Protection of the atmosphere Legal status of the atmosphere (blurred) -sovereign territory (Trail Smelter) -shared resource (UNECE LRTAP Convention) -common.

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


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/farmsfrom fumes from Canadian mining companysince 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


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


Air pollution

• UNECE Convention on LRTAP 1979

• Bilateral Canada-US treaty on air pollution only in 1991

• ASEAN Agreement on transboundary haze pollution 2002


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…


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


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



• 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– Recommended alternative technologies



• 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



• 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 non-geogr areas (USA/Canada)



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


a) Air Pollution

Success of Protocols?

–initial 30% SO2 target exceeded by 1994, even by non-parties

-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 based- defences 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


(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 atmosphereozone 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 ppm1959 ~ 315 ppmgreenhouses raise to ~ 10,000 to kill pestsalso 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


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 : RenewablesCerupt (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 CorporationChinese Renewable Energy Industries AssociationCERUPT

Gas reduced/sequestered :CO2

GHG reductions claimed (in TCO2e) :600,248

Crediting period (years) :10Validator : Price Waterhouse Coopers (PWC); www.pwcglobal.comStatus : This project has been selected as a supplier of carbon credits by the Dutch GovernmentComments :This project is non-additional.

http://www.pwcglobal.com/

Climate Change

Kyoto Protocol 1997

Compliance regime (Marrakesh Accords 2001):

1.compliance committee facilitative branch: ¾ majority decisionsenforcement branch: decisions by

majority in both Annex 1 and non-Annex 12. composition of committees3. info may be submitted by ngo’s, igo’s; expert

info may be sought by committees4. decisions to include reasons5. accused party may comment or comply (100

days)6.(public) hearing by enforcement branch if

requested by accused party7. preliminary finding or not to proceed8. if no response, final decision, available to public9. 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


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

Protection of the atmosphere Legal status of the atmosphere (blurred) -sovereign territory (Trail Smelter) -shared resource (UNECE LRTAP Convention) -common.

Documents

air pollution problem

transboundary slide

transboundary haze pollution

resolution slide

ownership slide

atmosphere legal status

specific art

public int law slide