The principle and duty to cooperate.

The case of conventions on transboundary pollution in Europe.

Hans Christian Bugge Professor emeritus of Environmental Law

University of Oslo

Overview

1. Duty of cooperation as a general principle in international environmental law.

2. The practical application: multilateral agreements.

3. Two examples from Europe:

• Convention on Long Range Transboundary Air Pollution (CLRTAP)

• Convention on the Protection of the Marine Environment of the North-East Atlantic (OSPAR).

The duty to cooperate is recognized as a general principle of international environmental law

It is laid down in «soft law» instruments such as: • 1972 Stockholm Declaration (principle 24), • 1992 Rio Declaration (principles 7, 9, 14 and 27) … in a number of «hard law» conventions, for example in the 1982 UN Law of the Sea Convention, Article 197.

“States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures … for the protection and preservation of the marine environment, taking into account characteristic regional features.”

.. and in ICJ cases on international environmental disputes.

The principle and duty to cooperate is an essential part of State responsibility for transboundary pollution…

… since the general «no harm rule» may be difficult to apply to transboundary pollution, because:

• Transboundary pollution has multiple causes and sources, often impossible to identify individually.

• Causes/effects relationships are often complex and uncertain.

• States are both sources and victims; all contribute to the problem - although to a varying degree.

The duty to cooperate both builds on and expands the duty not to harm other states (the «no harm rule»).

Some clear overlaps between the two:

• The principle of «good neighbourliness»

• the duty to consult with other states in order to prevent or reduce transboundary harm,

• the duty to notify and exchange relevant information on possible hazardous activities and risks, and emergencies

• the duty to carry out cross border environmental impact

assessments if risk of significant cross border effects.

Transboundary pollution cannot be properly

prevented or abated unless all relevant states…

…. Agree on the problem and its causes in general.

– Agree on common goals and principles to solve the problem.

– Take coordinated measures to reduce emissions.

– Accept to harmonize rules regarding industry and substances in order to establish «a level playing field».

– Agree to exchange scientific and technological knowledge and provide mutual support in the work.

Fulfilling the duty of cooperation:

Combatting transboundary pollution requires

a «package» - or «cluster» - of closely interrelated measures, obligations and commitments…

…. This requires most often a multilateral agreement …

…. with legal force, but at the same time flexible and dynamic

…. and adapted to the situation in the participating countries.

…. For many transboundary pollution problems, a regional agreement is the relevant solution.

Differentiation in states’ obligations? It may be reasonable and necessary…

…. in order to get «all on board», and to bring about effective – rather than formal – equality among states which are de facto unequal with regard to relevant conditions and capabilities. Principle of common but differentiated responsibilities: Differentiation between «developed» and «developing» countries.

1992 Rio principle 7: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth's ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

The distinction between “developed” and “developing” countries is increasingly blurred and problematic.

There may be differentiations within these two groups based on differences in natural conditions, technical status and cost of abatement measures, etc.; differentiation in order to achieve cost-efficient pollution abatement.

Several ways to differentiate:

• different obligations, «grace periods», etc.

• «explicit» and «implicit» differentiation.

Differentiation poses dilemmas: In order to have a «level playing field» in international trade and industry some emission standards have to be harmonized and uniform.

1979 UN/ECE Convention on Long Range Transboundary Air Pollution (LRTAP)

LRTAP: The «acid rain» problem over Europe (and the US)

Acidification of lakes in «Forest death» in Norway and Sweden Central Europe Norway: 5000 local fish species lost

Long range, transboundary, transport of pollutants

State responsibility based on the «no harm rule»?

In the 1970s: 90 % of the sulphur and 80 % of the nitrogen deposited in Norway came from other European countries (mainly West and East Germany and Poland).

Could Norway have started legal proceedings against these countries on the basis of the «no harm rule»? Probably yes …

LRTAP article 5 recognizes that some states are main sources and some states are main victims, but explicitly does not contain a rule on State liability as to damage.

But … One (of several) problems here: Norway was itself contributing to the problem with national emissions of SO2.

LRTAP: main elements

Framework convention with soft obligations from the start.

Precise obligations laid down in later protocols.

Now 51 parties including EU, USA, Canada and former Soviet republics.

Cooperation in research to identify causes and effects, and close cooperation between science and policy.

(The European monitoring and evaluation programme – EMEP).

1985: First protocol with precise target: 30 % reduction of SO2 emission until 1995 for all parties.

From 1988: Targets based on the «critical load» approach.

The target to keep - or bring - the pollution within nature’s tolerance level:

“Critical load”:

“The maximum amount of deposition of pollutants an ecosystem can receive in the long term without significant damage.»

This varies considerably from one region to another in Europe according to soil, geology and other conditions.

The «integrated assessment model»:

From 1995: Differentiation of states’ emission reduction targets based on

• Defined «critical loads» in the different countries: national effects of pollutants on forests, soil and water,

• mapping of major emission sources

• meteorological conditions and dispersion and deposit of pollutants in the various geographical areas

• abatement measures options and their costs and benefits.

Based on this complex model and further negotiations the result is great differences in emission reduction commitments between countries for some substances:

An example: Reduction of SO2 emissions from 1980 to 2005:

Germany: 87 % reduction

Portugal: 3 % reduction

This makes it possible to reach the targets in a cost- efficient way for Europe as a whole.

Other main elements

• Gradual harmonization of measures to reduce emissions from important sources, through limit values based on best available techniques (for large combustion plants, electricity production, som industrial processes, etc.)

• Also agreed air quality standards to be reached.

• Regular reporting and overview of the parties’ compliance, and an open, supportive and «non-confrontational» compliance mechanism through a special Implementation committee.

• But: Varying degree of ratifications and compliance.

LRTAP development

• 8 binding protocols (from 1985 to 1999) lay down national mandatory emission ceilings for hazardous substances within a time limit:

• (SO2, NOx, VOC, heavy metals, Persistent Organic Pollutants (POP), Eutrophication, ground-level ozone).

• These have been gradually strengthened over time, the latest revision in 2012 with targets for 2020.

LRTAP results: over 50 % reduction of emissions

(but still a way to go…)

Areas exceeding critical loads of acidification 1980-2010

The acidity situation in Southern Norway 1985-2015:

IIASA Regional Air Pollution INformation and Simulation (RAINS-Asia) assesses the sensitivity of various ecosystems

(their "critical loads") to acidic deposition in Asia

RAINS-Asia: Exceedance of Critical Loads

OSPAR

1992 Convention for the protection of the Marine Environment in the North-East Atlantic

1992 OSPAR: North East Atlantic, national EEZ

boundaries

North-East Atlantic

Marine and coastal ecosystems in North-East Atlantic provide a wide range of goods and services, of great economic and welfare value.

The ecology varies widely within the area.

Environmental problems in the North-East Atlantic

• High levels of some toxic substances

• Oil pollution

• Eutrophication (in parts)

• Ocean acidification

• Litter, plastic waste, etc.

• Declining fish stocks, overfishing

• Declining stocks of sea birds

• Declining populations of marine mammals (seals)

• Destroyed/threatened coral reefs

OSPAR: Eutrophication status 2007

Stomach content of sea gull (plastic bits)

OSPAR: Main elements

Origins: 1972 Oslo Convention on dumping and 1974 Paris Convention on pollution from land-based sources. 15 State parties. OSPAR Commission.

• Far-reaching: Includes also discharge to rivers and estuaries

(freshwater pollution), and air pollution affecting the sea.

• A framework convention with annexes.

• Lays down the precautionary principle, principle of best available techniques. Aiming at an ecosystem approach.

• Cooperation on monitoring and research of the status of the marine environment, pollution and biodiversity.

OSPAR: Main elements

Implemented through targets and strategies,

• legally binding decisions (consensus)

• recommendations on emission reductions, and agreements.

• Gradual strengthening of targets on hazardous substances, the latest is the «one generation cessation target» (1995-2020).

• Harmonizing emission limits for various industrial activities based on agreement of «best available techniques».

• Adopting Ecological Quality Objectives for marine biodiversity, and establishing a network of marine protected areas.

OSPAR Marine Protected Areas

OSPAR Quality status report 2010:

Positive results, but still a long way to go…..

Eutrophication: 50 % reduction in phosphorus discharges, but nitrogen discharges are still a main problem, in particular from agriculture.

Environmental concentrations of chemicals have generally fallen, but are still above acceptable concentrations in many coastal areas.

Oil discharges from off-shore activity have fallen by 20%.

Fish stocks: Exploitation of many stocks continues to be beyond the levels they can sustain.

Lesson: A coherent, long term commitment is necessary!

To sum up the principle and duty to cooperate:

The principle and duty to cooperate to solve transboundary pollution problems implies a «package» - or «cluster» - of mutually agreed and closely interrelated and consistent measures and commitments:

• Cooperation in research to identify the problems and possible solutions, monitor development

• Agreeing on common objectives, principles and targets.

• Cooperation on technological development to reduce emissions from various sources.

• Harmonization of national rules and measures, in particular emission levels for main sources, based on commonly agreed, «best available», technology,

• Exchange and sharing of knowledge and experience,

• Monitoring, reporting and mutual support and assistance in compliance work.

• Long term commitment and «step by step» development.

Thank you!