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Protection of the atmosphere
Legal status of the atmosphere
(blurred)
-sovereign territory (Trail Smelter)
-shared resource (UNECE LRTAP
Convention)
-common heritage of mankind ? (not
used) common concern zone,
regardless of ownership
Protection of the atmosphere
3 regimes:
• Air pollution
• Protection of ozone layer
• Climate change
Protection of the atmosphere (contd)
a) Air
Pollution
Trail Smelter Arbitration 1941
Facts:
damage to US private timber forests/farms
from fumes from Canadian mining company
since 1920‘s
Problems:
-private international law rule: local action
rule (only sue at place of injury, needs
consent of company)
-no equal access jurisdiction between
states, so could not sue in Canada
-only possible with public int law
Protection of the atmosphere (contd)
a) Air
Pollution
Trail Smelter Arbitration 1941
Invoked customary international law:
…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….
Involved
- scientific investigations on each side
to assess damage
- tribunal of 3 arbitrators with 2
scientists for advise
- damages calculated at $78,000,
- no government expenses repaid
- Est. joint regulatory scheme
- 14 years to resolution
Protection of the atmosphere (contd)
a) Air Pollution
Problem: sulphur dioxide, nitrogen
oxides -Acid rain, lake
acidification, forest damage,
materials damage, health
effects,regional, transboundary
Protection of the atmosphere (contd)
Air pollution
• UNECE Convention on LRTAP
1979
• Bilateral Canada-US treaty on
air pollution only in 1991
• ASEAN Agreement on
transboundary haze pollution
2002
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range
Transboundary Pollution (in force
1983)
• Framework
Definition (art 1b):
…long-range transboundary air
pollution…having effects at such a
distance that..it is generally not possible
to distinguish the contributions of
individual emission sources or groups of
sources….
Damage to (art 1a):
….health, property, living
resources,ecosystems…
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE CLRTAP
Aims
General (art 2):
Obligation to …endeavour to limit..as far as
possible, gradually reduce and prevent…
Specific (art 6) balanced development..use
best available technology..economically
feasible…
(art 7, 8)
Research and development, exchange of
specific information
Institutions:
Executive body
Secretariat
Working groups, task forces, international
centres
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range
Transboundary Pollution
Specific obligations in 7 Protocols
• 1985 sulphur protocol
- reduce national emissions by 30%
by 1993 (compared with 1980)
-reporting requirement
• 1988 NOx protocol
-freeze at 1987 levels by 1994
-national emission standards for
new major sources
-national control measures for
existing sources
-introduce unleaded fuel
-suggested control technologies
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range Transboundary
Pollution
• 1991 volatile organic compounds
protocol
– Freeze at 1988 levels by 1999
– Use best available technology,
economically feasible, many industrial
sectors controlled
– Annual reporting, standardized format
• 1994 sulphur protocol
– Concept of critical loads
– Emission limits for specified sectors by
2004
– Joint implementation
– annual report to include policy
measures
– Suggest to harmonise methods
– Est implementation committee
– SOMA
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range
Transboundary Pollution
• 1998 Heavy Metals protocol
In preamble:
Prin 15 Rio precautionary principle
Prin 21 Stockholm state responsibility
Recognition of wider regional effects
Obligations:
Reduce as given in annex
Use BAT for new sources
Use methods of EMEP
Report to EMEP, implementation committee
• 1998 Persistent Organic Pollutants protocol
Eliminate production and use of some,
destroy stocks
reduce use of others, limit values
Exemptions for vital uses
Increase public awareness
report to Executive Body,
EMEP, implementation committee
non compliance decisions by consensus
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range
Transboundary Pollution
• 1999 protocol on acidification,
eutrophication, ground level ozone
• (will be in force May 2005)
- preamble
- Recognition of hemispheric and global
nature
- Prin 15 precautionary
- Involvement of ngo’s needed
- Specific objectives critical loads,
national air quality objectives, national
emission standards, projected
emissions, increase public awareness
- Report to EMEP, Impl Committee,
Exec body + report requests from nongeogr areas (USA/Canada)
Protection of the atmosphere (contd)
a) Air Pollution
1979 UNECE Convention on Long-range
Transboundary Pollution
Protocols -obligations increase in
complexity over time:
- reduction by …….
- critical loads
- National emissions standards for specific
sources
- Use of BAT obligatory
- Technical annexes
- Management areas
- Individual state reduction goals by..
- Phase-out
- Ban production and use
- Biggest cuts where cheapest to achieve
Also more control over reporting
quality, compliance but no real
sanctions for non-compliance
Protection of the atmosphere (contd)
a) Air Pollution
Success of Protocols?
–initial 30% SO2 target exceeded by 1994, even by nonparties
-NOx targets not stabilized
-all other substances not yet reduced but coming under
control
Success of air pollution legislation?- substantive
reductions
Meaning for int env law?
Principles:
-precautionary principle - regional customary law?
-not cause harm to other states?
-prevention principles?
-principle of cooperation?
-interstate public participation?
-public awareness/education
-judicial activity at inter-state level?
-state responsibility? State liability?
Other problems in the atmosphere
Peaceful uses of nuclear power:
• Power plants
Peaceful uses of nuclear power
• Low probability of accident with
high probability of serious/lethal
damage
• US legislative models used for int
civil liability regimes
– 1960 OECD Paris Convention on third
party liability
• Insurance coverage by power plant –
polluter pays, very limited funds
• Only OECD states
– 1963 Brussels Supplementary
Convention
• Liability extended to state of installation
when operator funds run out
– 1963 UN IAEA Vienna Convention on
civil liability for nuclear damage
Characteristics of civil liability regimes
for nuclear power
• Three tiers of liability:
– Operator through insurance
– State of installation
– Joint fund est by nuclear states
• Strict liability – not fault baseddefences for natural disasters
• Principle of non-discrimination,
harmed person can claim at
place of harm, at place of
installation, at residence of
operator
• Vienna Convention allows any
harmed person to claim, not
just of member states – ie
creates 3rd party rights
Other problems to the environment
• Nuclear weapons testing
Nuclear weapons testing
• 1963 Nuclear Test Ban
– Env goal: to end contamination of
man’s env by radioactive substances
– Not signed by France
• French nuclear tests 1966-1972
• Nuclear test cases 1973 Austr/NZ v
France at the ICJ, no acceptance
by Fr of ICJ jur.
– Moot based on official Fr statements
that no more atm tests would be
conducted
• Fr announced new u/g tests 1995
– NZ resumed 1974 ICJ case
– Fr sent reps
– No case, since not atm tests
Protection of the atmosphere
(c) ozone
layer
• chlorofluorocarbons (CFC’s)
• Legal status of ozone layer?
• 1985 Vienna Convention for
the Protection of the Ozone
Layer
– UNEP, 4 years negotiations
– Global, framework
– General obligation
– Specific obligation: Research on
potential substances
Protection of the atmosphere
ozone layer
1987 Montreal Protocol
• 1987 Montreal Protocol with
amendments
– CFCs, halons controlled
– Specific obligation to reach 1986 emissions
levels by 1988
– By 1994 reduce consumption/production to
80% of 1986 levels
– Developing states allowed slight increase for
domestic use- differential treatment/ principle
of equity
– Joint fulfillment by regional orgs.
– Trade control
– Incentives for developing states, financial
assistance to achieve objectives, multilateral
fund
– Decisions first by consensus, then 2/3 majority
– Annual reporting + non-compliance procedure
• Complaints, fact-finding, negotiate, financial aid,
training assistance, issue warnings, suspend rights
•
•
•
•
•
184 parties in 2003 (India, China, Brazil 1998)
By 1996 major CFC‘s phased out
export/import licensing system
Illegal trading sanctioned
Recovery of ozone hole by 2050
Climate Change
current CO2 ~ 380 ppm
1959 ~ 315 ppm
greenhouses raise to ~ 10,000 to kill pests
also heating effect
Protection of the atmosphere
Climate Change
•
•
•
•
•
1980s evidence
UNGA resolutions
IPCC established by UNEP/WMO
IPCC 1st assessment report 1990
UNGA Resolution 45/212 1990 to
initiate negotiations
Legally, politically, scientifically,
economically complex
Protection of the atmosphere
Climate Change
UNFCCC 1992 (in force 1994, 188
members 2003)
Preamble:
- Climate change is common
concern of humankind
- Largest share of GHGs by
developed countries, therefore first
step, equity principles
- Common but differentiated resp.
-
Principle of cooperation
Prin 21 /Prin 5
Intergenerational equity
Imp/dependence on science
Climate change convention 1992
-
Objective(art 2): Stabilize GHGs
-
Parties to be guided by principles (art 3)
- equity (inter-generational, common but
differentiated, specific needs of
developing/vulnerable countries
- Precautionary measures
- Right to sustainable development
- Cooperate, measures taken to combat CC
must not lead to unjustifiable discrimination in
trade
-
Obligations for all parties (Art 4(1))
-
Obligations for Annex 1 parties (Art 4(2))
- National policies to limit GHGs, report on policies
- Use best available scientific knowledge
-
Full financial assistance by Annex II to developing
countries to fulfill their convention obligations, transfer
of technology and adaptation costs (art 4(3))
-
Reciprocity: developing countries implement if
developed countries pay (art 4(3.7))
Climate change -UNFCCC
- Institutions: COP (art 7), secretariat (art
8), subsidiary body for science, for
implementation (art 9, 10), financial
mechanism (art 11)
- Reporting (art 12) : emissions inventory
(all parties),policies and effects (Annex I),
projects (voluntary, developing)
• Supervision
– COP reviews annual reports
– Assisted by subsidiary bodies
– Subsidiary bodies may receive input
from ngo’s, business
– Ind. expert review panel gathered by
Secretariat also reviews, submits to
COP
Climate Change
Kyoto Protocol 1997
• Covers 6 gases (carbon dioxide,
methane, nitrous oxide, HFCs,
perfluorocarbons, sulphur
hexafluoride) Annex A
• General commitments for Annex
1 countries (art 2)
• Specific commitments for Annex
1 states
– reduce overall emissions by 5% of
1990 levels by 2008-2012 (art 3)
– By 2007, national system of emissions
estimation (art 4)
Climate Change
Kyoto Protocol
How to achieve reductions?
Annex I states:
- joint implementation (art 3.1,
4.1)
- emissions trading
- with Annex 1 countries (art 6)
- eligibility criteria
- clean development
mechanism (art 12)
- with non-Annex I states
- eligibility criteria
Example of clean development mechanism
project
• Category : Renewables
Cerupt (Dutch Government's CDM credit
procurement program)
Location :China
• Huitengxile wind project
Description of Project :
Expansion of 40MW wind farm by 30.6MW
Participants :
Inner Mongolian Wind Power Corporation
Chinese Renewable Energy Industries
Association
CERUPT
Gas reduced/sequestered :CO2
GHG reductions claimed (in TCO2e) :600,248
Crediting period (years) :10
Validator : Price Waterhouse Coopers (PWC);
www.pwcglobal.com
Status : This project has been selected as a
supplier of carbon credits by the Dutch
Government
Comments :
This project is non-additional.
Climate Change
Kyoto Protocol 1997
Compliance regime (Marrakesh Accords 2001):
1.compliance committee
facilitative branch: ¾ majority decisions
enforcement branch: decisions by majority
in both Annex 1 and non-Annex 1
2. composition of committees
3. info may be submitted by ngo’s, igo’s; expert
info may be sought by committees
4. decisions to include reasons
5. accused party may comment or comply (100
days)
6.(public) hearing by enforcement branch if
requested by accused party
7. preliminary finding or not to proceed
8. if no response, final decision, available to public
9. Advice or assist or sanctions: emissions penalty,
compliance action plan, suspended emissions
trading
10. appeal to COP which may overturn enforcement
branch finding by ¾ majority and send back to
branch
quasi–judicial procedure
Protection of the atmosphere
Climate Change
Kyoto Protocol 1997
• Facilitative branch
– Promotes compliance through advice
and assistance
• Enforcement branch
– For emissions violations
• declaration of non-compliance and
reduction of emissions allowance for next
period
• ‘guilty’ party to submit compliance action
plan with analysis of causes, intention,
timetable
• Suspend eligibility to emissions trading
– For violations of eligibility requirement
of projects, suspend eligibility
participation