Transboundary Pollution

Transboundary pollution has been defined as the pollution that originates in one
country but is able to cause damage in another country’s environment, by crossing
borders through pathways like water or air1. It can also be defined as a pollution not
contained by a single nation-state, but rather travels across national borders at varying
rates2. As the famous saying goes, “all things are connected”. An occurrence in one state
affects another state.
Nevertheless, how does transboundary pollution transpired? Transboundary
pollution is transported through the following: wind; river; ocean; grasshopper effect; and
arctic seabirds3. Wind is the most common form of transportation of transboundary
pollution. It enables it to travel freely through wind currents. Other contaminants or
pollutants may travel through the ocean, which has contributed, to water pollution of a
place. The grasshopper effect uses dust or other particles to let pollutants travel from one
place to another4. Arctic seabirds are surprisingly labeled as carrier of some
transboundary pollutions, which includes mercury and DDT. DDT or dichloro diphenyl
trichloroethane is a colorless odorless substance, used as an insecticide. It is toxic to
animals and is known to accumulate in the tissues5.
Air pollution is defined as a mix of particles and gases that can reach harmful
concentrations both outside and indoors. A few examples of common pollutants are soot,
smoke, mold, pollen, methane, and carbon dioxide6. Air pollution is not just a domestic
concern. It is also an international problem. The difficulty of addressing air pollution
arises from the fact that it cannot be contained in one territory. Moreover, the problem in
one state with air pollution creates a domino effect in other state. This is an example of
transboundary pollution.
“Air pollution threatens us
all, but the poorest and most
marginalized people bear the
brunt of the burden” (Dr
Tedros Adhanom
Ghebreyesus, Director-
7
General of WHO) .
Transboundary Pollution vis-à-vis Globalization
Globalization is the opening of the state’s barrier for the flow of goods and
services. It encompasses borderless trade for the growth and expansion of economy. 8
Diseases caused by air pollution are getting out of hand. In the U.S. alone, decrease in the
quality of air has been attributed as the reason for the additional 10,000 deaths according
to the study conducted by researchers at Carnegie Mellon University 9. International trade
can contribute to transboundary pollution because as the production of goods improves
and increases, the number of wastes and trashes also increases. Most of the production of
goods happened in one state and it would be transported to another state. The quality of
air and water is affected because of the different improvement in trade10.

1
https://www.safewater.org/fact-sheets-1/2017/1/23/transboundary-pollution
2
https://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-
maps/transboundary-pollution
3
https://www.safewater.org/fact-sheets-1/2017/1/23/transboundary-pollution
4
https://www.safewater.org/fact-sheets-1/2017/1/23/transboundary-pollution
5
https://www.dictionary.com/browse/ddt
6
https://www.nationalgeographic.com/environment/global-warming/pollution/
7
https://www.ccacoalition.org/en/news/world-health-organization-releases-new-global-air-
pollution-data
8
https://www.who.int/topics/globalization/en/
9
https://www.washingtonpost.com/business/2019/10/23/air-pollution-is-getting-worse-data-
show-more-people-are-dying/
10
https://www.ncbi.nlm.nih.gov/pubmed/28358094
Transboundary pollution vis-à-vis industrialization
Industrialization is the manner by which the economy is converted from an
agricultural to an industrial one. It comprises of the improvement of manual labor to a
mechanical labor which includes the improvement in the production of goods and its
machineries11. Somehow, it can be associated to globalization because improvement in
the economic policies and trade would include the improvement and adaptation of
machineries and technologies. How industrialization relates with transboundary pollution
is apparent in the wastes that the economic industries and manufacturing produces. Sadly,
as lives of people improves through technology advancement and economic
development, the environment is also at risk. The conversion of an agricultural lot into an
industrial one poses different effects and dangers. Forests are endangered together with
its inhabitants. The contamination of water and air because of the emission of the
industries and the wastes it releases poses also danger in both human and environment12.

One effect of transboundary pollution is climate change and global warming.

Although some may find the two terms synonymous, they are different. “Global warming
is the long-term heating of Earth’s climate system observed since the pre-industrial
period (between 1850 and 1900) due to human activities, primarily fossil fuel burning,
which increases heat-trapping greenhouse gas levels in Earth’s atmosphere while
Climate change is a long-term change in the average weather patterns that have come to
define Earth’s local, regional and global climates”(
https://climate.nasa.gov/resources/global-warming-vs-climate-change/). Even though
both terms are different, they are similar in the sense that they are caused by human
activities. Transboundary pollution contributed to these phenomena. Utilizing coal fired
power plants and motor vehicles are examples of these human activities. The pollutions
they emit would travel a far distance and would encompass territories and boundaries of
other state.
Transboundary pollution creates a domino effect from one state to another. A
couple of months ago, it was all over the news that the Amazon rainforest is experiencing
forest fire. It was world issue because the amazon is dubbed as the largest rainforest in
the world. It is also responsible for the slowing down of global warming because it stores
carbon emissions13. Some months ago also, Indonesian haze has affected the Philippines
and other neighboring Southeast Asian countries. Forest burn in Indonesia is the main
reason for the haze. The haze posed a threat in the air that we breathe. The quality of air
we breathe decreases and become hazardous to human health 14. Both the effects in the
forest fire in Amazon and Indonesia travels beyond its territories and borders and affects
other territories. A clear scenario of transboundary problem.

Sources of International Environmental Laws

Disputes in Transboundary Pollution can be reconciled through several sources of
international law. The traditional sources are listed in Article 38 (1) of the Statute of the
International Court of Justice. Formally, this provision only applies to the ICJ. It is
however generally recognized that it expresses the sources of international law. The main
sources are treaties, customary international law and general principles of international
law.

Treaties or International Conventions

11
https://www.investopedia.com/terms/i/industrialization.asp
12

https://www.researchgate.net/publication/227295530_The_environmental_impact_of_industria
lization_in_East_Asia_and_strategies_toward_sustainable_development
13
https://www.bbc.com/news/world-latin-america-49971563
14
https://www.bbc.com/news/world-asia-34265922
 As defined in Article 2 of the Vienna Convention on the law of treaties of
1969 ,"Treaty" means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or in
two or more related instruments and whatever its particular designation;
In the context of environmental laws, there are hundreds of bilateral and multilateral
environmental treaties creating states' rights and obligations. The UN Environment
Program (UNEP) and the UN Commission on Sustainable Development have negotiated
many of these treaties .
Two of the major products of International Conventions are the Declaration of the
United Nations Conference on the Human Environment (the 1972 Stockholm
Declaration), which was the first major attempt at considering the global human impact
on the environment, and an international attempt to address the challenge of preserving
and enhancing the human environment, and Rio Declaration on Environment and
Development.
The international community also initiate ways to address transboundary
pollution. The Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal is one of the treaties that aims to address the
problem with harmful wastes and to enable the nations to diminish the use of hazardous
wastes and chemicals. It also prevent the relocation and transfer of one waste from a
developed to less developed countries. The Basel convention was came into being on
May 5, 199215.
Prior the Basel convention, there was a Convention on Long-range
Transboundary Air Pollution in 1979 which aims to address the major environmental
problems in Europe. It solves problems through scientific means and policy negotiation.
Measures to cut the emissions of air pollutants by member parties were also introduced in
this convention16.

Customary International Law

Customary international law is identified in article 38 (1) of the Statute of the
International Court of Justice as evidence of a general practice accepted as law and has
played a secondary role in international environmental law compared to treaty law. The
significance of custom is that it can establish obligations binding on all states, regardless
of adherence to treaty law. Furthermore, when a custom develops alongside a
conventional rule, it may supply or inform the content and effect of this rule. 17 Arguably,
creation of new customary rules may be seen as advantageous in the context of
international environmental law; while the treaty ratification process may be troublesome,
obtaining universal application may be easier for as much as it is presumed that it is not
necessary for states to expressly consent to a crystallized customary rule, in order to be
obliged by it. However, a problem with customary rules is that it is often hard to prove
their existence, as this requires evidence of both consistent state practice (“general
practice”), and of opinio juris (“accepted as law”).18
Most common examples of customary international law are Precautionary Principle
and Sustainable Development Principle.
The precautionary principle proposed as a new guideline in environmental decision
making, has four central components: taking preventive action in the face of uncertainty;

15
https://definitions.uslegal.com/b/basel-convention-on-the-control-of-transboundary-
movements-of-hazardous-wastes-and-their-disposal/
16
http://www.unece.org/fileadmin//DAM/env/lrtap/welcome.html

17
Sands and Peel (2012) p. 111.
18
Ibid. p. 112.
shifting the burden of proof to the proponents of an activity; exploring a wide range of
alternatives to possibly harmful actions; and increasing public participation in decision
making.19
On the otherhand, in the words of Brundtland, Sustainable Development Principle is
the combination of two principles , namely, intergenerational and intragenerational
equity. Ms. Brundtland said that the Intergenerational equity refers to the first dimension
of the proposition and relates to the adjective ‘sustainable’because it posits that in their
development choices states must preserve the environmental capital they hold in trust for
future generations and ensure that it is transmitted in conditions equivalent to those in
which it was received. In other words, environmental preservation is necessary to ensure
equity between generations; without it, the ‘sustainability’ of development cannot be
ensured. While the intragenerational relates to the ‘development’ part, since requires
equity in the distribution of the outcomes of development within one generation as much
internally (within one national society) as internationally (between developed and
developing states). However, it is only when they are read together that these two
principles confer on the expression ‘sustainable development’ its specificity.20

General Principles

The third source mentioned in Article 38 Statute of the International Court of Justice
is the General Principles of law recognized by Civilized Nations. General principles are
of a fundamental character and can be found in most of the legal systems in the world. As
a source of international law, they gain legitimacy by recognition from of the
international community (“recognised by civilised nations”), and unlike customary
international law, there is no requirement of universal state practice.21

The Principle of Good Neighborliness and International Cooperation is one of its

examples. The former principle places on states a responsibility not to damage the
environment. While the latter places an obligation on states to prohibit activities within
the state's territory that are contrary to the rights of other states and which could harm
other states or their inhabitants.22

Moreover, we have the Principle of Sovereignty and Responsibility which was

further developed in 1961 when the United Nations General Assembly declared that
"T]he fundamental principles of international law impose a responsibility on all states
concerning actions which might have harmful biological consequences for the existing
and future generations of peoples of other states, by increasing the levels of radioactive
fallout."23
Additional is the Pollution Prevention Principle which provides that a state may be
under the obligation to prevent damage within its own jurisdiction. Therefore, the
discharge of toxic substances in such quantities or concentrations which exceed the
capacity of the environment's degradation capacity, must be halted in order to ensure that
serious or irreversible.24

Approaches to Transboundary Pollution

Apparently, issues in transboundary pollution involves two or more different
states which has their own laws in the land, some may be considered to be applicable to
other state but some may be conflicting. Hence, these approaches will aid the court or any
tribunal to maintain the harmony and to settle disputes among the states involve
considering their conflicts and differences.
I. Governmental Interest Analysis
19
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240435/
20
European Journal of International Law, Volume 23, Issue 2, May 2012,
21
Voigt (2009) p. 160.
22
GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW Max Valverde Soto
23
GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW Max Valverde Soto
24
GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW Max Valverde Soto
 Using the governmental interests test, we first look at each jurisdiction's policy to see
what interests the policy is meant to protect, and then consider which jurisdiction's policy
would be most advance by applying the law of that jurisdiction. Part of the test of
determining the jurisdiction whose policy would be most advanced is determining which
jurisdiction has the most significant relationship to the dispute. Hercules, supra, 566 A.2d
at 41 n. 18 .
The governmental analysis approach involves the following steps:
1. The court determines whether the relevant law of the affected jurisdictions with
regard to the issue in question is the same or different.
2. If there is a difference, the court examines each jurisdiction’s interest in the
application of its own law to determine whether a true conflict exists.
3. If the court finds that there is a true conflict, it carefully evaluates and compares the
nature and strength of the interest of each jurisdiction to determine which state’s
interest would be more impaired if its policy were subordinated to the policy of the
other state.25

II. Lex Loci Delicti

This approach applied the Law of the place where the delict [tort] was committed.
In Williams v. State Farm Mut. Auto. Ins. Co., the court held that the substantive
rights and obligations arising out of a tort controversy are determined by the law of the
place of injury, or lex loci delicti. Thus, under the principle of Lex Loci Delicti, a court
will determine the substantive rights of an injured party according to the law of the state
where the injury occurred.
As stated in the cases of Pakootas vs Teck Cominco Metals, Ltd., so long as there is a
domestic connection with the act that was performed or being performed, the same is no
longer an extraterritorial application of domestic law. Indeed, the fact that an act which is
sought to be regulated has a foreign source but whose effects are felt locally,
extraterritorial application cannot be claimed.

III. Most Significant Relationship

It is one of the most used approach in the international arena. This approach
examines which of the states has the most connection to a case. These points of contact
were enumerated in the Resolution (Second) of Conflict of Laws which are as follows;
a) The place where the injury occurred;
b) The place where the conduct causing the injury occurred;
c) The domicile, residence, nationality, place of incorporation, and place of business of
the parties;
d) The place where the relationship, if any, between the parties is centered.
Further, it has been enunciated in the litany of decided cases that the most states
adhering to the most significant relationship approach place or allocate so much
importance to this point of contact since the state with the most significant relation to a
claim is usually the state in which tort occured.

Transboundary Cases and Actions against

1. Gabčíkovo–Nagymaros Dams

25
Conflicts Of Laws, Galahad R.A PE Benito, p391
 It is a large barrage project on the Danube. It was initiated by the Budapest Treaty
of 16 September 1977 between the Czechoslovak Socialist Republic and the People's
Republic of Hungary. The project aimed at preventing catastrophic floods, improving
river navigability and producing clean electricity.
The treaty envisioned a cross-border barrage system between the towns of
Gabčíkovo, Czechoslovak Socialist Republic (now Slovak Republic) and Nagymaros,
People's Republic of Hungary (now Hungary). The dams would eliminate regular
flooding (like the disastrous ones of 1954 and 1965) and provide a clean source of
electric power. They would also allow year-long navigability of the river and serve as a
part of the Rhine-Main-Danube Canal system of inland navigation.
The plan was to divert part of the river into an artificial canal at Dunakiliti (a
village in Hungary) to the hydroelectric power plant near Gabčíkovo (eight turbines, 720
MW). The canal would return the water into a deepened original riverbed and at
Nagymaros a smaller dam and power-plant (158 MW) would be constructed. The plant in
Gabčíkovo was to be a peak-power plant and the dam in Nagymaros, about 100 km
downstream, was to limit fluctuations of the water level.
Because most of the construction was planned to occur in Slovak territory, the
Hungarian government was obligated to participate in some construction in Slovakia, to
ensure equal investment by both sides. Electricity produced was to be shared equally
between the two countries.26

2. Indonesia’s Haze
The haze affected Indonesia from at least late June, to the end of October, turning
into an international problem for other countries in September. It was the latest
occurrence of the Southeast Asian haze, a long-term issue that occurs in varying intensity
during every dry season in the region. It was caused by forest fires resulting from illegal
slash-and-burn practices, principally on the Indonesian islands of Sumatra and
Kalimantan, which then spread quickly in the dry season.27
The said major event affected the neighboring states, including, Brunei,
Cambodia, Indonesia, Malaysia, Philippines, Singapore, Thailand, and Malaysia.
Different measures were applied by these states to save their respective jurisdictions. In
fact, Singapore launched legal action that could lead to massive fines against Indonesian
companies blamed for farm and plantation fires spewing unhealthy levels of air pollution
over the city-state.28

3. Chernobyl Accident 1986

The April 1986 disaster at the Chernobyla nuclear power plant in Ukraine was the
product of a flawed Soviet reactor design coupled with serious mistakes made by the
plant operatorsb. It was a direct consequence of Cold War isolation and the resulting lack
of any safety culture.
The accident caused the largest uncontrolled radioactive release into the
environment ever recorded for any civilian operation, and large quantities of radioactive
substances were released into the air for about 10 days. This caused serious social and
economic disruption for large populations in Belarus, Russia, and Ukraine. Two
radionuclides, the short-lived iodine-131 and the long-lived caesium-137, were
particularly significant for the radiation dose they delivered to members of the public.

26
https://www.icj-cij.org/en/case/92
27
https://www.bbc.com/news/world-asia-34265922
28
https://news.mongabay.com/2019/10/palm-oil-indonesia-arjuna-utama-sawit-musim-mas-
forest-fires/
 It is estimated that all of the xenon gas, about half of the iodine and caesium, and
at least 5% of the remaining radioactive material in the Chernobyl 4 reactor core (which
had 192 tonnes of fuel) was released in the accident. Most of the released material was
deposited close by as dust and debris, but the lighter material was carried by wind over
Ukraine, Belarus, Russia, and to some extent over Scandinavia and Europe.29

4.Pulp Mills on the River Uruguay

The pulp mill dispute was a dispute between Argentina and Uruguay concerning
the construction of pulp mills on the Uruguay River. The presidents at the time were
Néstor Kirchner (Argentina) and Tabaré Vázquez (Uruguay). As a diplomatic, economic,
and public relations conflict between both parties, the dispute also affected tourism and
transportation as well as the otherwise amicable relations between the two countries. The
feud was unprecedented between the two countries, which have shared historical and
cultural ties.[1] Proceedings were brought before the International Court of Justice as a
case formally named Pulp Mills on the River Uruguay (Argentina v. Uruguay).[2] It ruled
that, although Uruguay failed to inform Argentina of the operations, it did not pollute the
river, so closing the pulp mill would be unjustified. The conflict ended in 2010, during
the presidencies of Cristina Fernández de Kirchner (Argentina) and José Mujica
(Uruguay), with the establishment of a joint coordination of the activities in the river.

5. Trail Smelter Arbitration

The Tail Smelter located in British Columbia since 1906, was owned and operated
by a Canadian corporation. The resultant effect of from the sulfur dioxide from Trail
Smelter resulted in the damage of the state of Washington between 1925 and 1937. This
led to the United States (P) suit against the Canada (D) with an injunction against further
air pollution by Trail Smelter.

It is the responsibility of the State to protect other states against harmful act by
individuals from within its jurisdiction at all times. No state has the right to use or permit
the use of the territory in a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein as stipulated under the United States (P) laws
and the principles of international law.

By looking at the facts contained in this case, the arbitration held that Canada (D)
is responsible in international law for the conduct of the Trail Smelter Company. Hence,
the onus lies on the Canadian government (D) to see to it that Trail Smelter’s conduct
should be in line with the obligations of Canada (D) as it has been confirmed by
International law. The Trail Smelter Company will therefore be required from causing
any damage through fumes as long as the present conditions of air pollution exist in
Washington. So, in pursuant of the Article III of the convention existing between the two
nations, the indemnity for damages should be determined by both governments. Finally, a
regime or measure of control shall be applied to the operations of the smelter since it is
probable in the opinion of the tribunal that damage may occur in the future from the
operations of the smelter unless they are curtailed.30

Conclusion

29
https://www.world-nuclear.org/information-library/safety-and-security/safety-of-
plants/chernobyl-accident.aspx

30
https://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss2/2/
 Transboundary pollution knows no borders and restrictions. It encompasses
boundaries of one country to another. Oftentimes, pollution brought about by other
countries are not addressed in one country and the country responsible for such pollution
is not held responsible and not penalized. This is because of the fact that countries do not
have the law that would punish another country for transboundary pollution.

Moreover, some incidents which we may consider as transboundary incident are

caused by inevitable circumstances. Like a connecting river that continuously flows from
one state to another state or the moving air that is present in the common sky of different
states, etc. These are some that we can label circumstances beyond human actions though
most incidents are worsen by irresponsible human actions.

The bottom line is we cannot stop some effects of transboundary pollution which was
caused by natural circumstances or those caused by humans but subsequently goes
beyond our control considering the limitation of man’s capacity. However, this must not
be the end. In every problem there must be a solution.

One common remedy or precautions we can have is the bilateral or multilateral

agreement between or among states which will be affected. Here, we may set what should
not be done or what should be followed. Each states can bring their problems and fear for
the worst scenario their jurisdiction may have together in the international arena. These
may be their common tool that will measure against the effects of transboundary
pollution.