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Protection of the atmosphere

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

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Protection of the atmosphere

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  1. 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

  2. Protection of the atmosphere 3 regimes: • Air pollution • Protection of ozone layer • Climate change

  3. 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

  4. Protection of the atmosphere (contd)a) Air PollutionTrail 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

  5. 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

  6. 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

  7. 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…

  8. Protection of the atmosphere (contd)a) Air Pollution1979 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

  9. Protection of the atmosphere (contd)a) Air Pollution1979 UNECE Convention on Long-range Transboundary Pollution Specific obligations in 7 Protocols • 1985sulphur 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

  10. Protection of the atmosphere (contd)a) Air Pollution1979 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 • Recommended alternative technologies

  11. 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

  12. 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 non-geogr areas (USA/Canada)

  13. 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

  14. Protection of the atmosphere (contd)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?

  15. Other problems in the atmosphere Peaceful uses of nuclear power: • Power plants

  16. 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

  17. 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

  18. Other problems to the environment • Nuclear weapons testing

  19. 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

  20. 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

  21. Protection of the atmosphereozone layer1987 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

  22. Climate Changecurrent CO2 ~ 380 ppm1959 ~ 315 ppmgreenhouses raise to ~ 10,000 to kill pestsalso heating effect

  23. Protection of the atmosphereClimate 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

  24. 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

  25. 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))

  26. 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

  27. 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)

  28. Climate ChangeKyoto 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

  29. Example of clean development mechanism project • Category : RenewablesCerupt (Dutch Government's CDM credit procurement program)Location :China • Huitengxile wind projectDescription 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) :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.

  30. 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

  31. 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

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