also acknowledged that Ontario is a contributor to regional air pollution.
Of the health damages that total about $6.6 billion annually approximately $3.7 billion can be
attributed to U.S. emissions and $2.9 billion to Ontario air pollution, the report said. A large
proportion of damages attributable to U.S. emissions is in southwestern Ontario while the

6 www.caee.utexas.edu/prof/mckinney/ce397/Topics/Pollution/Pollution(2012).pdf
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greatest impacts of Ontario air pollution originating in Ontario are seen in the south central part
of the province, the report said.
Europe Takes Steps to Limit Transboundary Pollution
Under the United Nations Economic Commission for Europe, European nations have agreed to
several treaties designed to regulate environmental and pollution issues across borders
including the Convention on Long-Range Transboundary Pollution, the Convention on
Environmental Impact Assessment in a Transboundary Context and the Convention on the
Transboundary Effects of Industrial Accidents.7
In a 2011 report, the Convention on Long-Range Transboundary Air Pollution cited evidence
from ground-based and satellite observations that showed particulate matter and other pollution
being transported from country to country and around the world.
Since the early 1990s, the Convention on the Transboundary Effects of Industrial Accidents has
worked to prevent and mitigate the pollution-related effects of industrial accidents. According to
the conventions website, Europeans were spurred into action by the 1976 industrial accident in
Seveso, Italy, and the 1986 accident in Basel, Switzerland.

Transboundary Pollution Among China, Japan and South Korea

According to a report from The London School of Economics and Political Science, Japan, South
Korea, China and other northeast Asian countries form a single ecological community as a result
of proximity and climate factors. "Seasonal westerly winds can carry pollutants (acid particular
matter, sand) across the whole region, and the semi-enclosed seas of the region, the Yellow Sea
and the Sea of Japan, transport polluted matter from the surrounding land as well as from ships,"
the report said.
A 2000 study from Japanese researchers, published in the journal "Atmospheric Environment,"
found evidence of air pollutants over China being transported by a typical winter weather pattern
southeastward to the remote Japanese islands of Oki and Okinawa.

7 Transboundary Pollution and Environment management in Europe Jaqueline Mcglade

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Who Is to Blame for Northeast Asias Transboundary Air Pollution Problem?
Simply pointing the finger at China wont relieve the smog impacting Korea.South Korea is
faced with periodic environmental disasters in the form of pollution blowing from China. In the
winter, thesource is typically excessive burning of coal used in China for heating. In the spring,
yellow dust from the deserts of northern China and Mongolia are blown across Northeast Asia,
picking up so out and carcinogens from China based industrial processes along the way. The
movement of pollution like this beyond Chinas borders is technically in violation of the United
Nations Convention on Long Range Transboundary Air Pollution, but the fact that both natural
and anthropogenic processes are at work makes it difficult to establish practical policy
prescriptions. Yet, the longer the issue goes unaddressed, the greater the public health costs
become.
Outside of China, the health consequences are most severely felt in Korea. Short term effects of
particulate matter, yellow dust, and their combined effects with pollutants such as nitrous oxide
include increases in mortality, hospital admissions, asthma symptoms, cardiovascular effects,
lung inflammation, chronic obstructive pulmonary disease, lung cancer, diabetes relatedeffects,
and risks of myocardial infarction. Data drawn from the Asian Regional Emission Inventory
indicate that premature mortality from related air pollution problems for all of East Asia will
range from 450,000 to over 1 million cases in 2020 depending on policy scenarios. There are no
current estimates of precisely how much these health related issues could cost Korea
economically, but it is assuredly significant. In China, the costs amount to close to 4 percent of
GDP.
Meanwhile, the Korean media cover the problem inconsistently. Winter based coverage
highlights the Chinese influence spring based coverage (yellow dust) typically focuses on health
related impacts and preventative measures (e.g., using dust masks, air purifiers, and humidifiers).
Both of these approaches fall short: the first merely attributes the problem to China, while the
second treats the problem as though it were strictly epidemiological.
The true nature of the problem is tied to the international economy. Like much of the world,
Korea imports heavily from China. At the same time, outflows of foreign direct investment (FDI)
from Korea to China are massive, representing an average of 610percent of FDI in China. In
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short, Korean investors are quite possibly exporting a portion of their pollution producing
entitiesto mainland China, where weaker environmental standards and lax enforcement (not to
mention lower labor costs) provide a more advantageous profit margin.
We know that there is a connection between FDI inflows and the rise of pollution. In addition,
approximately one third of sulfur dioxide, one quarter of nitrogen oxides, one quarter of carbon
monoxide, and exactly 17 percent of black carbon emissions in China come from export related
manufacturing. This is a story that has slowly played out in China since the 1997 economic
stimulus plan boosted widespread use of fossil fuels.
Correlation analysis indicates that FDI flows from Korea to China are positively associated with
Chinas fossil fuel energyconsumption, as are respiratoryrelated deaths in Korea. On the basis of
just these associations, the beginnings of a theoretical model begin to emerge one where
Koreanbased investments in China ultimately contribute to negative health outcomes and
increasing health costs for Koreans at home.8
Though the Korean media tend to lay the blame for the costs of transboundary air pollution on
China, the urgency of thisproblem requires the cooperation of both countries to manage what is
ultimately a regional pollution issue. There is, of course, asimple but untenable solution: Korea
could decrease its FDI in China, eliminating a portion of the pollutants that enter the air. But a
better, more practical solution is the further deepening of KoreaChina cooperation.
To do this, Korea and China can take a few steps in the short term that will impact the longterm
effects of the pollution problem.
1.Negotiation and problemsolving activities among a handful of invested and capable individuals
must continue and eventually expand. In Northeast Asia, this has been occurring through
formal negotiations and discussions, such as meetings of the annual Tripartite
Environmental Ministers Meeting (TEMM) and the Acid Deposition Monitoring Network
in East Asia (EANET), the latter of which is a regional initiative to install air pollutionrelated monitors to improve data quality and analysis.
8 https://ferryway.wikispaces.com/file/view/What+is+transboundary+pollution.ppt
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2.

China must couple its indigenous green energy efforts with the pursuit of technological
solutions abroad. Effective and sustained growth can only be achieved when continued
manufacturing of export goods couples with a reduction in emissions. From the Korean
perspective, sharing relevant technology can be incentivized for Korean investors in
Chinabased enterprises, particularly those that are energy intensive in their production
process. Such incentives may include subsidized intellectual property licensing payments
or a health cost offset.

These technological solutions build on basic research efforts that will provide the bedrock for
further innovation. On that front, scientists and researchers in Northeast Asia have already
established a cohesive network within and extending beyond the region to address Asias
pollution problem. When research is oriented around air pollution, as is the case in cross national
research collaborations in Northeast Asia, a foundation is laid for collaborative patenting efforts
and the creation of a growth trajectory reliant upon green technologies. But, as stated above, such
efforts must ultimately complement the transfer of emissionsreducing technologies and formal
statetostate discussions.
Assigning the blame for transboundary air pollution in Northeast Asia solely to China is
counterproductive: it oversimplifies the problem and it is factually inconsistent. Accurately
understanding the complexities of the problem and improving coordination between Seoul and
Beijing will help to alleviate a burgeoning health crisis.

Principles of international Environment Law On Transboundary Pollution

Since 1992, sustainable development has been the universal master norm for marrying economic
and environmental concerns that also underlie the law on transboundary pollution. This master
norm is concretized in the Rio Declarations Principles ( Stockholm Declaration [1972] and
Rio Declaration [1992]). Most of these Principles direct action in regard to both State internal
and trans boundary matters, although some only apply to the latter. They proceduralize the said
substantive, sovereign, and functional rights of States.
The Principles offer a coherent set of regulatory ideas for controlling trans boundary pollution.
The Rio Principles have indeed been exercising a directional effect on the control of trans
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boundary pollution. The Rio Principles have since been affirmed and further concretized through
international legalization, such as treaties, infra treaty rulemaking. Some Principles have now
become customary law and as such are directly applicable legal yardsticks for trans boundary
pollution control. In addition, and as confirmed by the ITLOS in its Responsibilities Advisory
Opinion, the Rio Principles also inform the interpretation of all international law. The Tribunal
there advances, as a legal hook, Art. 31 (3) (c) VCLT. However, this interpretive means may
simply be grounded in the acceptance of States and international courts and treaty bodies.9
Sic utere tuo ut alienum non laedas
The foundational Rio Principle 2 provides that States have the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of other
States. This is a reconceptualization, from the overarching idea of the responsibility of every
State towards the international community, of the established customary principle of sic
utere tuo ut alienum non laedas. This principle is directly applicable to transboundary
pollution control. It provides that a State must not use its territory, or knowingly allow it to
be used, in such a way that causes significant harm to another State, including that States
environment. In the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, the
ICJ stated its status and content as follows: the general obligation of States to ensure that
activities within their jurisdiction and control respect the environment of other States is
now part of the corpus of international law relating to the environment (at para. 29).
Arguably not too much should be read into the fact that this judicial formulation differs from
the wording contained in the Rio Principle 2 insofar as it uses a cumulative rather the
alternative conjunction. The customary nature was reaffirmed by the Court in Pulp Mills on
the River Uruguay (Argentina v Uruguay) (at para. 101).
The challenge then is to determine which concrete requirements the State of origin faces in order
to meet this responsibility. The gamut of potential requirements in international law then range
from formal permission for any or some polluting activities, the prescription of procedural or
9

Transboundary PollutionEnvironmental Encyclopedia (/Environmental+Encyclopedia/publicatio

ns.aspx?pageNumber=1) | 2003 | Fridgen, Cynthia

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substantive standards for that permission, appropriate response measures to eliminate or mitigate
such harm, to compensation and liability. What measures the State of origin needs to take
depends on the activity and the risks it presents, seen in light of the other Rio Principles.10
Environmental Information

Rio Principle 10 demands that the public be provided with environmental information, as a key
mechanism for ensuring that environmental rules are effectively applied.
This mechanism has been enshrined in regional treaty law, for instance, the UNECE Convention
on Access to Information, Public Participation in DecisionMaking and Access to Justice in
Environmental Matters ( Access to Information on Environmental Matters Access to Justice in
Environmental Matters). Such information must also be provided across borders, that is, to actors
under the jurisdiction of a State potentially affected by pollution activities in the State of origin
without discrimination (Art. 3 (9)).11

Liability and Compensation

Rio Principle 13 demands that rules be developed regarding liability and compensation for the
victims of pollution ( Liability for Environmental Damage). This clearly applies to transboundary
pollution. It dovetails with Rio Principle 16, which demands that the polluter bear, in principle,
the cost of pollution (Polluter Pays).
This principle has been implemented through customary and treaty law, in regard to States taking
measures to provide for compensation of victims of transboundary pollution and that the cost of

10 http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law9780199231690e1560

5/11
11 9/13/2016

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such compensation be borne by operators of the pollution causing activities, via the
establishment of their liability in national law.12
Precautionary Principle
Rio Principle 15 deals with the precautionary approach/principle. Under it, threats of serious
damage call for cost effective preventive measure, even where full scientific uncertainty remains
lacking.
The principle is still in the process of crystallizing into customary law, as stated by ITLOS in its
Responsibilities Advisory Opinion.
In its general thrust of favouring preventive action, the principle underlies, however, many if not
all of the customary and treaty law on the control of trans boundary pollution in its various
forms.
Environmental Impact Assessment
Rio Principle 17 demands that an environmental impact assessment (EIA) be carried out for
proposed activities that are likely to have a significant adverse impact on the environment.
Principle 17 considers this as an instrument of national law. The principle of a prior
environmental impact assessment for an activity that is likely to cause trans boundary pollution is
now, however, established in general international law. It requires specifically the consideration
of such environmental impacts, such as pollution, that occur in other States. In Pulp Mills on the
River Uruguay, the ICJ has confirmed this customary status. It is true that this case concerned a
shared resource in the sense that the administration of the River Plate is undertaken by Uruguay
and Argentina. Nevertheless, this pronouncement that occurred in a borderline case also extends
to pure transboundary scenarios.
While the legal status of EIAs has thus been confirmed, the customary lawdetermined content
remains thin. It only requires that some EIA take place, but does not prescribe the precise
procedures for carrying it out. The customary EIA principle is, however, concretized through

12 Transboundary Pollution Food Web and Bioaccumulation

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different means. At international level, the most general such concretization is contained in the
UNEP EIA Principles, which apply to transboundary impacts.
In Pulp Mills, the ICJ recognized that these are capable of concretizing the customary rule, on
the basis that the UNEP is the international body with a universal environmental mandate (at
para. 205). Further concretization can be achieved through treaty law. Thus, under UNCLOS, in
the Straits of Johor Case, ITLOS enjoined the carrying out of a public EIA in a transboundary
context by using expert advice. The regional Convention on Environmental Impact Assessment
in a Transboundary Context (Espoo Convention) applies and has been used for assessing the
effects of large transboundary projects, such as the North Stream Pipeline. Finally, it is for
national law to provide for detailed impact assessment procedures in a transnational pollution
context.
Prior Information and Consultation
According to Rio Principle 19, States shall provide prior and timely information to States
potentially affected by activities that may have a significant adverse transboundary
environmental effect and shall consult with those States.
This has arguably entered customary law. The principle underlies the treaty regimes on
transboundary pollution control. These regimes strengthen the duty to consult, providing for the
need to obtain the consent of the affected State.
The Effectiveness of Procedure
The Rio Principles rely essentially on procedure to achieve the objective of sustainable
development in regard to transboundary pollution. The legal effectiveness of procedural
obligations has been considerably strengthened by ICJs judgment in Pulp Mills on the River
Uruguay. There, the Court deduced from such procedures that States ought not to authorize
polluting activities that would render them pointless (at paras 151158, and Separate Opinion of
Judge Greenwood in that case). While the case directly concerned a shared resource, this
rationale is clearly transferable to all instances of transboundary pollution for which States are
under conventional or customary procedural obligation.

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State Responsibility
Transboundary pollution can trigger the international responsibility of a State for unlawful acts.
The relevant customary law is authoritatively reflected in the ILCs Draft Articles on the
International Responsibility of States for Internationally Wrongful Acts.
Such responsibility has the condition that the State of origin violated a specific obligation
incumbent on it in regard to the pollution. Each of the legal yardsticks discussed above must then
be analysed as to its capacity to generate such a primary obligation. This is the case for the
territorial integrity and the related sic utere tuo principle. Customary international law as
concretized through the UNEP EIA Principles also creates an obligation, at least as to the
carrying out of some such impact assessment. The specific preventive and compensatory
obligations under the customary law on hazardous activities do so as well.
It is generally accepted that there is no general requirement of a material or moral damage
suffered by the victim State for the acting State to be responsible. In the present context, this
means that actual harm for the environment of the affected State through pollution needs not be
demonstrated.
Where a primary obligation has been violated, this will create a secondary obligation for the
acting State, to cease an ongoing violation. This allows the potentially affected State to enforce a
preventive obligation, by demanding that the required preventive measures be taken by the State
of origin. Where cessation is not sufficient, reparation for the causal consequences of the breach
is to be made. Both causation and quantification of environmental damages are notoriously
difficult to establish. Guidance can be taken from arbitral and commission practice.
A question may arise whether a State that is the victim of the breach of one of the said primary
obligations on transboundary pollution control by another is entitled to breach the same
obligation, as a countermeasure. Art. 50 ILC Draft Articles on State Responsibility does not
make explicit mention, among the obligations exempted from any countermeasure, of obligations
regarding the environment.

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The prohibition of causing significant harm to the environment of another State, through
transboundary pollution, could, however, fall under the residual exemption that is provided for
peremptory norms of general international law within the meaning of Art. 50 (1) (d).
This provision refers to the generally accepted definition of peremptory international law
contained in Art. 53 VCLT ( Ius cogens). But neither that provision nor Arts 50 or 40 Draft
Articles on State Responsibility give examples of such peremptory norms. The environment of
each State or, for that matter, the global commons, also do not feature in the lists of peremptory
norms enunciated by the ILC in its commentaries on the VCLT and on the Draft Articles on State
Responsibility or by the ICJ in its jurisprudence so far. However, if all values of the international
community may give rise to peremptory norms, then this could also cover the environment of
each State. In that case, at least the rules on hazardous transboundary pollution control would
lose their materially reciprocal character (Reciprocity). This seems all the more desirable since
such pollution will almost always also significantly impair human health.

Bibliography
1. Transboundary pollution from offshore oil and gas activities in the seas of southeast asia
2. TRANSBOUNDARY AIR POLLUTION
3. Franco DiGiovanni and Philip Fellin Airzone One Ltd., 222 Matheson Boulevard East,
Mississauga Ontario, Canada
4. Examples of Transboundary Pollution Lesson.Website

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Transboundary Pollution
5. Case Study of Transboundary Dispute Resolution: The Environmental program for the
Danube River Authors: Aaron T. Wolf and Joshua T. Newton
6. 9/13/2016 Oxford Public International Law: Air Pollution, Transboundary Aspects
7. Transboundary Pollution Food Web and Bioaccumulation
8. Transboundary Pollution and Environment management in Europe Jaqueline Mcglade
9. Transboundary Pollution | Scholastic.com
10. 8/29/2016 Transboundary Pollution Environmental Encyclopedia | Encyclopedia.com

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