International Conference TRANSBOUNDARY POLLUTION: EVOLVING ISSUES OF INTERNATIONAL LAW AND POLICY February 2014, Singapore

Transcription

1 International Conference TRANSBOUNDARY POLLUTION: EVOLVING ISSUES OF INTERNATIONAL LAW AND POLICY February 2014, Singapore Session 6: Transboundary Air Pollution TRANSBOUNDARY AIR POLLUTION: A TALE OF TWO PARADIGMS By Alan Boyle Professor of Public International Law, University of Edinburgh Barrister, Essex Court Chambers, London Draft Only Not for circulation or citation without express permission of the author

2 TRANSBOUNDARY AIR POLLUTION: A TALE OF TWO PARADIGMS Professor Alan Boyle I. The Aerial Herbicide Spraying Case and Transboundary Air Pollution Due Diligence The Precautionary Approach EIA Transboundary Application of Human Rights Law Conclusions II. Multilateral Regulatory Regimes for Transboundary Air Pollution Professor of Public International Law, University of Edinburgh; barrister, Essex Court Chambers, London. 2

3 International law offers two paradigms for addressing transboundary air pollution: the Trail Smelter Arbitration of 1941 and the Convention on Long-Range Transboundary Air Pollution of The first of these paradigms was concerned with an identifiable source of transboundary pollution that could be addressed within the framework of bilateral relations. The arbitral tribunal concluded that 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 persons therein. It awarded monetary damages to compensate for transboundary harm caused by the smelter s emissions, and it prescribed control measures to avert future transboundary harm. 1 International environmental law has developed greatly since then, but the basic principle upheld by the arbitrators in the Trail Smelter Case remains unchallenged. In today s international law that principle is expressed in the obligation of States to use due diligence to regulate and control potentially harmful activities taking place within their own territory, jurisdiction, or control. The two leading cases are Pulp Mills on the River Uruguay, 2 and the Advisory Opinion on the Responsibility of States for Seabed Activities, 3 although neither is specifically about air pollution. I will explore this paradigm in the first section of the paper, using the now settled Aerial Spraying Case to illustrate some of the key issues of general international which arise when applied to transboundary air pollution. 4 Its most obvious relevance to Singapore is the problem of smog caused by large-scale forest fires in Indonesia. The second paradigm locates transboundary air pollution within a broader regional context and addresses it through the mechanism of evolutionary regimes of multilateral regulation exemplified by the 1979 Geneva Convention on Long-Range Transboundary Air Pollution and the 1991 US-Canada Air Quality Agreement. This approach treats regional airmasses as shared natural resources. 5 Long-range transboundary air pollution is defined as pollution having effects at such a distance that it is not generally possible to distinguish the contributions of individual emission sources or groups of sources. 6 Thus it is not aimed at Trail Smelter type cases, but at regional problems of acid rain and other widely dispersed pollutants AJIL (1941) ICJ Reports 2010, p Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, ITLOS Seabed Disputes Chamber Ecuador/Colombia. See ICJ website for the application and written pleadings of the parties. The author was counsel for Ecuador but the views expressed here are his own and not those of any government he has represented. 5 UNEP has referred to airsheds in this context: see Report of the Executive Director, UNEP/GC/44 (1975) para Article 1(b). 3

4 The benefits can be observed in the increasingly complex and largely successful structure of protocols built onto framework conventions and dealing with a range of widely dispersed air pollutants. I will explore this paradigm briefly in the second part of the paper. The point that is most relevant in Asia is the absence of any comparable regional regime in this continent, despite the growing and obvious problem of transboundary air pollution on a regional scale, caused in particular by Chinese and Indian emissions and the continued growth in fossil fuel consumption. I. THE AERIAL HERBICIDE SPRAYING CASE AND TRANSBOUNDARY AIR POLLUTION The Aerial Herbicide Spraying Case would have been the first case on transboundary air pollution to come before the ICJ and the first before any international tribunal since Trail Smelter. Wisely for the parties (Ecuador and Colombia) it was settled only a few weeks before oral argument was due to begin, but the written pleadings are all on the ICJ website, and they make interesting reading. In particular the case is almost literally a textbook example of the application of the due diligence obligation to an activity (aerial spraying of herbicides) that was alleged to cause or to risk causing transboundary pollution in Ecuador, downwind of the spraying operation. The case arose out of Colombia s efforts, funded by the United States, to eradicate illicit coca production by spraying coca plantations with herbicides, using specialist crop spraying aircraft and converted military observation aircraft. The problem was that the herbicide drifted into Ecuador when spraying was carried out in close proximity to the border. Ecuador alleged that the herbicide spray caused illness in people and livestock, polluted water supplies, and damaged legitimate crops. At its most extreme it was claimed that it resulted in abandonment of some villages in border areas. The case raised a number of legal issues of general importance to transboundary pollution. First, what preventive measures will satisfy the standard of due diligence required by international law in this context? Second, is the precautionary approach relevant or of any value in this kind of case? Third, in what circumstances must an EIA be carried out before such activities are permitted? Fourth, does human rights law have any bearing in cases of transboundary pollution affecting the population living on the other side of the border? Plainly, as the case has now settled without a hearing, it can provide no definitive answers to any of these questions. Nevertheless, the proceedings do illustrate how transboundary air pollution might be addressed by an international court or arbitral tribunal, and there are lessons here for other states with comparable problems. The first and most obvious lesson is that filing a case and intimating that an application for provisional measures will follow can be a very effective way of stopping a risky activity. 4

5 Colombian spraying within 10kms of the border ceased in 2007, soon after the case was initiated. It has never resumed, and the settlement agreed in 2013 makes it unlikely that it ever will resume. Provisional measures applications don t always have this effect Uruguay successfully resisted an Argentine application for provisional measures in the Pulp Mills Case in 2006, but it had a good case and Argentina did not. To win on provisional measures in an environmental case you need to establish an urgent need to prevent irreparable harm that may otherwise occur in the two or three years it will take for a hearing on the merits to come before the court. 7 The record of successful applications for provisional measures is mixed: for Colombia to concede in 2007 without an application even being filed is remarkable. It shows that in some cases litigation can provide immediate and effective protection from the risk of irreparable transboundary harm. 1. Due Diligence The second lesson is that due diligence matters and must be taken seriously. Proving a failure to act with due diligence is the core of any case involving transboundary pollution. In Aerial Spraying the evidence showed that Colombia recognised the risk of transboundary pollution. It issued a management plan setting out operating parameters for the spraying operation, including aircraft speeds, height, and prohibited areas. These were designed to minimise the risk of transboundary drift and they might have worked had they been enforced. But it seems they were not enforced. The evidence appeared to suggest that the aircraft flew too high and too fast and operated in locations they should have avoided. If true, would this amount to a failure to act with due diligence? Several preliminary points need emphasis. The obligation of due diligence is an obligation of conduct, not an obligation of result. 8 A violation is established by proving failure to take the measures necessary to prevent, regulate, or control the potentially risky activity. A violation is not established by showing actual pollution or a risk of pollution. Proof of pollution or the risk of pollution establishes only that the state has a duty to act. It does not tell us that the state has failed in its duty to act. The point is very clearly elaborated in the ILC s articles on prevention of transboundary harm. These articles require states to control activities which may otherwise cause harm in neighbouring states. 9 They are about the management of risk. They do not presuppose the existence of harm. They do presuppose that harm is foreseeable Pulp Mills (Provisional Measures), Order of 13 July 2006, ICJ Reports 2006, p.113, para. 62. See also Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), (Provisional Measures), Orders of 8 March 2011, ICJ Reports 2011 (I), p. 21, para. 63, and 13 December 2013, ICJ Reports 2013, p.??, para Pulp Mills, ICJ Reports 2010, p.14, para See ILC Report (2001) GAOR A/56/10, ILC Report (2001) GAOR A/56/10, 385, paras (14)-(15), 387, paras (1)-(3). 5

6 The obligation to act is the State s, not the operator s. Showing that the company operating the aircraft had not followed Colombia s own rules does not establish a failure by Colombia to act with due diligence. 11 The question is thus what the state did or failed to do, not what the company did or failed to do. Colombia is not vicariously responsible for the companies it employs. It is responsible for its own actions or inactions. The same is true in Trail Smelter, Pulp Mills, and the ITLOS Advisory Opinion on Seabed Activities. All of these cases involved businesses rather than State activity, but the State s engagement arose from its obligation to use due diligence to control the activity, not from any attribution of those activities to the State. What does the exercise of due diligence entail? In its Pulp Mills judgment the ICJ reaffirmed that A State is thus obliged to use all of the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another state (para 101). The Court identified what due diligence requires in the following terms: adoption of appropriate rules and measures (para 197) a certain level of vigilance in their enforcement (ibid) (ibid) the exercise of administrative control applicable to public and private operators careful consideration of the technology to be used (para 223) EIA (ibid) Uruguay satisfied the Court on all these points. It could show that the technology used in the mill was of the highest international standard. It had set waste emission limits for the main pollutants which ensured that the river water continued to meet the water quality standards agreed in CARU, the river commission. It had a comprehensive monitoring scheme in place, and where necessary it had shown itself prepared to take enforcement action against the operating company. Finally, it had carried out the required EIA. Argentina failed to prove its case, not because pulp mills do not pose a risk of pollution, but because it could not show that Uruguay had not taken appropriate measures to prevent, regulate and control that pollution. The ITLOS Advisory Opinion on Seabed Activities cites with approval the ICJ s treatment of due diligence, but it makes the following additional points: Due diligence is a variable concept, which may change over time and differ in respect of different risks (para 117). 11 Advisory Opinion on Seabed Activities, ITLOS 2011, paras

7 the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, which is applicable even outside the scope of the Regulations. (para 131) In 2011 a national commission of enquiry reported to the US Congress on the Deepwater Horizon oil rig disaster. 12 Although not the subject of international litigation Deepwater Horizon illustrates the failure of due diligence addressed in Pulp Mills by the ICJ and by the ITLOS in the Advisory Opinion. In addition to its criticisms of BP (the well operator and lessee), Transocean (the rig operator), and Haliburton (the principal contractor), the report gives a damning account of regulatory failure by Congress and by the Minerals Management Service (MMS). Among a long catalogue of failures, the following stand out: Inappropriate regulations: drilling regulations were well below industry best practice in the North Sea. They were based on a prescriptive regulation with inspection model characterised as fundamentally reactive and therefore incapable of driving continuous improvement in policies and practices. (p.69) The report notes that efforts to adopt a more rigorous and effective risk-based safety regime were repeatedly revisited, refined, delayed, and blocked by industry or sceptical agency political appointees. (p.71) Inadequate administrative control: MMS became an agency systematically lacking the resources, technical training or experience in petroleum engineering that is absolutely critical to ensuring that offshore drilling is being conducted in a safe and responsible manner. (p.57) Lack of vigilance in enforcement: diminished resources meant fewer and less effective inspections (p.74). Inspectors were poorly paid, poorly trained, too few in number, too inexperienced (p.79). A culture of inspectors accepting gifts from oil companies was prevalent (p.78). Unfamiliarity with the technology: As drilling technology evolved, many aspects of drilling lacked corresponding safety regulations. (p.73) No EIA: MMS lacked resources to carry out meaningful NEPA review and in practice it exempted Gulf oil drilling from NEPA (pp.81-2). The report refers to a culture of complacency. No other agency had the resources or authority to do the job. (p.84). Notwithstanding layers of required environmental scrutiny by NEPA, OPA, OCSLA, EDSA, CWA - none of these laws resulted in site-specific review of the drilling operations of the Macondo well. (p.84) 12 US Congress, Report from the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, Washington, 11 th January

8 Overall it is hard to imagine a better example of the failure by a state to act with due diligence. If this accident had resulted in damage to other states the US could not easily have defended itself if sued in an international forum. 13 As all these examples make clear due diligence entails an evolving standard of technology and regulation. 14 In some cases the appropriate standard is agreed internationally, as for example in the case of nuclear installations or oil tankers, 15 and the relevant international agency will retain responsibility for periodically reviewing and updating the regulations and guidelines. There are no internationally agreed standards for any form of air pollution save for emissions from ships, which are regulated by IMO. 16 In the absence of internationally agreed standards comparison with standards adopted by other states may be a good guide. This approach allows for the standard of diligence to change as technology and operating techniques develop and for new industrial plants to operate to higher standards than existing plants. Thus, in the Pulp Mills Case, Uruguay accepted that its newly built mill would have to operate to the highest international standards (in that case the EU s), whereas Argentina s older mills most probably could not be expected to do so. 17 The same approach could easily be applied to air pollution from power stations or industrial processes such as smelters or blast furnaces. In effect that is what the 1979 Geneva Convention on Long-Range Transboundary Air Pollution and the 1991 US-Canada Air Quality Agreement achieve at a regional level. They do not mandate technology standards as such, but by setting air quality standards they compel the use of more efficient technology capable of meeting the required air quality standard. 18 Older less efficient plant is then more likely to be phased out. In the Aerial Spraying Case it might have been possible to compare Colombia s regulation of aerial spraying with the stricter approach taken in other countries. The rules governing the Colombian spray programme are among the World s most lenient. The EU, by contrast, bans aerial spraying for most purposes. Those jurisdictions that do not ban spraying impose restrictions significantly stronger than those adopted by Colombia Finding a forum would be the difficult part, given that the US is not subject to compulsory jurisdiction under the ICJ Statute or the 1982 UN Convention on the Law of the Sea. 14 ILC Report (2001), op. cit., p. 394, para See 1994 Convention on Nuclear Safety; 1973/78 MARPOL Convention and annexes thereto. 16 The Marine Environment Protection Committee of the IMO adopted amendments to MARPOL Annex VI, with entry into force on 1 January 2013, making the Energy Efficiency Design Index (EEDI) and the Ship Energy Efficiency Management Plan (SEEMP) mandatory subject to certain conditions. 17 See the argument of the parties (2010) ICJ Reports. See also 1994 Nuclear Safety Convention, Article See section B below. 19 Ecuador Reply, Chapter 4, section III. 8

9 At the same time, and unlike the EU, Colombia was not regulating the application of chemicals for agricultural purposes; it was regulating them for law enforcement purposes in an anti-narcotics campaign. Comparison with operating standards set by other countries for agricultural applications is unlikely to be an appropriate test of due diligence in the very different circumstances faced by Colombia. So what could reasonably be expected of Colombia? Although Ecuador complained that the old Vietnam War era aircraft initially used to carry out the spraying were inappropriate to the task, Colombia had quickly substituted specialist crop-spraying aircraft, so the technology in use by 2007 was arguably more appropriate for the task. Colombia had also adopted rules and measures to control the risk of transboundary drift. From Ecuador s perspective, what was deficient in Colombia s approach to regulation was the absence of a certain level of vigilance in their enforcement referred to in Pulp Mills, coupled with a refusal to mandate a buffer zone in border areas, although as we saw earlier Colombia had in fact operated such a buffer since The crucial problem was thus the failure to enforce the rules Colombia had itself laid down. In this respect the case resembles many of the human rights cases in which a violation consists of the state s failure to enforce its own environmental regulations, resulting in pollution which exceeds health standards or compels affected families to abandon their homes. A failure to enforce the law is in many respects the simplest failure of due diligence. Other failings are less easy to prove and may require expert technical evidence. Moreover, while governments do not normally advertise their failure to control transboundary risks by having no laws on the subject, it may be far from easy to challenge the adequacy of those laws, or the choice of technology which is alleged to cause the risk. Few countries are as helpful as the United States in providing damning evidence of its own misconduct, 20 and Colombia is not one of them. Ecuador s case would have been rather harder to establish without evidence of Colombia s failure to enforce its own rules. 2. The Precautionary Approach Would reliance on the precautionary approach have strengthened Ecuador s case? The ICJ accepted in Pulp Mills that a precautionary approach may be relevant in the interpretation and application of the provisions of a treaty. 21 In its Advisory Opinion, after establishing that the Nodules and Sulphides Regulations required sponsoring States and the International Seabed Authority to apply the precautionary approach, the ITLOS held that the precautionary approach is also an integral part of the general obligation of due diligence of sponsoring States, 20 See references above to US Congress, Report from the National Commission on the BP Deepwater Horizon Oil Spill. 21 ICJ Reports 2010, para

10 which is applicable even outside the scope of the Regulations. 22 This is hardly a controversial proposition. It was accepted by the ILC, 23 and was even endorsed by the late Professor Brownlie, otherwise no fan of international environmental law. 24 Adopting a precautionary approach means that lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. 25 That was the conclusion of the ITLOS in its Advisory Opinion on Seabed Activities: The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors that they sponsor. This obligation applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach. 26 In Aerial Spraying, Ecuador could not easily prove the harm it alleged. The people affected lived in remote areas far from medical facilities. Health effects could not be monitored as they might be in Quito or Bogota. Effects on crops and animals would have to be directly linked to the aerial spraying, but again providing such proof was not easy. There were no dead bodies, or none that could be attributed to the herbicide spray. The unwary might therefore conclude that this is a case of scientific uncertainty. But the function of the precautionary approach in international law is not to compensate for uncertainties or deficiencies in the applicant s evidence. If harm is alleged it must be proved, to the standard required by international courts, by the party alleging it. The precautionary approach affects none of these propositions, all of which are supported by the contemporary case law. What the precautionary approach does, as ITLOS makes clear, is to reduce the evidential standard required in order to prove that an activity poses a risk of harm. It cannot answer the question whether harm to people or property in Ecuador has occurred. It can help answer the question whether aerial spraying of herbicides creates a risk of harm and therefore entails an obligation of regulation and control. The evidence required for this purpose is evidence about 22 ITLOS 2011, para The ILC special rapporteur agreed that the precautionary principle is already included in the principles of prevention and prior authorisation, and in environmental impact assessment, and could not be divorced therefrom. ILC Report (2000) GAOR A/55/10, para As even Professor Brownlie observed, The point which stands out is that some applications of the *precautionary+ principle, which is based on the concept of foreseeable risk to other states, are encompassed within existing concepts of state responsibility. Brownlie, Principles of Public International Law (6 th edn, Oxford, 2003) 276. The ;point is missing from later editions however Rio Declaration on Environment and Development, Principle ITLOS 2011, para

11 the toxicity of the herbicide, its known effects on people, animals and plants, and the likelihood of transboundary drift when sprayed. All of this Ecuador could arguably have proved, and to a standard that would have made reliance on the precautionary approach unnecessary. An additional possible argument is that precautionary measures should have been taken by Colombia to avoid a known risk even if the evidence was uncertain. But here too, it seems otiose to engage precaution as a concept when prevention and the normal obligation of due diligence will serve the same function equally well. Ecuador did argue that taking into account the size of the operation; its location, special climate conditions, [and] materials used in the activity, 27 spraying should have been banned in a buffer zone adjacent to the border. Buffer zones are required by manufacturers labelling and were recommended by Colombia s own environment ministry as a means of protecting people and crops. 28 Such a measure was well within Colombia s power, required no additional technology or expense, and would have been effective to limit aerial drift of herbicide pollution onto the territory of Ecuador. Colombia seemed to agree: the problem disappeared in 2007 when it stopped spraying in border areas. But do we need the precautionary approach or the concept of precautionary measures to get to this conclusion? No, we do not. For me, all of these cases show that the precautionary approach contributes little of utility to general international law. Indeed, it is often a doubleedged sword, relied on by States unable to prove their case. Advertising the weakness of your case is not usually a good litigating tactic. Like ius cogens, the precautionary approach is a car best left in the garage unless it really will help. Too often it seems merely a desperate last resort. 3. EIA In Pulp Mills the International Court found that due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the régime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works. 29 The Court confirmed that in appropriate circumstances an EIA must be carried out prior to the implementation of a project that is likely to cause significant transboundary harm. (para. 205) Moreover, it also held that once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken. (ibid). 27 ILC Report (2001), op. cit., p. 394, para See Ecuador Reply, paras Pulp Mills, ICJ Reports 2010, para 204. See also Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area, ITLOS, Seabed Disputes Chamber, para

12 In the Aerial Spraying Case Colombia maintained that its international legal obligation to conduct an EIA was no more stringent than its own domestic law, 30 which it said exempted the aerial spraying programme from conducting an EIA. 31 But this, in my view, is a misreading of Pulp Mills. The Court noted in 2010 that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. (at para. 205). This paragraph makes two important points. First, an EIA need not be specifically required by law, but can be required as part of the authorisation or permitting process. What matters is that some means exists to ensure that an EIA is carried out. Thus in Aerial Spraying, even if Colombia were correct to say that no EIA was required by the 1993 Law on the Environment, it was still the case that before authorising the spray programme the Environment Ministry had the power to require that an assessment of possible transboundary impacts be carried out. It was debarred from using that power for reasons of state, but the means to do so existed, and they would exist in most States even in the absence of a law on EIA. 32 Secondly, while the specific content of each EIA is for the state to determine, there must be an EIA and it must have regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment. The Court is not here saying that the content of an EIA is for the state to decide in its sole discretion. On the contrary, it is reflecting the views of the ILC and the arguments of the parties based on that commentary. The ILC 2001 Commentary contains the following explanation:.the specifics of what ought to be the content of assessment is left to the domestic laws of the State conducting such assessment. [fn omitted] For the purposes of article 7, however, such an assessment should contain an evaluation of the possible transboundary harmful impact of the activity. In order for the States likely to be affected to evaluate the risk to which they might be exposed, they need to know what possible harmful effects that activity might have on them..the assessment should include the effects of the activity not only on persons and property, but also on the environment of other States. The importance of the protection of the environment, independently of any harm to individual human beings or property is clearly recognized. 33 (emphasis added) 30 Law 99 of 1993; Colombia Rejoinder para Colombia Rejoinder, para See Chapter 4 of Ecuador s Reply and Chapter 4 of Colombia s Rejoinder. 33 ILC Report (2001) GAOR A/56/10, commentary to Article 7, at pp Article 7 provides: Any decision in respect of the authorization of an activity within the scope of the present articles shall, in particular, be based on 12

13 It is apparent from the ILC commentary that whatever else may be required by national law, international law requires at a minimum that an EIA assess possible effects on people, property and the environment of other states likely to be affected. If national law does not ensure that such an assessment is carried out for whatever reason - there is inevitably a breach of this obligation. In that eventuality, we can observe from Pulp Mills, Land Reclamation and Southern Bluefin Tuna that, in the absence of any inquiry process comparable to the Espoo Convention, provisional measures applications to international courts may be the best remedy available to a potentially affected State seeking to enforce the obligation to carry out a transboundary EIA. 34 In Pulp Mills, Argentina failed in its attempt to secure provisional measures from the ICJ once Uruguay showed that it had carried out an EIA, 35 but in Land Reclamation the ITLOS ordered the parties jointly to assess the risks and effects of the proposed works, while in Southern Bluefin Tuna the effect of its order was that catch quotas could only be increased by agreement after further studies of the state of the stock. The outcome in these cases suggests that if an EIA has not been undertaken and there is some evidence of a risk of significant harm to another state even if the risk is uncertain and the potential harm not necessarily irreparable an order requiring the parties to co-operate in prior assessment is likely to result even at the provisional measures stage. 4. Transboundary Application of Human Rights Law The third element of Ecuador s case was the alleged violation of the human rights of Ecuadoreans affected by the spraying. In this context Ecuador argued that spraying of toxic herbicides along the border had caused or would risk causing multiple types of harm within Ecuadorian territory: 36 a) effects on the health of the population b) damage to agricultural crops and effects on farm animals c) effects on forests, water supplies, and the environment an assessment of the possible transboundary harm caused by that activity, including any environmental impact assessment. 34 Southern Bluefin Tuna Cases (Provisional Measures) ITLOS 1999, Nos. 3&4, para 79; Land Reclamation by Singapore in and around the Straits of Johor (Provisional Measures) Case, ITLOS 2003, No. 12, para ICJ Reports 2006, p See Ecuador s ICJ application and UNHRC, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People (Rodolfo Stavenhagen): Mission to Ecuador, 25 April-4 May 2006, UN Doc A/HRC/4/32/Add.2, 28 Dec. 2006; UNHRC, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (Paul Hunt): Preliminary Note on Mission to Ecuador and Colombia, Addendum, UN Doc A/HRC/7/11/Add.3, 4 Mar

14 d) displacement of population in certain villages e) effects on the cultural life of indigenous peoples. At the most basic level Ecuador was using human rights law to help establish that harm of the kind identified by the ILC was likely to result from any resumption of herbicide spraying: *t+he harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States. 37 The ILC commentary notes that significant harm need not be serious or substantial but must be more than trivial. 38 Ecuador s argument was that there is harm to persons when there are significant effects on human health or on private life, that there is harm to property when there is significant harm to agricultural crops or domestic livestock, and that there is harm to private life when villages or homes have to be abandoned or when forest resources can no longer be utilized for subsistence lifestyles. We know from existing precedents that environmental harm includes harm to biological resources such as forests, flora and fauna, fish stocks, ecosystems, and the availability of unpolluted fresh water supplies. 39 But in no previous case has the applicant State sought to define harm to people and property by reference to human rights precedents. Yet this is an obvious analogy. The main focus of the human rights case law dealing with pollution has been the rights to life, private life, health, water, and property. 40 Pollution at a level which would constitute a violation of any of these rights will necessarily constitute significant harm for the purpose of establishing that an obligation of due diligence applies and that preventive measures should have been taken by the State. In many of these cases the harm is simply the risk implicit in living with pollution at levels that reduces air or water quality below accepted standards for human health. Thus in Dubetska and others v Ukraine, the European Court of Human Rights accepted that it was 37 ILC Report (2001) GAOR A/56/10, p.387 para. (4). 38 ILC Report (2001) GAOR A/56/10, p. 388, paras (4)-(7). 39 UN Compensation Commission, Report and Recommendations Concerning 3rdInstalment of F4 Claims (2003) paras 47-8; id, Report and Recommendations Concerning 5 th Instalment of F4 Claims (2006) paras 4-58, 82 [ Convention on Biological Diversity, Art. 3; 1992 Convention on the Transboundary Effects of Industrial Accidents, Article 1 (c); 1992 Convention on the Protection of Transboundary Watercourses and Lakes, Article 1 (2); 1993 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, Article 2 (7) and (10); 1982 UN Convention on the Law of the Sea, Arts. 145, 194 (5); 1997 UN Convention on the Non-Navigational Uses of International Watercourses, Art Öçkan and others v Turkey (46771/99), paras 14, 22, 50; Atanoasov v Bulgaria (2010) ECtHR, para 75; Dubetska and others v Ukraine (2011) ECtHR, paras 106-8; Lopez Ostra v. Spain [1994] 20 EHRR 277; Guerra v. Italy [1998] 26 EHRR 357; Fadeyeva v. Russia [2007] 45 EHRR 10; Öneryildiz v. Turkey [2005] 41 EHRR 20; Taskin v. Turkey [2006] 42 EHRR 50, paras ; Tatar v. Romania [2009] ECtHR, para 88; Budayeva v. Russia [2008] ECtHR; Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, AfCHPR, Communication 155/96 (2002); Maya indigenous community of the Toledo District v. Belize [2004] IACHR Case , Report No. 40/04, OEA/Ser.L/V/II.122 Doc. 5 rev

15 unable to establish quantifiable harm to the applicants, but it nevertheless agreed that living in an area marked by pollution in excess of minimum standards meant that the applicants had been unnecessarily exposed to increased health risks. 41 The same is true at the interstate level in cases like Pulp Mills, where compliance with water quality standards became the main determinant of whether there was any risk of significant harm to the river. In Aerial Spraying Ecuador also made use of human rights law in a more ambitious and arguably more questionable way. Its key argument was that the human rights obligations applicable to the parties applied equally to transboundary pollution and to pollution whose effects were purely domestic. This raises the question whether human rights obligations have extraterritorial effect. There are two arguments against. The first is that the problem is properly addressed by international law at an interstate level, not at the level of human rights law. On this view the relevant lex specialis is the customary international law on prevention and control of transboundary harm discussed above, not international human rights law. However, a more nuanced approach to such arguments is evident in the case law, and it is far from clear that the lex specialis principle operates in this way. 42 A mutually exclusive relationship between human rights law and general international law on transboundary and global environmental protection is neither consistent with the evolution of international environmental law as a whole nor with contemporary developments in international human rights law, which do in some circumstances recognise extraterritorial application. A more compelling point is that the extraterritorial application of human rights law has normally arisen in the context of occupied territory or cross-border activities by State agents. 43 The essential principle of these cases is that the State has exercised jurisdiction or control over persons or territory abroad. These precedents bear little resemblance to transboundary pollution. Although in transboundary pollution cases the State does exercise jurisdiction and control over the polluting activity located within its territory, it does not follow that it also exercises jurisdiction or control over affected persons or territory abroad in the manner required by the case law. 41 Dubetska and others v Ukraine (2011) ECtHR, paras See also Fadeyeva v. Russia [2007] 45 EHRR See Nuclear Weapons Advisory Opinion, 1996 ICJ Reports 226, paras ; I. Sinclair, Vienna Convention on the Law of Treaties (Manchester, 1982), 96; J.Pauwelyn, Conflict of Norms in International Law (Cambridge, 2003), ; ILC, Report of the Study Group on Fragmentation of International Law, A/CN.4/L.682(2006), paras Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Reports 136, paras. 109, 112; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Provisional Measures Order, 2008 ICJ Reports 386, para. 109; Ecuador v. Colombia (Admissibility) [2010] IACHR Report No.112/10, paras ; Alejandre, Costa, de la Pena y Morales v. Republica de Cuba [1999] IACHR Report No. 86/99, para.23; Coard v. United States [1999] IACHR Report 109/99, para. 37; Al-Skeini v. United Kingdom [2011] ECtHR, paras ; Öcalan v. Turkey [2005] 41 EHRR 985, para. 91; Ilascu v. Moldova and Russia [2005] 40 EHRR 46, paras , ; Issa et al. v Turkey [2004] 41 EHRR 567, para. 71; Cyprus v. Turkey [2002] 35 EHRR 30, para. 78. See also General Comment No.31 adopted by the UN Committee for Human Rights, UN Doc. HRI/GEN/1/Rev.7, 192 at 194 et seq., para

16 The counter-arguments in favour of limited transboundary application of human rights law in pollution cases are complex, and cannot easily be summarised in the form required for this short paper. 44 But the main points are as follows. First, where it is possible to take effective measures to prevent or mitigate transboundary harm to human rights then the argument that the state has no obligation to do so merely because the harm is extraterritorial is not a compelling one. On the contrary, in keeping with the principle of non-discrimination, the environmental impact of activities in one country on the right to life, private life or property in other countries should be taken into account and given due weight in the decision-making process. 45 There is no principled basis for suggesting that the outcome of cases such as Hatton 46 should depend on whether those affected by excessive noise or air pollution are in the same country, or in other countries. 47 It seems entirely consistent with the case-law and the living instrument conception of human rights treaties to conclude that a State party must balance the rights of persons in other States against its own economic benefit, and must adopt and enforce environmental protection laws for their benefit, as well as for the protection of its own population. In this context the State is most likely to violate the human rights of those affected extraterritorially if it does not permit them equal access to environmental information and participation in EIA permitting procedures, or if it denies access to adequate and effective remedies within its own legal system. 48 Secondly, while it is less plausible to say that the polluting state controls the territory of the state affected by pollution, 49 it is entirely plausible to conclude that the victims of transboundary pollution fall within the jurisdiction of the polluting state in the most straightforward sense of legal jurisdiction. The jurisdiction of national courts to hear cases 44 But they are developed in Boyle, Human Rights and the Environment: Where Next? 23 European JIL (2012) pp As they would have to be in transboundary environmental impact assessments: see 1991 Espoo Convention on EIA in a Transboundary Context, Article 3(8). 46 Hatton v. UK [2003] ECtHR (Grand Chamber). 47 ILA, Committee on Transnational Enforcement of Environmental Law, Final Report, Rule 2, and commentary, Report of 72 nd Conference (Toronto, 2006); OECD Council Recommendations and authors cited supra, note 120, and J.Knox, Myth and Reality of Transboundary Environmental Impact Assessment (2002) 96 AJIL See ILC, Draft principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Report of the ILC 2006, GAOR A/61/10, paras Principle 6(1) sets out the core obligation: States shall provide their domestic judicial and administrative bodies with the necessary jurisdiction and competence and ensure that these bodies have prompt, adequate and effective remedies available in the event of transboundary damage caused by hazardous activities located within their territory or otherwise under their jurisdiction or control. See also Articles 3(9) and 9(4), 1998 Aarhus Convention. 49 But significant transboundary pollution is arguably a violation of the permanent sovereignty of a state (and its people) over their own natural resources, and in a serious case might amount to a de facto expropriation: see the preamble to the 2001 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC on its 53rd Session, GAOR, A/56/10 (2001), and SERAC v. Nigeria (2002) ACHPR Comm. 155/96 (2002) para

17 involving transboundary harm to extraterritorial plaintiffs is well-established in private international law and in environmental liability conventions. 50 The principle of nondiscrimination has also been adopted by the International Law Commission in its articles on transboundary harm, 51 by the UNECE in its environmental conventions, 52 and by MERCOSUR. 53 The IACtHR has also held that the fundamental principle of equality and non-discrimination constitute a part of general international law There is little point requiring that national remedies be made available to transboundary claimants if they cannot also resort to international or regional human rights law when necessary to compel the polluting state to enforce its own court orders or laws or to assess and take adequate account of the harmful effects of activities which it authorises and regulates. That is exactly how domestic claimants have successfully used human rights law in environmental cases. 55 Thus, although it may be questionable how far victims of transboundary air pollution can bring human rights proceedings against a foreign state based on substantive violation of their right to life, private life, or property, it is much easier to see that in cases where those rights are affected they will be entitled to transboundary access to environmental information, participation in EIA and other authorisation procedures, and equal access to justice in national courts. In Europe those rights for transboundary claimants are already recognised by the Arhus Convention. 56 In Asia regional human rights law is less well developed, although there is now an 50 See 2000 EC Regulation on Jurisdiction and Judgments, Article 5; 2004 Kiev Protocol on Civil Liability and Compensation, Article 13; 1993 Convention on Civil Liability for Damage to the Environment, Article 19; 1997 Protocol to the Vienna Convention on Civil Liability for Nuclear Damage, Article XI; 2004 Protocol to the Paris Convention on Third Party Liability in the Field of Nuclear Energy, Article Article 15 prohibits discrimination based on nationality, residence, or place of injury in granting access to judicial or other procedures, or compensation, in cases of significant transboundary harm: see ILC Report (2001) GAOR A/56/10, See to the same effect the ILC s 2006 Principles on Allocation of Loss, Principle 8(2), and the 1997 UN Convention on International Watercourses, Article In addition to the Aarhus Convention, it is listed in the preamble of the 1992 Convention on the Transboundary Effects of Industrial Accidents among 'principles of international law and custom'. See also 1991 Convention on Environmental Impact Assessment in a Transboundary Context, Article 2(6); 1992 Convention on the Transboundary Effects of Industrial Accidents, Article Las Leñas Protocol on Jurisdictional Cooperation & Assistance, Ch III, Article 3. The position in NAFTA is less clear. Transboundary plaintiffs appear to have equality of standing under some US environmental statutes: see Trans Alaska Pipeline Authorisation Act, 43 USC 1635(c)(1) of which allows any person or entity, public or private, including those resident in Canada to invoke the Act's liability provisions. Article 6 of the 1993 North American Agreement on Environmental Co-operation, which provides for "interested persons" to have access to legal remedies for violation of environmental laws, may also apply to transboundary litigants. See generally S.Hsu and A.Parrish, Litigating Canada-U.S. Transboundary Harm (2007) 48 Virginia JIL See Juridical Situation and Rights of Undocumented Migrants (17 September 2003), IACtHR, OC-18/03, para Supra, note Article 3(9) requires that the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered 17

18 ASEAN Human Rights Declaration, and national law in some Asian jurisdictions is very sophisticated in the application of human rights law in environmental cases. 57 In most legal systems foreign polluters can also be sued before national courts in jurisdictions affected by the pollution, regardless of whether there has been any breach of international law or human rights. 58 Whether this may be a useful a remedy will depend on the particular legal system, and it is difficult to generalise about Asia as a whole. 5. Conclusions Whatever the merits of Ecuador s arguments, the Aerial Spraying Case demonstrates that interstate litigation can work effectively to end transboundary pollution. The settlement also brought to an end a dispute that had upset relations between two governments who were normally friendly and cooperative. It shows the kind of arguments that can be made, and the evidence needed to make those arguments effectively. Litigation is not an easy option. It is not cheap, it takes time. It requires good lawyers, and sound expert evidence. But if it works, the expense and the effort required will be worthwhile. The alternative is, of course, to negotiate, either bilaterally or multilaterally. That brings me more briefly to my second paradigm, multilateral regulatory regimes. II. MULTILATERAL REGULATORY REGIMES FOR TRANSBOUNDARY AIR POLLUTION 59 The 1979 Geneva Convention on Long Range Transboundary Air Pollution remains the only major regional multilateral agreement devoted to the regulation and control of transboundary air pollution. 60 It treats the European air mass as a shared problem requiring co-ordination of pollution control measures and common emission standards. Its purpose is thus to prevent, reduce, and control transboundary air pollution, both from new and existing sources, and it contains no provision on liability for air pollution damage, whether under international law or through civil proceedings. The treaty came into force in 1983, and now has over fifty northern hemisphere parties in Europe, including all the major polluter states. Canada and the Unites States have also ratified, although they have stayed out of the SO 2 protocols. 61 seat or an effective centre of its activities. See UNECE, The Aarhus Convention-An Implementation Guide (New York, 2000), See Boer and Boyle, Human Rights and the Environment, Report of the 13 th Asia-Europe Informal Seminar on Human Rights (2014). 58 See generally C.McLachlan and P.Nygh (eds) Transnational Tort Litigation (Oxford, 1996) especially Chs 1, 4 and This section is based on Birnie, Boyle and Redgwell, International Law and the Environment (3 rd edn, 2009), Ch See UNECE, Handbook for the 1979 Convention on LRTAP and its Protocols (New York, 2004). 61 But see the 1991 Agreement Between the Government of the United States and the Government of Canada on Air Quality. 18