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April 3, 2004

Transboundary Atmospheric Pollution
Legal problems and remedies

Abu Hena Mostofa Kamal

The material wealth of the Industrial Revolution brought with it a less desirable side effect - air pollution .In the last twenty years the dimensions of the air pollution problem have changed considerably. High smokestacks and unfavourable meteorological conditions plus increased pollution levels have made a local problem into transboundary one. Thus air pollution challenges nations sharing common borders to balance economic needs with protecting citizens and the environment across jurisdictions. Transboundary air pollution is a particular problem for pollutants that are not easily destroyed or react in the atmosphere to form secondary pollutant. In many instances transboundary air pollution is not limited to the territory of just one state; very often it is spread to an undetermined number of sates or other territories beyond the limits of the territory where the pollution originated.

The term 'transboundary' is inextricably bound up with the term 'jurisdiction' and 'control'. Therefore, the main international legal problems those are common to each 'long range transboundary air pollution' that -

(a) Each and every pollution has its origin within the area under the jurisdiction of one state and
(b) Its deleterious effects are extended beyond the limits of that jurisdiction.

However, this view is purely based on the bilateral conception of transboundary environmental interference. But there is an alternative view .The alternative view maintains that the occurrence of environmental interference in international areas is also included in the term of 'transboundary', irrespective of whether such interference has its origin in the territory of a state or in an international area. However, an occupying power can be held liable if it is in physical control of the territories it has unlawfully invaded and occupied. Thus, Iraq has been held liable for setting fire of oil wells and causing environmental damages during the occupation of Kuwait in 1990-1991.

It is well known that courts of law had never faced any difficulties in dealing with damages caused by air pollution when both the source of pollution and damaged property are located within their respective jurisdiction. But the problem becomes more complicated when air pollution crosses the boundaries between states. The existing principles of international law applicable to the transboundary pollution have mainly developed on the basis of bilateral relations between neighbouring states and laws relating to this matter are still in incubation-pot. However, nobody would deny that some of the principles, applicable in this field have been "taken over" from ''general principles of law". Thus, the award in the notorious Trail Smelter case based on the principle 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 . . .", is a principle of international law as well as of the law of the United States. Interestingly enough, the same maxim was used in the 'St.Helen's case (in UK). However, in the precedent-setting 'Smelter' case, US government sued the Canadian smelter Company, resulted in the doctrine that in cases of transborder damage, the polluter must pay.

The arbitration arose from claims involving transboundary air pollution by a smelter factory located in Canada about 20 kilometres north of the US boundary. The factory was roasting sulphur-bearing ores and emitting sulphur dioxide fumes into the air. Thus caused damage to privately owned agricultural and forestlands near the township of Northport USA. After both the Canadian and US Governments presented their evidence to the Tribunal in January of 1938, the Tribunal's decided that the Government of Canada should pay the United States US $78,000 for damage. The tribunal had also decided that the Trail Smelter should refrain from causing any future environmental damage. However, the International Law Association (ILA) and the Institut de Droit International (IDI) have considered this matter later and both of the organisations have adopted resolutions on the subject.

The above discussion make it clear that general principles of international environmental law provides strong support for the view that customary international law prohibits states from causing significant environmental damage from transboundary atmospheric pollution. However, international treaty practice dealing with long-range transboundary pollution is not yet abundant and applicable multilateral treaties are also not numerous. Their provisions are very often of a hortatory character. But, as long as the courts, compare national norms and let themselves be guided by the more favourable law principle, it seems possible to reach an adequate judgement anyhow. However, the rules of both international and national law are not robust enough to protect the injured individual. Therefore, a rule is needed mainly to compensate for serious harm. For this purpose more detailed standards are required to implement a fully preventive approach. However, now we are going to point out few problems that courts are facing in order to provide remedies for long-distance offences. These are as follows:

Problem of burden of proof
Within national arena of laws, only facts in narrow sense have to be proved and this rule is based on 'iura novit curia'-principle. However, this principle is not applicable in the settlement of dispute under international environmental law and international public law. But according to experts, this problem can be solved by using the principle de lege ferenda .It should be mentioned, in this case, scientific and technical evidence is necessary.

Problem of determining damage
Under international law of torts, all injuries inflicted are to be compensated in all possible form ( restitutio in integrum ) . Where material damage is inflected, a status quo ante has to be restored. "Since it is often impossible to restore the impaired section of the environment, a secondary compensation claim must be acknowledged besides the primary restitutio in integrum." However, it should be noted that most problems regarding restitution (primarily arise from the analogous claims under international law and private law) still remained unsolved.

Problems regarding 'equal access' policy
A transboundary claimants should be accorded equal access and non-discriminatory treatment in the prevention, reduction, and control of transboundary harm. But the equal access policy has not become part of international law yet. International policy declarations, including the Stockholm and Rio Declarations, do not explicitly refer to equal access or non-discrimination.

Problem of the 'Choice of Law' doctrine
A claim for transboundary environmental damage may involve events and persons in several countries .The question which legal system should determine liability and other issues, is always produce unpredictability, ambiguity, and increase the expense of transboundary litigation.

Procedural problems of legal protection
According to the international law, an injured individual can only claim compensation from a foreign state by the way of diplomatic protection through his /her own state. Such type claim is termed as 'espousal claim'. It is still uncertain whether it is possible for an injured individual to use this 'mechanism of ambassadorial shield' with out seeking national legal remedies. These and numerous other questions require answers.

Apart from legal issues, it is well known that any measures concerning transboundary air pollution control depend on international co-operation. The first response to combat air pollution internationally was the UN Economic Commission for Europe's 1979 Convention on Long-Range Transboundary Air Pollution. The ECE convention is the first international agreement adopted in this field. But this convention and other international treaties do not contain binding provisions prescribing concrete norms for abatement and enforcement measures and it fails to provide guidelines for the settlement of disputes.

Abu Hena Mostofa Kamal is studying Bar Vocational Course at the University of Northumbria,UK.