Download Malgosia Fitzmaurice

International Law and Air Pollution-New Problems, New Challenges
Malgosia Fitzmaurice
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 brown cloud can have adverse impacts on agriculture, health, climate
and the water budget of the planet. The haze consists of a combination of water droplets and
minute particles. The Asian Brown Cloud is a layer of air pollution that covers parts of the
northern Indian Ocean, India and Pakistan, and parts of South Asia, Southeast Asia and
China. The United Nations Environment Programme (UNEP) has been supporting a project
called Atmospheric Brown Cloud (‘ABC’) . Five regional hotspots for ABCs have been
identified.
There is no developed international legal regime to combat this kind of pollution, therefore
we can only speculate as the possible norms of international law that might be applicable.
There is a regime of customary international law reflected in Principle 21 of the 1972
Stockholm 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.’
There are practical difficulties connected with the practical application of customary law
provisions in a situation of multiple actors, one of them being the question of casual link.
Better suited to such a situation appears to be a conventional regime. Such a regime can be
drawn from the existing conventions, such as the 1979 Convention on Long-Range
Transboundary Air Pollution; the 1991 UN ECE Convention on Environmental Impact
Assessment in a Transboundary Context; 2002 ASEAN Agreement on Transboundary Haze
Pollution.
These conventions even if not entirely adequate for the problem of the dust pollution, include,
however, certain very useful provisions that might be acceptable by States as not being overly
intrusive. Such provisions concern in particular exchange of information; monitoring;
consultations are obligations are very valuable in starting a framework of the cooperation.
From this point of view, the 2002 ASEAN Agreement on Transboundary Haze Pollution,
offers a set of provisions that appear to bolster the cooperation between States, without too
onerous obligations.
This Agreement has a set of general obligations that, due to their general character
acceptable to States: (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.
‘