Thecaseofconvenonson$ transboundary$ polluoninEurope. · 2017-07-13 ·...
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The principle and duty to cooperate. The case of conven5ons on transboundary pollu5on in Europe. Hans Chris*an Bugge Professor emeritus of Environmental Law University of Oslo
Transcript of Thecaseofconvenonson$ transboundary$ polluoninEurope. · 2017-07-13 ·...
The principle and duty to cooperate.
The case of conven5ons on transboundary pollu5on in Europe.
Hans Chris*an Bugge Professor emeritus of Environmental Law
University of Oslo
Overview
1. Duty of coopera*on as a general principle in interna*onal environmental law.
2. The prac*cal applica*on: mul*lateral agreements.
3. Two examples from Europe: • Conven*on on Long Range Transboundary Air
Pollu*on (CLRTAP) • Conven*on on the Protec*on of the Marine
Environment of the North-‐East Atlan*c (OSPAR).
The duty to cooperate is recognized as a general principle of interna5onal environmental law
It is laid down in «so> law» instruments such as: • 1972 Stockholm Declara*on (principle 24), • 1992 Rio Declara*on (principles 7, 9, 14 and 27) … in a number of «hard law» conven*ons, for example in the 1982 UN Law of the Sea Conven*on, Ar*cle 197. “States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent interna*onal organiza*ons, in formula*ng and elabora*ng interna*onal rules, standards and recommended prac*ces and procedures … for the protec*on and preserva*on of the marine environment, taking into account characteris*c regional features.” .. and in ICJ cases on interna*onal environmental disputes.
The duty to cooperate is an essen5al part of State responsibility for transboundary pollu5on… …since the general «no harm rule» is complex and may be difficult to apply in important cases of transboundary pollu*on: • Transboundary pollu*on has o^en mul*ple and diffuse causes
and sources, o^en impossible to iden*fy individually. • Causes/effects rela*onships are o^en complex and uncertain.
• States are o^en both causing the pollu*on and vic*m of the pollu*on; all contribute to the problem -‐ although to a varying degree.
Coopera5on between states is simply necessary in order to solve many -‐ if not most -‐ transboundary pollu5on problems.
The duty to cooperate both builds on and expands the duty not to harm other states (the «no harm rule»).
Some common elements and overlaps between the two: • The principle of «good neighbourliness» • the duty to consult with other states in order to prevent or
reduce transboundary harm, • the duty to no5fy and exchange relevant informa5on on
possible hazardous ac*vi*es and risks, and emergencies
• the duty to carry out cross border environmental impact assessments if risk of significant cross border effects.
Transboundary pollu5on cannot be properly
prevented or abated unless all relevant states…
…. Agree on the problem and its main causes. – Agree on common goals and principles to solve the problem.
– Agree to take coordinated measures to reduce emissions.
– Agree to exchange scien5fic and technological knowledge and provide mutual support in the work.
In other words…
… it requires a «package» -‐ or «cluster» -‐ of closely interrelated measures and commitments. …. This requires most o^en a mul5lateral agreement … …. with legal force, but at the same *me flexible and dynamic …. and adapted to the situa5on in the par5cipa5ng countries. …. For many transboundary pollu5on problems, a regional
agreement is the relevant solu5on.
A key issue: Equal or differen5ated obliga5ons?
Differen5a5ons may be reasonable and necessary… …. in order to get «all on board», and to bring about effec5ve – rather than formal – equality among states which are de facto unequal with regard to relevant condi5ons and capabili5es. Principle of common but differen5ated responsibili5es: Differen*a*on between «developed» and «developing» countries.
1992 Rio principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contribu*ons to global environmental degrada*on, States have common but differen5ated responsibili5es.
The developed countries acknowledge the responsibility that they bear in the interna*onal pursuit of sustainable development in view of the pressures their socie*es place on the global environment and of the technologies and financial resources they command.
But: The dis5nc5on between “developed” and “developing” countries is increasingly blurred and problema5c.
There may (and should) be differen*a*ons within these two groups based on differences in natural condi*ons, technical status and cost of abatement measures, etc.; …and differen*a*on in order to achieve cost-‐efficient pollu5on abatement. Several ways to differen*ate: • different obliga*ons, «grace periods», etc. • «explicit» and «implicit» differen*a*on. Differen5a5on poses dilemmas: In order to have equal compe**on -‐ «a level playing field» -‐ in interna*onal trade and industry some emission standards and product standards have to be harmonized and uniform.
1979 UN/ECE Geneva Conven5on on Long Range Transboundary Air Pollu5on (LRTAP)
The «acid rain» problem in Europe (and North America) Acidifica*on of lakes in «Forest death» in
Norway and Sweden Central Europe Norway: 5000 local fish species lost
Long range, transboundary, transport of pollutants
State responsibility based on the «no harm rule»? In the 1970s: 90 % of the sulphur and 80 % of the nitrogen deposited in Norway came from other European countries (mainly West and East Germany and Poland). Could Norway have started legal proceedings against these countries on the basis of the «no harm rule»? Probably yes … LRTAP ar*cle 5 recognizes that some states are main sources and some states are main vic*ms, but -‐ in a footnote -‐ explicitly does not contain a rule on State liability as to damage. But … One (of several) problems here: Norway was itself contribu*ng to the problem with na*onal emissions of SO2.
LRTAP: main elements Framework conven5on with so^ obliga*ons from the start. Precise obliga*ons laid down in later protocols. Now 51 par*es including EU, USA, Canada and former Soviet republics. Started with coopera5on in research to iden*fy causes and effects, and close coopera5on between science and policy. (The European monitoring and evalua*on programme – EMEP).
1985: First protocol with precise and equal target for all: 30 % reduc5on of SO2 emission un5l 1995 for all par5es.
From 1988: Targets based on the «cri,cal load» approach. The target to keep -‐ or bring -‐ the pollu*on within nature’s tolerance level: “Cri5cal load”: “The maximum amount of deposi5on of pollutants an ecosystem can receive in the long term without significant damage.» This varies considerably from one region to another in Europe according to soil, geology and other condi*ons.
The «integrated assessment model»:
From 1995: Differen5a5on of states’ emission reduc5on targets based on • Assessment of «cri5cal loads» in the different countries:
na*onal effects of pollutants on forests, soil and water, • mapping of major emission sources • meteorological condi5ons and dispersion and deposit of
pollutants in the various geographical areas • possible abatement measures and their costs and benefits.
Based on this complex model and further nego*a*ons the result is great differences in emission reduc5on commitments between countries for some substances:
An example: Reduc*on of SO2 emissions from 1980 to 2005: Germany: 87 % reduc*on Portugal: 3 % reduc*on This makes it possible to reach the targets in a cost-‐ efficient way for Europe as a whole.
Other main elements
• Gradual harmoniza5on of measures to reduce emissions from important sources, through limit values based on best available techniques (for large combus*on plants, electricity produc*on, som industrial processes, etc.)
• Also agreed air quality standards to be reached, mainly to improve health.
• Regular repor*ng and overview of the par*es’ compliance, and an open, suppor*ve and «non-‐confronta5onal» compliance mechanism through a special Implementa*on commimee.
LRTAP development • 8 binding protocols (from 1985 to 1999) lay down
na*onal mandatory emission ceilings for hazardous substances within a *me limit:
• (SO2, NOx, VOC, heavy metals, Persistent Organic Pollutants (POP), Eutrophica*on, ground-‐level ozone).
• They have been gradually strengthened over *me, the
latest revision in 2012 with targets for 2020.
• These are decisive for na5onal air pollu5on policy in most countries, (in EU through EU direc*ves in addi*on)
(But: Varying degree of ra*fica*ons and compliance.)
LRTAP results: over 50 % reduc5on of emissions
(but s5ll a way to go…)
Areas exceeding cri5cal loads of acidifica5on 1980-‐2010
The acidity situa5on in Southern Norway 1985-‐2015:
IIASA Regional Air Pollu5on INforma5on and Simula5on (RAINS-‐Asia) assesses the sensi5vity of various ecosystems
(their "cri5cal loads") to acidic deposi5on in Asia
RAINS-‐Asia: Exceedance of Cri5cal Loads
OSPAR
1992 Conven5on for the protec5on of the Marine Environment in the North-‐East Atlan5c
1992 OSPAR: North East Atlan5c, na5onal EEZ
boundaries
North-‐East Atlan5c
Marine and coastal ecosystems in North-‐East Atlan*c provide a wide range of goods and services, of great economic and social value. The ecology varies widely within the area.
Environmental problems in the North-‐East Atlan5c
• High levels of some toxic substances • Oil pollu*on • Eutrophica*on (in parts) • Ocean acidifica*on • Limer, plas*c waste, etc. • Declining fish stocks, overfishing • Declining stocks of sea birds • Declining popula*ons of marine mammals (seals) • Destroyed/threatened coral reefs
OSPAR : Eutrophica5on status 2007
Stomach content of sea gull (plas5c bits)
OSPAR: Main elements
Origins: 1972 Oslo Conven*on on dumping and 1974 Paris Conven*on on pollu*on from land-‐based sources. 16 State par*es. Managed by OSPAR Commission.
• Far-‐reaching: Includes also discharge to rivers and estuaries (freshwater pollu*on), and air pollu*on affec*ng the sea.
• A framework conven5on with annexes.
• Lays down the precau5onary principle, principle of best available techniques. Aiming at an ecosystem approach.
• A broad programme of coopera5on on monitoring and research of the status of the marine environment.
OSPAR implementa5on through… • common targets and strategies, • legally binding decisions, and recommenda5ons (consensus) • Gradual strengthening of targets on hazardous substances, the
latest is the «one genera5on cessa5on target» (1995-‐2020).
• Harmonizing emission limits for various industrial ac5vi5es based on agreement of «best available techniques».
• Adop5ng Ecological Quality Objec5ves for marine biodiversity,
and establishing a network of marine protected areas.
OSPAR Marine Protected Areas
OSPAR Quality status report 2010:
Posi5ve results, but s5ll a long way to go…..
Eutrophica5on: 50 % reduc*on in phosphorus discharges, but nitrogen discharges are s*ll a main problem, in par*cular from agriculture. Environmental concentra5ons of chemicals have generally fallen, but are s5ll above acceptable concentra5ons in many coastal areas. Oil discharges from off-‐shore ac*vity have fallen by 20%. Fish stocks: Exploita*on of many stocks con*nues to be beyond the levels they can sustain. Lesson: A coherent, long term commitment is necessary!
To sum up the principle and duty to cooperate:
Coopera5on is necessary to solve most transboundary pollu5on problems. It implies a «package» -‐ or «cluster» -‐ of mutually agreed and closely interrelated and consistent measures and commitments: • Coopera5on in research to iden*fy the problems and
possible solu*ons, monitor development • Agreeing on common objec5ves, principles and strategies.
• Coopera5on on technological development to reduce emissions from various sources.
• Harmoniza5on of na5onal rules and measures, in par*cular emission levels for main sources, based on commonly agreed, «best available», technology,
• Exchange and sharing of knowledge and experience,
• Monitoring, repor*ng and mutual support and assistance in compliance work.
• Long term commitment and «step by step» development.
Thank you!
