Energy Law and the Environment Part 3 pps

another sense, however, it is as much an energy resource as any of the primaryenergy resources insofar as it is capable of satisfying society’s demand for energy.For example, if society’

another sense, however, it is as much an energy resource as any of the primaryenergy resources insofar as it is capable of satisfying society’s demand for energy.For example, if society’s demand for electricity can be reduced by a given amountdue to the use of energy conservation techniques, this means that the amount

of primary energy used is correspondingly reduced Energy saved is as effective

as energy generated in satisfying society’s demands, and in this sense energyconservation is equivalent to the use of primary energy resources.92

The definition of energy law coined above refers to the ‘exploitation’ of energyresources The methods of turning energy resources into productive and prof-itable use differ greatly between the various sources, and the involvement of thelaw must be separately considered in respect of each resource For example, theexploitation of wind energy raises issues such as: How can access to the wind

be legally safeguarded for owners of wind generators?93What environmentalsafeguards exist to protect against visual pollution caused by wind generators

in environmentally sensitive locations?94To what extent should planning laws

be modified so as to permit the construction of wind generators in urban andsuburban districts?95And what remedies exist to protect neighbouring landown-ers from possible damage caused by flying rotor blades, collapsing towers ormicroclimate modification?96

The ‘allocation of rights and duties’ must next be considered This expression

is designed to consider the balance of legal rights and duties that must be lished between the interested parties in respect of each energy resource Again,the appropriate balance will differ fundamentally according to the nature of theresource In the case of non-renewable energy resources, there is the initial fun-damental issue of ownership rights in the resource.97Are or should the resources

estab-be vested in public ownership or should they estab-be subject to private ownership?

In the case of renewable energy systems, the notion of public ownership of theresource makes no sense One cannot, for example, ‘own’ the sun, the wind, thetides or the waves The issue in these cases is rather one of access to the resource

In the case of solar and wind energy access issues involve a balancing of the rights

of a solar or wind user to erect and operate their devices as efficiently as possible;

92 A unit of energy saved as a result of energy conservation techniques is sometimes referred to as a ‘negawatt’ (a negative watt).

93See Adrian J Bradbrook, ‘The Access of Wind to Wind Generators’ [1984] AMPLA Yearbook 433.

94See H Wilkinson, ‘Wind Farms’ (1994) 134 New LJ 314; Adrian Bradbrook, ‘Liability in Nuisance for the Operation of Wind Generators’ (1984) 1 EPLJ 128.

95 See D Newman, ‘Empowering the Wind: Overcoming Obstacles to Wind Energy Development in the United

States’ (2003) 3 Sustainable Development L & Policy 5; L Coit, Wind Energy: Legal Issues and Institutional Barriers (1979), at 9ff; J Riley, R Odland and H Barker, Standards, at 91.

96 See Adrian Bradbrook, ‘The Liability of the User of a Wind Generator in Tort for Personal Injuries’ (1985) 15

Melbourne U L Rev 249; L Bass and P Weis, ‘Safety Standards Development for Small Wind Energy Conversion

Systems’ (1981) 3 Solar Law Reporter 453; K Knox, ‘Strategies and Warnings for Wind Generator Buyers’ (1982) 24 Wind Power Digest 54.

97See Michael Crommelin, ‘The US Rule of Capture: Its Place in Australia’ [1986] AMPLA Yearbook 264;

R Pierce, ‘Coordinated Reservoirs Development – An Alternative to the Rule of Capture for the Ownership

and Development of Oil and Gas’ (1983) 4 JERL 1; Adrian Bradbrook, ‘The Relevance of the Cujus Est Solum

Doctrine to the Surface Landowner’s Claims to Natural Resources Located Above and Beneath the Land’ (1988)

11 Adelaide L Rev 462 The issues also arises in relation to geothermal resources: see Adrian Bradbrook, ‘The Ownership of Geothermal Resources’ [1987] AMPLA Yearbook 353; Sato and Crocker, ‘Property Rights to

in other words, to avoid all possible physical barriers to the flow of wind andaccess to sunlight, with the rights of neighbouring landowners to develop theirland as they consider fit.98In the same way as the law has to find a compromisebetween the state and a petroleum company in the case of the development ofoil and gas resources, so the law has to achieve a balance in the case of solarand wind energy between neighbours While the balance in the petroleum con-text is usually achieved by the introduction of legislation controlling petroleumexploration and production, in the case of solar and wind energy the balance isusually achieved by the use of the local planning laws In the case of energy con-servation, the roles of the individual and the State are effectively reversed As it

is in the national interest to conserve energy to the maximum extent practicable,the individuals or companies who engage in energy conservation techniques arehelping the State as much as themselves, not simply financially, but in relation

to other matters such as energy security or the avoidance of pollution Thus, it isappropriate to think in terms of the individual or company having legal ‘rights’and the State having legal ‘duties’ towards them

The preceding discussion explains why the definition of energy law referred

to above refers to the allocation of rights and duties concerning the exploitation

of energy resources ‘between individuals’ and ‘between individuals and the ernment’ We must now consider the role of energy law in allocating rights andduties ‘between governments’ and ‘between States’

gov-The allocation of rights and duties between governments arises for eration in federal jurisdictions such as Australia and raises issues of constitu-tional law In Australia the Constitution reserves residual rights to the States andgives only enumerated powers to the Commonwealth government Energy issuesfall within the residual powers of the States and thus primary responsibility forenergy laws lies at State level To date, the existing laws affecting renewableenergy resources and energy efficiency (apart from taxation issues), includingthe electricity industry, are purely at State level However, with the newly estab-lished national electricity grid and a national market for electricity and otherenergy products, together with the increasing interconnection of the State grids,

consid-it is possible that the Commonwealth government will be able to attract diction to itself over the industry pursuant to the trade and commerce power(s 51(i)) and the corporations power (s 51(xx)) of the Constitution.99

juris-Finally, rights and duties in the energy sector must be allocated by law betweenStates This, of course, raises a consideration of the application of the principles

of international law in the context of energy This area has evolved and continues

to evolve very rapidly and represents the real cutting edge of energy law at the

98 In relation to solar energy, see M M Eisenstadt, ‘Access to Solar Energy: The Problem and its Current

Status’ (1982) 22 Natural Resources J 21; J Gergacz, ‘Legal Aspects of Solar Energy: Easements for Sunlight and Individual Solar Energy Use’ (1980) 18 American Business L J 414; Adrian Bradbrook, ‘The Development

of an Easement of Solar Access’ (1982) 5 UNSWLJ 229 In relation to wind energy, see R Taubenfeld and

H Taubenfeld, ‘Wind Energy: Legal Issues and Legal Barriers’ (1977) 31 Southwestern L J 1053; Adrian brook, ‘The Access of Wind to Wind Generators’ [1984] AMPLA Yearbook 433.

Brad-99 Adrian Bradbrook and Alexandra Wawryk, ‘Constitutional Implications of the Restructuring of the

present time Until comparatively recently, energy was seen to be very much anational issue and one that required little, if any, international legal intervention.

In recent years, however, world concern for the environment, together with theremoval of trade barriers, has led to a realisation that international law has asignificant role to play in this domain The role of international law in promotingthe use of renewable energy resources and energy efficiency is discussed in detail

in thenext chapter

3.1 The role of energy in international law

Although public international law has existed for many centuries, it is only sincethe 1970s that it has concerned itself with energy issues Traditionally the legal

1 (1992) 31 ILM 849; 1771 UNTS 108 (in force 29 May 1992).

2 (1998) 37 ILM 22; UN Doc FCCC/CP/1997/L.7/Add.1 (in force 16 February 2005).

3 A/CONF.199/CRP/7 See<www.unep.org/Documents/Default.asp?DocumentID= 78&ArticleID=1163>

(accessed 16 March 2005).

4A/Conf 151/26; discussed in Nicholas A Robinson (ed.), Agenda 21: Earth’s Action Plan, Oceana Press, 1993.

Available at<www.un.org/esa/sustdev/documents/agenda21/English> (accessed 31 January 2005).

34

regulation of energy issues has been regarded as a matter of domestic, rather thaninternational law, and a matter that is exclusively for the States to resolve on anindividual basis This traditional approach has changed for a variety of reasons,largely involving international trade First and foremost, there has been an expo-nential leap in the quantum of energy use worldwide, particularly in developedcountries, since the end of the Second World War This has led to increased energytrade and increased reliance in many countries on energy imports, particularlypetroleum products, which in turn has led to heightened energy security con-cerns These concerns were brought to world attention by the Arab oil embargo

in 1973 and the subsequent oil price increases in 1979 and 1981 Although theonly direct legal consequence flowing from the Organisation of Petroleum Export-ing Countries’ (OPEC) stranglehold on petroleum exports was the agreement tocreate a strategic petroleum reserve, to guard against future world export prob-lems, the OPEC ascendancy in the 1970s was responsible for highlighting energysecurity concerns worldwide and caused many countries to rethink their energystrategies.5

The development of free trade principles under the GATT6and the creation

of regional and bilateral free trade agreements also have significant tions for international energy markets In relation to regional energy markets,the European Union is creating an internal energy market and a correspondingharmonisation of the energy laws of the member nations The North AmericanFree Trade Agreement (NAFTA),7which is now as far-reaching in this regard asthe European Union’s single energy market, entails a restriction on the sovereignrights of individual members to enact energy laws inconsistent with the freedom

implica-to trade across borders in the energy field

The use of the high seas in modern times for energy production and portation has also shown the increasing relevance of public international law tothe energy field Energy transportation of fossil fuels is largely the domain oflarge ocean-going tankers, some of which have foundered, causing severe envi-ronmental damage to adjacent coastal States.8This has led to the introduction

trans-5 On the importance of national energy security, particularly for developed countries, see United Nations Development Programme, United Nations Department of Economic and Social Affairs and World Energy

Council, World Energy Assessment: Energy and the Challenge of Sustainability, United Nations, New York 2000,

ch 4 (hereafter referred to as World Energy Assessment); B Barton et al, Energy Security: Managing Risk in

a Dynamic Legal and Regulatory Environment, Oxford University Press, Oxford, 2004; J Gault, ‘European

Energy Security’, OGEL at<www.gasandoil.com/ogel/>, 2004, vol 2, no 2; C L Orman, ‘The National Energy

Strategy – An Illusive Quest for Energy Security’ (1992) 13 Energy L J 251.

6 General Agreement on Tariffs and Trade, TIAS No 1700, 55 UNTS 194.

7 For a discussion of the impact of NAFTA on energy trade, see e.g R Page, ‘Greenhouse Gas Emissions and Emissions Trading in North America: Kyoto Protocol and US Initiatives: Challenges for the NAFTA Family’

(2002) 28 Canada-United States LJ 55; O Saunders, ‘GATT, NAFTA and North American Energy Trade: A Canadian Perspective’ (1994) 12 J Energy and Natural Resources Law 4; E Smith and D Cluchey, ‘GATT, NAFTA and the Trade in Energy: A US Perspective’ (1994) 12 J Energy and Natural Resources Law 27; D MacDougall,

‘Trade in Energy and Natural Resources: The Role of GATT and Developing Countries’ (1994) 12 J Energy and

Natural Resources Law 95; C Redgwell, ‘Energy, Environment and Trade in the European Community’ (1994)

12 J Energy and Natural Resources Law 128.

8In particular, the Erica, the Exxon Valdez, the Amoco Cadiz and the Torrey Canyon See P Birnie and A Boyle,

International Law and the Environment, Oxford University Press, Oxford, 2nd edn, 2002, ch 7 In relation to oil

pollution at sea more generally, R Bhatia and J Dinwoodie, ‘Daily Oil Losses in Shipping Crude Oil: Measuring

of the 1973 MARPOL Convention9and the 1982 UN Convention on the Law ofthe Sea,10which redefine the legal relationship between the coastal and portStates, on the one hand, and the flag State, on the other hand The effect ofthese conventions is to increase significantly the obligations of the flag States inrelation to the protection of the seas.11The high seas are also used increasinglyfor energy exploration and production, particularly offshore oil and gas Thishas given rise to significant developments in international law relating to bound-ary disputes,12pipelines and artificial islands, and the abandonment of offshoreinstallations.13

The involvement of energy issues in the sub-discipline of international ronmental law has been even more recent International environmental law hasits origins in the Stockholm Declaration of 1972,14although this document makes

envi-no mention of energy Since 1972, however, there has been increasing tion of the fact that the environmental impact of energy use has an internationaldimension This message has been brought home to the international commu-nity in spectacular fashion in recent times by a series of oil tanker disasters and,

recogni-in respect of nuclear energy, by the Chernobyl and Three Mile Island recogni-incidents.Other major international environmental impacts associated in whole or in partwith energy use and production include acid rain, climate change and the dump-ing of radioactive wastes To a lesser extent one can also add the depletion of theozone layer15and desertification.16As a result of these developments, energy isnow very much a part of international environmental law

The major hallmark of environmental law in recent times is that of able development This phrase was developed by the World Commission on

sustain-9 International Convention for the Prevention of Pollution by Ships (MARPOL) (London), 12 ILM 1319 (1973) (in force 2 October 1983) Note that this Convention was amended by the Protocol Relating to the Convention for the Prevention of Pollution from Ships (MARPOL), 17 ILM 546 (1978) before coming into force See A

Griffin, ‘MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty’ (1994) 1 Ind J Global Legal

Studies 419; G Peet, ‘The MARPOL Convention: Implementation and Effectiveness’ (1992) 7 Int J Estuarine and Coastal Law 277.

10 UN Convention on the Law of the Sea (Montego Bay), 21 ILM 1261 (1982).

11See e.g A Boyle, ‘Marine Pollution Under the Law of the Sea Convention’ (1985) 79 AJIL 347; P Allott,

‘Power Sharing in Law of the Sea’ (1983) 77 AJIL 1.

12 There have been numerous sea boundary disputes in recent times resolved either by agreement or by arbitration These include the Gulf of Maine (United States and Canada), the English Channel (United King- dom and France), the Gulf of St Lawrence (Canada and France), the North Sea (Germany, the Netherlands and Denmark) and the Oder Bight (Germany and Poland) Disputes still unresolved include the Timor Sea (Australia and East Timor) and the Spratly Islands (the Philippines, Vietnam and China) For a discussion of

this area of law, see E D Brown, Sea-Bed Energy and Minerals: The International Legal Regime, Martinus Nijhoff,

Dordrecht, 1992, Vol 1, ‘The Continental Shelf’.

13See R Higgins, ‘Abandonment of Sites and Structures: Relevant International Law’ (1993) 11 J Energy and

Natural Resources Law 6; R Bond, ‘Abandonment and Reclamation of Energy Resource Sites and Facilities: A

Joint Venturer’s Perspective’ (1993) 11 Oil and Gas Law and Taxation Rev 227.

14 UN Doc A/CONF/48/14/REV 1.

15 This area of international law is discussed in J Setear, ‘Ozone, Iteration and International Law’ (2000)

40 Va J Int L 193; L Thorns, ‘Comparative Analysis of International Regimes on Ozone and Climate Change With Implications for Regime Design’ (2003) 41 Columbia J Transnational L 795; T C Faries, ‘Clearing the Air: An Examination of International Law on the Protection of the Ozone Layer’ (1990) 28 Alberta L Rev 818; Birnie and Boyle, International Law and the Environment, (2nd edn 2002), at 517–23; A Enders and

A Porges, ‘Successful Conventions and the Conventional Success: Saving the Ozone Layer’, in K Anderson and

R Blackhurse (eds), The Greening of World Trade Issues (1992), at 131; D Doolittle, ‘Understanding the Ozone Depletion: The Meandering Road to the Montreal Protocol and Beyond’ (1989) 16 Ecology LQ 408.

16

Environment and Development in its 1987 report, Our Common Future.17 Thisreport was the culmination of international research and investigation intothe state of the global environment The 21-member Commission, chaired byNorwegian Prime Minister, Gro Harlem Brundtland, heard evidence from publicmeetings held on all five continents over 3 years The Report included environ-mental strategies for achieving sustainable development by the year 2000 andbeyond, and was hailed by the United Nations Environment Programme as themost important document of the decade.

The Brundtland Report defined ecologically sustainable development as

‘development which meets the needs of present generations without ing the ability of future generations to meet their needs’ Various other definitionshave been offered in national and state legislation One of the most comprehen-

compromis-sive is that in the Aquaculture Act 2001 (SA), s 4:

(1) Development is ‘ecologically sustainable’ if it is managed to ensure thatcommunities provide for their economic, social and physical well-beingwhile –

(a) natural and physical resources are maintained to meet the reasonablyforeseeable needs of future generations; and

(b) biological diversity and ecological processes and systems are protected;and

(c) adverse effects on the environment are avoided, remedied ormitigated

(2) In making decisions as to whether development is ecologically sustainable

or to ensure that development is ecologically sustainable

(a) long-term and short-term economic, environmental, social and equityconsiderations should be effectively integrated; and

(b) if there are threats of serious or irreversible environmental harm,lack of full scientific certainty should not be taken to justify the post-ponement of decisions or measures to prevent the environmentalharm.18

The majority of the legal instruments relating to environmental aspects of energylaw have been developed since 1987 and represent the application of sustainabledevelopment principles Some of the earlier instruments, however, predate theBrundtland Report We will now consider the most important of these energy-related instruments in chronological sequence, dealing first with relevant con-ventions and then with non-binding, ‘soft law’ declarations First, however, wemust examine whether customary international law has a role to play in thisarea

17World Commission on Environment and Development, Our Common Future, Oxford University Press,

Melbourne, 1987.

18See also Sustainable Forests (Timber) Act 2004 (Vic), ss 3, 5; Resource Management Act 1991 (NZ), s 5(2).

For a definition of sustainable development in international legal instruments, see the Rio Declaration on

3.2 Customary international law

There are three widely accepted principles of customary international law thatappear to have potential application in this area First, the duty to prevent andcontrol environmental harm requires States to take adequate steps to control andregulate sources of serious global pollution or transboundary harm within their

territory or subject to their jurisdiction The origins of such a duty are the Trail

Smelter decision19 and Principle 21 of the 1972 Stockholm Declaration on theHuman Environment.20In the Trail Smelter arbitration the tribunal held that ‘no

State has the right to use or permit the use of its territory in such a manner as tocause injury by fumes in or to the territory of another of the properties or personstherein, when the case is of serious consequence and the injury is established

by clear and convincing evidence’.21Principle 21 of the Stockholm Declarationaffirms the sovereign right of States to exploit their own resources pursuant totheir own environmental policies and their responsibility to ‘ensure that activi-ties within their jurisdiction or control do not cause damage to the environment

of other States or to areas beyond the limits of national jurisdiction’ Principle

21 was regarded by many States present at the Stockholm Conference, and sequently by the UN General Assembly, as reflecting customary internationallaw.22Its content has been included in a number of later instruments, includingUNCLOS, article 194(2), the 1985 ASEAN Convention on the Conservation

sub-of Nature and Natural Resources, article 20,23 and in the Preamble of theUnited Nations Framework Convention on Climate Change Principle 21 has beenrestated in the 1992 Rio Declaration As applied in subsequent treaties and res-olutions,24the Principle recognises a duty to prevent harm rather than merelymake reparation for environmental damage The Principle has been highly influ-ential in later international developments Older formulations of the ‘no harm’principle dealt only with transboundary harm to other States, but conventionsand declarations subsequent to the Stockholm Declaration support internationalacceptance of the protection of global common areas.25The International Court

of Justice has confirmed in the 1997 Gab¸cikovo-Nagymaros (Hungary v Slovenia)

decision that the duty not to cause transboundary environmental harm is a dutyunder general international law.26

19(1941) 35 AJIL 684 See also the Corfu Channel case (1949) ICJ Rep 1.

20 UN Doc A/CONF/48/14/REV 1 21 (1941) 35 AJIL 684 at 716.

22On this subject, see e.g L Sohn, ‘The Stockholm Declaration on the Human Environment’ (1973) 14 Harvard

LJ 423 at 485–93 See also UNGA Res 2996 (XXVII) (1972).

23 (1985) 15 EPL 64.

24 See, for example, Final Act, Conference on Security and Cooperation in Europe, Helsinki, August 1976; Preliminary Declaration of a Programme of Action of the European Communities in respect to the Environment (1973) O.C.J 112/1.

25 See e.g 1982 UNCLOS, arts 145, 209; Convention for the Regulation of Antarctic Mineral Resources Activities (27 ILM 868); 1991 Protocol to the Antarctic Treaty on Environmental Protection (30 ILM 678).

26(1997) ICJ Rep 7; discussed in P Bekker, (1998) 92 American J Int L 273; A Koe, ‘Damming the Danube: The International Court of Justice and the Gab¸cikovo-Nagymaros Project’ (1998) 20 Sydney L Rev 612; P Taylor,

‘Case Concerning the Gab¸cikovo-Nagymaros Project: A message from The Hague on Sustainable Development’

(1999) 3 New Zealand J Environmental L 109 See also the Advisory Opinion of the ICJ in the Nuclear Weapons

This first principle might initially appear to be an effective means of ensuringthat adequate controls exist at international level to prevent individual Statescausing pollution to neighbouring States in all energy-related contexts However,the precise scope of the legal duty to prevent transboundary pollution is not clear.Uncertainties exist on a number of matters For example, it is not clear whetherthe obligation is one of due diligence or absolute prevention of harm;27moreover,the type and degree of harm from which States must be protected is not settled.28Although it is possible to talk generally of an international obligation not to harmthe environment of other States, it is not possible to define precisely the content

of the obligation The duty must be examined individually as it applies to eachtype of environmental activity or harm

Second, there is a duty of transboundary cooperation in the control of boundary environmental risks.29This principle is supported in part by the lawrelating to the use of shared natural resources and requires prior consultationbased on adequate information.30Pursuant to Principle 24 of the Stockholm Dec-laration, the duty extends to the case of management of transboundary or globalenvironmental risks posed by hazardous or potentially harmful activities These

trans-presumably include, inter alia, nuclear installations near borders and long-range

transboundary air pollution In addition to the Stockholm Declaration, some sure of prior notification and consultation has been called for in certain treatyregimes and in the environmental strategies of UNEP and other internationalbodies.31

mea-Identical procedural obligations will not apply to each case of environmentalrisk The risk of harm must be significant or appreciable, and the obligation willdepend on the circumstances of each case For example, the obligation to consultabout nuclear power stations has been narrowly construed by State practice andapplies only to installations within 30 km of a State border.32The duty imposes

an obligation to negotiate in good faith but there are no substantive limitations

on activities, such as a prohibition on the installation of nuclear facilities.33Third, the duty of notification and cooperation in an environmental emer-gency is also widely accepted as customary law State practice, case law, treatiesand resolutions of international bodies support the existence of an obligation

27According to Birnie and Boyle, International Law and the Environment, at 113: ‘Treaty formulations and

the work of the ILC overwhelmingly favour the due diligence interpretation of states’ primary environmental obligations’.

28See Birnie and Boyle, International Law and the Environment, at 94–102.

29For illustrations of State practice on this point, see the Lac Lanoux arbitration (1957) 24 ILR 101; Nuclear

Test Cases (Australia v France) (1973) ICJ Rep 99; (1974) ICJ Rep 253; (New Zealand v France) (1973) ICJ

Rep 135; (1974) ICJ Rep 457.

30 See e.g G Handl, ‘The Principle of “Equitable Use” as applied to Internationally Shared Natural Resources:

Its Role in Resolving Potential International Disputes over Transfrontier Pollution’ (1978) 14 Revue belge de

droit international 40; A Utton, ‘International Environmental Law and Consultation Mechanisms’ (1973) 12 Columbia J Transnational L 56.

31 See, for example, 1982 UNCLOS, Articles 204–206; Convention for the Regulation of Antarctic Mineral Resource Activities (1988) 27 ILM 868; Protocol to the Antarctic Treaty on Environmental Protection (1991)

30 ILM 1461.

32 See, for example, 1977 Denmark–Federal Republic of Germany Agreement Regulating the Exchange of Information on the Construction of Nuclear Installations along the Border (1978) 17 ILM 274.

33

to give timely notification to States at risk of transboundary environmentalharm to enable them to take measures for self-protection and minimisation ofdamage.34

Other principles relevant to the international control of energy-based tion are in the process of evolving in international environmental law Theseinclude the precautionary principle; the principle of sustainable development;intergenerational equity; transfer of technology; and, more controversially, theright to a decent environment.35

pollu-While these various principles outlined above have application in the energycontext in relation to atmospheric pollution, they are as yet insufficiently devel-oped and defined to address adequately the environmental difficulties concern-ing nuclear radiation, acid rain, ozone depletion and climate change The areawhere custom is perhaps of least assistance is that of climate change It is possi-ble to argue that the ‘no harm’ principle in customary international law applies

to protection of the global atmosphere This point is made by Birnie and Boylewho draw together different instruments which regulate activities affecting theatmosphere and argue that a duty of ‘no harm’ exists To begin with, Principle

21 of the Stockholm Declaration forms the basis for the long-range air pollutiontreaties and for various provisions of the 1982 UN Convention on the Law of theSea Although the global environment is not an area ‘beyond the limits of nationaljurisdiction’ and hence within the exact terms of Principle 21, Birnie and Boyleargue that it should, by analogy, fall within the protection afforded by inter-national law to common areas such as the high seas.36Further support for theapplication of the ‘no harm’ principle to climate change is the 1977 Convention onthe Prohibition of Military or Other Hostile Use of Environmental ModificationTechniques, which indicates State concern regarding the hostile modification

of the atmosphere In addition, the 1980 UNEP Principles of Co-operation inWeather Modification recommend that weather modification activities shouldonly be carried out in ‘a manner designed to ensure that they do not cause dam-age to the environment of other States or of areas beyond the limits of nationaljurisdiction’

Birnie and Boyle conclude that customary international law may provide somelegal constraint on the conduct of activities likely to result in global climatechange However, there is no standard of due diligence that can be applied.The standards of due diligence contained in the Long-Range Transboundary AirPollution Convention and the Ozone Convention cannot necessarily be gener-alised into customary law The most telling argument against the customary ruleapplying to global climate change is the lack of consensus among States on the

34See, for example, Corfu Channel case (1949) ICJ Rep 22; 1982 UNCLOS, Articles 198, 211(7); 1989 Basel

Convention on the Control of Transboundary Movement of Hazardous Waste, Article 13; 1976 Convention on the Protection of the Rhine Against Chemical Pollution, Article 11.

35For a discussion of emerging principles of international environmental law, see H Hohmann, Precautionary

Legal Duties and Principles of Modern International Environmental Law, Graham & Trotman, London, 1994;

A Kiss and D Shelton, International Environmental Law, Transnational Publishers Inc, New York, 3rd edn 2004,

ch 5.

36

need to reduce greenhouse gases and the extent of the required reductions Thisindicates that the uniformity required to form a new rule of custom is lacking.

3.3 Conventions

3.3.1 The Acid Rain Convention

Acid rain is caused primarily by coal burning, which occurs mostly in power tions.37The problem varies in gravity around the world, depending on geographyand climatic conditions, the incidence of coal-fired power stations and the sul-phur content of the coal consumed In the 1960s and 1970s the problem became

sta-of acute concern in the eastern part sta-of North America, where Canadian forestshave suffered as a consequence of airborne sulphur from power stations in theMid-West of the United States, which burn high sulphur-content locally producedcoal In the Asia-Pacific region China is the most affected country

The 1979 Convention on Long-Range Transboundary Air Pollution38 is theone major international agreement regulating the emissions of substances thatcause acid rain It is the first multilateral convention that seeks to regulate theenvironmental consequences of energy production The treaty is a frameworkConvention that provides the basic obligation of protecting humankind and theenvironment from air pollution The specific obligations are contained in fiveProtocols to the Convention Article 2 of the Convention states that the Par-ties ‘are determined to protect man and his environment against air pollution’,and goes on to provide that the Parties ‘shall endeavour to limit and, as far aspossible, gradually reduce and prevent air pollution including long-range trans-boundary air pollution’ Pursuant to articles 3–9, the Convention obliges Parties

to develop and review policies and strategies on combating the discharge of airpollutants; engage in research and monitoring; exchange information on poli-cies, scientific activities and technical measures; enter into early consultations;and implement and further develop the Co-operative Programme for the Mon-itoring and Evaluation of Long-Range Transboundary Air Pollution in Europe(EMEP)

In order to combat air pollution, article 6 requires the Parties to developbest policies and strategies, including air quality management systems and con-trol measures However, this requirement is stated to apply only to ‘new orrebuilt installations’ The measures adopted are to be ‘compatible with balanced

37For a general discussion of the problem of acid rain, see UNDP et al, World Energy Assessment, ch 3;

C C Park, Acid Rain: Rhetoric and Reality, Methuen, London, 1987; H Dowlatabadi and W Harrington, ‘Policies for the Mitigation of Acid Rain: A Critique of Evaluation Techniques’ (1989) 17 Energy Policy 116; D P Adams and W P Page, Acid Deposition: Environmental, Economic and Policy Issues, Plenum Press, New York, 1985 For

a discussion of the legal problems associated with acid rain, see e.g N Fichthorn, ‘Command-and-Control

vs the Market: The Potential Effects of Other Clean Air Act Requirements on Acid Rain Compliance’ (1991)

21 Env L 2069; J L Regens and R W Rycroft, ‘Options for Financing Acid Rain Controls’ (1986) 26 Natural

Resources J 519; A Brunee, Acid Rain and Ozone Layer Depletion, Transnational Publishers, New York, 1988, at

225ff.

38

development’ and only the ‘best available technology which is economically sible’ is to be used This means that environmental protection is dependent oneconomic factors.

fea-An Executive Body, comprised of representatives of the Contracting Parties,has been created by article 10 of the Convention The Body meets annually and,

inter alia, reviews the implementation and development of the Convention.

Of the four Protocols which have been developed to support the tion, three are particularly relevant to the regulation of emissions that causeacid rain These are the 1985 Protocol on the Reduction of Sulphur Emissions

Conven-or Their Transboundary Fluxes by at least 30 Per Cent (Helsinki);39 the 1988Protocol concerning the Control of Emissions of Nitrogen Oxide or Their Trans-boundary Fluxes (Sofia);40the 1994 Protocol on Further Reduction of SulphurEmissions (Oslo),41and the 1999 Protocol to Abate Acidification, Eutrophicationand Ground-Level Ozone (Gothenburg).42

The 1985 Protocol on the Reduction of Sulphur Emissions is a relatively ple document Article 2 imposes a flat rate reduction in sulphur emissions ortheir transboundary fluxes of 30% for each Party ratifying the Protocol Threeother duties aimed at reducing emissions are contained in the Protocol First, byarticle 4 each Party must annually report its annual sulphur emissions and thebasis of calculation to the executive body Second, pursuant to article 6, eachParty must develop without undue delay national programs, policies and strate-gies to serve as a means of reducing sulphur emissions or their transboundaryfluxes by at least 30% by 1993 and report thereon to the executive body Third,article 3 of the Protocol obliges the Parties to study at the national level the neces-sity for further reductions beyond the initial 30% reduction when environmentalconsiderations warrant

sim-The 1985 Protocol on Sulphur Reductions did not apply to the control of gen oxide, another pollutant that causes acid rain This omission is addressed

nitro-in the 1988 Protocol concernnitro-ing the Control of Emissions of Nitrogen Oxide orTheir Transboundary Fluxes Article 2.1 of this Protocol requires Parties to reducetheir national annual emissions of nitrogen oxides or their transboundary fluxes

of such emissions to 1987 levels by the end of 1994 By article 2.2, the Partiesmust apply national emission standards to major new stationary sources andnew mobile sources based on the best available technologies which are econom-ically feasible, and are obliged to introduce pollution control measures for majorexisting stationary sources

The 1988 Protocol is noteworthy for being the first of the Protocols lished under the Convention to employ the ‘critical loads’ approach, rather than

estab-a percentestab-age-bestab-ased estab-approestab-ach, to the reduction of emissions ‘Criticestab-al loestab-ad’ isdefined in article 1.7 as meaning ‘a quantitative estimate of the exposure to one

or more pollutants below which significant harmful effects on specified sensitive

39 (1988) 27 ILM 707 In force 2 September 1987 40 (1988) 27 ILM 698 In force 14 February 1991.

elements of the environment do not occur according to present knowledge’ Theapproach requires the setting of environmental goals and the linking of thesegoals to the required emission reductions The current deposition levels and thenatural characteristics of the affected areas are first determined, following whichcritical values and corresponding objectives are then recommended and are con-verted into the necessary emission reductions by the use of EMEP computermodel calculations.43 The approach appears preferable to flat rate reductionsfor several reasons: it can take regional peculiarities into account; it avoids thearbitrary establishment of reduction rates and reference years by taking intoaccount environmental goals and cost-benefit calculations; and it forms a goodbase for the coordination of national strategies.44The ‘critical loads’ approachwas subsequently adopted in the 1991 Protocol Concerning the Control of Emis-sions of Volatile Organic Compounds or Their Transboundary Fluxes45and the

1994 Protocol on Further Reduction of Sulphur Emissions

The 1988 Protocol obliges the Parties, no later than 6 months after thedate of entry into force of the Protocol, to commence negotiations on furthersteps to reduce annual emissions, taking into account the best available scien-tific and technological development and internationally accepted critical loads(article 2.3) To that end, the Parties must cooperate to establish critical loads,reductions based on the loads and measures and a timetable for achieving thereductions

The Protocol contains a number of other obligations By article 3.1, the ties must facilitate the exchange of technology to reduce emissions, particularlythrough the promotion of commercial exchanges, direct industrial contact andcooperation including joint ventures, exchange of information and experience,and the provision of technical experience No later than 6 months after the date

Par-of entry into force Par-of the Protocol the Parties must commence consideration Par-ofprocedures to create more favourable conditions for the exchange of technol-ogy to reduce emissions of nitrogen oxides (article 3.3) Pursuant to article 4,

as soon as possible and no later than 2 years after entry into force of the tocol, the Parties must make unleaded fuel sufficiently available, in particularcases as a minimum along main international transit routes In addition, articles5–8 require the Parties to regularly review the Protocol taking into account thebest scientific substantiation and technological development, give high priority

Pro-to research and moniPro-toring based on the critical loads approach, develop withoutundue delay national programs, policies and strategies to implement obligation,and report annually to the Executive Body

The 1994 Protocol on Further Reduction of Sulphur Emissions imposes tional sulphur reduction requirements Like the 1988 Protocol, the critical loadsapproach is used to determine reduction targets for each Party There are a num-ber of basic obligations contained in article 2 under which the Parties mustreduce their emissions in accordance with requirements set out in various