Legal Responses to Dust StormDubai Knowledge Village, Monday February 9, 2015

• There are different types of airborne pollution that have not yet have been adequately analysed although they are not a new phenomenon, such as haze; brown cloud; and Saharan dust pollution. The most visible impact of haze/dust pollution is the haze, a layer of pollutants and particles from biomass burning and industrial emissions. This cloud of pollution at times has a brownish colour (e.g., the Denver Brown Cloud) and this brown cloud phenomenon is a common feature of industrial and rural regions around the world. There different sources of this type of pollution: the mostly urban (fossil fuel related); rural (biomass burning related). It is transformed into a regional haze (or cloud) that can affect an entire continent.

The United Nations Environment Programme (UNEP) has been supporting a project called Atmospheric Brown Cloud (‘ABC’) . Five regional hotspots for ABCs have been identified. These are:

East Asia, covering eastern China;

The Indo-Gangetic plains in South Asia from the northwest and northeast regions of eastern Pakistan across India to Bangladesh and Myanmar;

Southeast Asia, covering Cambodia, Indonesia, Thailand, and Vietnam;

Southern Africa extending southwards from sub-Saharan Africa into Angola, Zambia and Zimbabwe; and

The Amazon basin in South America.

• Saharan dust is a mixture of sand and dust from Sahara. Once it is lifted from the ground by strong winds, clouds of dust can reach very high altitudes and be transported worldwide, covering thousands of miles. Gale force wind conditions in the Sahara of over 40 miles per hour. In April 2014 a large amount of sand and dust was swept up by storm winds in the desert, around 2000 miles away in northwest Africa. The airborne particles were blown north to the UK where they combined with warm air and were deposited during showers. Saharan dust is also a contributing factor to air quality in addition to pollution levels and weather conditions. http://www.metoffice.gov.uk/learning/learn-about-the-weather/weather-phenomena/sahara-dust

• In the view of this presenter, Saharan dust pollution is part and parcel of transboundary air pollution Therefore, the foregoing analysis will be based on relevant customary international law and treaties.

• First of all there is an obligation of the prevention of transboundary air pollution which is expressed by the principle of sic utero tuo ut alienum non laedas, which can translated as meaning ‘use your own property so as not to injure that of another.‘

• This principle was further elaborated in the 1941 Trail Smelter arbitration (Canada v. United States), Reports of International Arbitral

Awards, vol. III p. 1965).

• [U]nder the principles of international law, as well as of the law of the United States, 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, when the case is of serious consequence and the injury is established by clear and convincing evidence.

The same principle was codified in Arts. 21 and 2 of the 1972 Stockholm Declaration and the 1992 Rio Declaration:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

• Principle 21 if the Stockholm Declaration was confirmed by the International Court of Justice in the 1966 Advisory Opinion concerning Legality of the Threat or Use of Nuclear Weapons as codifying the norm of customary international law (Legality of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996, p. 241–242, para. 29). There are, however, legal characteristics of this principle that make it perhaps not very well suited in the context of transboundary air pollution. The principle of sic utero tuo is: reactive; contemporary environmental law is better possibly reflected by: the precautionary principle.

• Under sic utero tuo principle (as well Principles 21 and 2) obligations of States are the type of the due diligence obligations.

• This is an obligation of conduct which according to the rules of State responsibility, it leaves a room for States to determine within their capabilities, adoption of appropriate measures with a view of preventing the transboundary damage.

• The notion and contents of the due diligence change with the passage of time (as it was noted by the Seabed Dispute Chamber of the International Tribunal for Law of Sea (ITLOS) in the 2011 Advisory Opinion, Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, 11 February 2011, 36, para. 117). Such a view was also adopted by the International law Commission (ILC) in its Commentaries to Art. 3 to the of the ILC ’s Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, para. 11)

• In transboundary air pollution, with multiple actors: causation is very difficult to establish;

• The long –distance pollution also may result it difficulties relating to evidence; therefore;

• There are difficulties establishing State responsibility. • These Complex issues indicate: • that the principle sic uter tuo ut alienum non leadas and;• corresponding obligations included in Principles 21 of the Stockholm

Declaration and 2 of the Rio Declaration are not the best recommended in cases of transboundary air pollution.

• Since, as it was above- analysed, these principles are part and parcel of customary international law, the usefulness of this sources of international law in relation of transboundary air pollution can doubted.

• The Conventional Rules • 1. ECE The 1979 Convention on Long-Range Transboundary Air Pollution• (it is a regional European Convention with a very wide participation such as Central Asian Republics,

over 50 States).

• ‘ [i]t has, over the years, served as a bridge between different political systems and as a factor of stability in years of political change. It has substantially contributed to the development of international environmental law and has created the essential framework for controlling and reducing the damage to human health and the environment caused by transboundary air pollution. ‘It is a successful example of what can be achieved through intergovernmental cooperation’ http://www.unece.org/env/lrtap/lrtap_h1.html).

• The 1979 ECE Convention defines the long –range transboundary air pollution in the following way: it ‘ means air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.’ The definition in this Article clearly indicates that the pollution type covered in this Convention can relates to multiple actors, and is not only relevant in a bilateral context such as the Trail Smelter arbitration. Articles 2, 3, 4 and 5 of the 1979 ECE Convention include ‘fundamental principles’ in relation to long-range transboundary air pollution.

• More precise obligations are contained in the Protocols to the ECE Convention

• The practical application of the Convention can encounter some difficulties;

• (i) the weakness of this Convention is that it contains no concrete commitments to specific reduction in transboundary air pollution;

• (ii) the language of some provision of the Convention is weak: it uses the terms ‘endeavour’ and/or ‘as far as possible.’ However, the 1979 ECE Convention itself does not endeavour to eliminate sources of long-range transboundary air pollution. (Article 6 of the Convention only requires the parties to develop ‘policies and strategies’ and ‘control measures’ to the extent that these are economically feasible);

• (iii) Contracting parties have a wide discretion when determining appropriate measures for reducing air pollution;

• (iv) the ascertaining of responsibility of States under this Convention is complicated where multiple States are involved in long-range transboundary air pollution

• It may be said, however, that:• the general obligations of the Convention, such as exchange of

information; monitoring; consultations are obligations are very valuable in starting a framework of the cooperation. They also (it may be said) have been crystallised in norms of customary international law, as indicated by the practice of States - and the opinio juris.

• Therefore, States have two options, in combating dust pollution :• (i) they can start by implementing general provisions of the ECE

Convention (which are CIL), such as cooperation or monitoring (preferable ); or

• (ii) follow the pattern set by the ECE Convention and conclude similar Convention and Protocols (this option takes a long time to establish and is not very practical)

• The 1991 UN ECE Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention)

• The Espoo (EIA) Convention sets out the obligations of Parties to assess the environmental impact of certain activities at an early stage of planning. It also lays down the general obligation of States to notify and consult each other on all major projects under consideration that are likely to have a significant adverse environmental impact across boundaries. At present, there are 45 States parties to the Convention and it includes Central Asian Republics and Canada and the EU.

• The Espoo Convention defines an EIA as:• ‘a national procedure for evaluating the likely impact of a proposed

activity on the environment’ (Article 1(vi)) and defines the term ‘impact’ as ‘any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors’ (Article 1(vii).

• Article 2(2) requires each party to ‘take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II’ (Article 2 (6).

• (In 2003 Protocol on Strategic Environmental Assessment was adopted. This Protocol requires the parties to carry out a strategic environmental assessment, at much earlier in the decision-making process than in relation to project EIA).

• The ICJ in the 2010 Pulp Mills on the River Uruguay case, considered that a requirement to undertake an EIA is part of general international law (Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, p. 83, para. 204), observing, however, that the content of EIA varies and is not part and parcel of the CIL The same view was expressed by the by the Seabed Disputes Chamber of ITLOS in its 2011 Advisory Opinion, Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area).

• ICJ stated that: ‘ it is for each State to determine in its domestic legislation or in the authorisation 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 (p. 83, para. 205) .

• The Espoo Convention contains no explicit obligation to apply the precautionary approach or principle. By identifying potential risks, however, an effective EIA will assist decision-makers in determining whether the precautionary action must be taken. Identifying potential risks presupposed the application of the precautionary principle. From this point of view, it can be said that an EIA and the precautionary approach are integrally inter-linked.

• The EIA is a fundamental principle of environmental protection and part and parcel of IEL. It is an attractive concept. However, its applicability in case of Saharan dust is questionable as EIA is applicable to planned activities and Saharan dust pollution is a natural phenomenon.

• 2002 ASEAN Agreement on Transboundary Haze Pollution.• The Governments of the ten ASEAN Member Countries signed the ASEAN

Agreement on Transboundary Haze Pollution on 10 June 2002 in Kuala Lumpur, Malaysia. The Agreement is the first regional arrangement in the world that binds a group of contiguous states to tackle transboundary haze pollution resulting from land and forest fires. It has also been considered as a global role model for the tackling of transboundary issues. This is a regional agreement but considering a similar subject-matter to the haze pollution it is useful to analyse its provisions.

•

• ‘The objective of this Agreement is to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, through concerted national efforts and intensified regional and international co-operation. This should be pursued in the overall context of sustainable development and in accordance with the provisions of this Agreement.’ (Article 2).

• The Agreement is based on the following principles (Article 3): • (1) ‘The Parties have, in accordance with the Charter of the United Nations

and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment and harm to human health of other States or of areas beyond the limits of national jurisdiction (mirroring Principles 21 and 2 and of the Stockholm and Rio Declarations, a customary international law norm);

• (2) The Parties shall, in the spirit of solidarity and partnership and in accordance with their respective needs, capabilities and situations, strengthen co-operation and co-ordination to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated

• (mirroring Principle 7 (common and differentiated responsibilities)’• (3) The Parties should take precautionary measures to anticipate, prevent

and monitor tranboundary haze pollution as a result of land and/or forest fires which should be mitigated, to minimise its adverse effects. Where there are threats of serious or irreversible damage from transboundary haze pollution, even without full scientific certainty, precautionary measures shall be taken by Parties concerned

• (mirroring Principle 15 of the Rio Declaration);.

• (4). The Parties should manage and use their natural resources, including forest and land resources, in an ecologically sound and sustainable manner (the Principle of sustainable use);

• (5) The Parties, in addressing transboundary haze pollution, should involve, as appropriate, all stakeholders, including local communities, non-governmental organisations, farmers and private enterprises.’

• In general, the Agreement requires the Parties to the Agreement to:• (i) cooperate in developing and implementing measures to prevent, monitor, and mitigate

transboundary haze pollution by controlling sources of land and/or forest fires, development of monitoring, assessment and early warning systems, exchange of information and technology, and the provision of mutual assistance;

• (ii) respond promptly to a request for relevant information sought by a State or States that are or may be affected by such transboundary haze pollution, with a view to minimising the consequence of the transboundary haze pollution; and

• (iii) take legal, administrative and/ or other measures to implement their obligations under the Agreement.

• Article 7 introduces an obligation of monitoring by each and every Party and 7 the obligation of information. Article 8 ‘Prevention’ includes, inter alia, the obligation of introducing of the relevant legislation by Parties to the Agreement. Article 9 (Preparedness) obliges the Parties to set out contingency plans and standard operating procedures and Article 10 national emergency response. Any party may require assistance from the other Part to the Agreement (Articles 12-15). The Agreement also provides for technical cooperation and research (Article 16).

• This Agreement appears to be a well –drafted international instrument that provides for a framework of cooperation and joint responses but the focus of the adoption of the relevant action is vested in the Parties to the Agreement. The Agreement facilities the establishment of joint actions and plans (also though COPs), however, it does not impose onerous or far –reaching obligations, thus more acceptable than an intrusive agreement.

• In case of the Saharan dust pollution, it may be suggested, that such an Agreement perhaps should be an example to follow.

• Finally the classical law of State responsibility offers little assistance in case such as dust pollution, one the reasons being (if not the most important ) the problems related to causation (cause/effect).

• Scientific uncertainty, the cumulative effect of pollution processes at different times and places, and the complicated atmospheric processes pollutants undergo, make it difficult to determine causality and foreseeability.

• The lack of defining a causal link, makes the question of claiming State responsibility and standing before international courts and tribunals very difficult (if not impossible).

• The 2001 Articles on Responsibility of States deal with the invocation of State responsibility In Arts. 42(based on classical bilateralism in international law) and 48 which was considered a progressive development of international law ( the a view which might be changed after the 2012 case Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), followed by the 2014 Whaling in the Antarctic (Australia v. Japan; New Zealand intervening) case (that is of a special interest for environmental law), it appears that multilateralism of environmental obligations can be redressed in the course of judicial settlement of disputes).

• Thank You!