User:Kaihsu/EnvD7

D7: Transboundary air pollution

Troposphere < 18 km, stratosphere < 50 km.

Soft law: Principle 21 of the Stockholm Declaration, Principle 2 of the Rio Declaration. SDG 11.6: “By 2030, reduce the adverse per capita environmental impact of cities, including by paying special attention to air quality and municipal and other waste management”; with target 11.6.2: “Annual mean levels of fine particulate matter (e.g. PM2.5 and PM10) in cities (population weighted)”.

Caselaw: e.g. ICJ Nuclear Tests, 1996 ICJ Advisory Opinion Nuclear Weapons. Recall 1941 Trail Smelter: “under the principles of 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, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

No global treaty. Regional treaties: 1991 Canada–US Air Quality Agreement on acid rain was amended in 2000 for ground-level ozone, in 2007 on particulates. 2002 ASEAN Haze Agreement (in force 2003; covers whole ASEAN 2015). There are also bilateral ones, ICAO Convention annex 16.

1979 Long-Range Transboundary Air Pollution Convention
UNECE Geneva LRTAP Convention aims to limit, reduce, prevent air pollution (“... that is not generally possible to distinguish the contribution of individual emission sources ...”) with economic conditionality: art. 2. Consultations with affected states: art. 5. ‘Best available technologies which are economically feasible’ (BATEF): art. 6.

Obligation to exchange information on “Major changes in national policies and in general industrial development, and their potential impact, which would be likely to cause significant changes in long-range transboundary air pollution” inter alia: art. 8(b), but see also Espoo EIA Convention.

Parties include the EU, majority of European states, USA, Canada, Azerbaijan (but not other ex-Soviet states) &larr; UNECE, CSCE, acid rain. Many of the standards applicable in N. America are US and Canada national ones. Despite the weak provisions, reduction of regulated pollutants have been drastic (20 % to 70 % from 1990 to ≈2010) even though they remain a significant problem; lead &minus;80 %. These are in tension: environmental protection, economic feasibility, scientific information.

Protocols
Art. 10 established the Executive Body (like COP), which has adopted 8 implementing protocols, with various regulatory techniques. Many require info exchange, scientific research, public engagement. Recent amendments to protocols offer flexibility and assistance to new (eastern) parties.


 * 1984 Geneva Protocol on Financing of the European Monitoring and Evaluation Programme (EMEP)
 * 1985 Helsinki Sulphur Protocol (emission reduction “30 % Club” from 1980 baseline by 1993) &rarr; Oslo 1994 Sulphur Protocol (“control and reduce”, ‘critical loads’ – deposition level should be below that which would cause significant harm, ‘effects-based’ targets – based on science instead of precaution, BATEF standards on e.g. energy efficiency, implementation committee on compliance). Cf. IMO Sulphur 2020.
 * 1988 Sofia NOx Protocol: obligations to “control and/or reduce” emissions; apply national standards based on BATEF, ‘critical loads’, ‘effects-based approach’; negotiate. – also provision on sufficient availability of unleaded gasoline! &rarr; mostly superceded by Gothenburg Protocol requirements.
 * 1991 Geneva Volatile Organic Compounds (VOC) Protocol to deal with low-level ozone pollution: 3 options to “control and reduce” emissions with either targets or control in Tropospheric Ozone Management Areas; BATEF &larr; Basel Convention.
 * 1998 Aarhus Protocol on Heavy Metals: reduce Pb, Cd, Hg emissions from stationary sources (e.g. combustion, waste incineration) using BAT standards (annexes I, III); phase out Pb-petrol, consider managing Hg, maintain emission inventory (art. 3). Decision 2012/5 introduced more stringent controls, and flexibility for eastern states; Decision 2012/6 updated BAT annex III (neither in force). &rarr; 2013 UN Minamata Mercury Convention.
 * 1998 Aarhus Protocol on Persistent Organic Pollutants (POPs): obligations e.g. eliminate Annex I POPs, restrict Annex II POPs e.g. DDT uses for health, reduce Annex III emissions; amended 2009 to introduce new substances, emission limit values (ELVs), BAT (not all in force). &rarr; UN Stockholm, Basel Conventions.
 * 1999 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-level Ozone: multi-pollutant, multi-effect approach; “pollutant emissions management areas”. Objective: “control and reduce” emissions of S (&minus;63 %), NOx (&minus;41 %), VOCs (&minus;40 %), NH3 (&minus;17 %) “as far as possible” to targets levels by 2010: art. 2. This supercedes the earlier protocols for S, NOx, VOCs. Amended 2012 for 2020 targets, black carbon, fine particulate matter, flexibility for eastern states (not all in force).

The types of regulatory techniques: emissions reduction targets (rigid, flexible), technical standards on (mobile, stationary) emissions (BAT/EF, limit values, specific measures), pollution limits (critical load/level), prohibition/timed elimination, use restrictions.

In 2010, the Executive Body adopted the Long-term strategy for the Convention on Long-range Transboundary Air Pollution. It found in its decision 2010/5 that Spain has long failed to fulfil its obligation under the VOC Protocol, but was only able to reiterate, urge Spain, request UNECE to bring it to Spanish minister’s attention, present the details to the Parties and the public via its website and newsletter.

International Law Commission and protection of the atmosphere
ILC Special Rapporteur since 2013 has been Shinya Murase, for a set of draft guidelines. His starting point is the atmosphere as a common natural resource, but the mandate does not include e.g. precautionary and polluter-pays principle, common but differentiated responsibilities and respective capabilities, liabilities.

2nd and 3rd reports addressed the principles e.g. common concern of humankind, obligations erga omnes to protect (same as the marine environment under UNCLOS), international cooperation, sic utere tuo ut alienum non laedas, sustainable development, equitable utilisation, prevention (due diligence via environmental impact assessment) vs mitigation, precaution. 4th report considered relationship with international trade and investment law, law of the sea, human rights law. 5th report considered implementation, compliance, dispute settlement.

In 2018, the International Law Commission adopted a set of 12 Guidelines on Protection of the Atmosphere with Preamble on first reading: Use of terms – Scope of the guidelines – Obligation to protect the atmosphere – Environmental impact assessment – Sustainable utilization – Equitable and reasonable utilization – Intentional large-scale modification – International cooperation – Interrelationship among relevant rules – Implementation – Compliance – Dispute settlement.