International Environmental Law: Transboundary Pollution and Resource Disputes

Posted on Mar 5, 2025 in Law

Problem-Based Question (PBQ):

Scenario: Country A, an industrialized nation, operates a chemical plant near the border of Country B, a developing nation. The chemical plant releases harmful pollutants, including sulfur dioxide and nitrous oxides, into the atmosphere. Over time, these pollutants cross the border into Country B, resulting in significant harm to its forests, water resources, and agriculture. Despite repeated complaints from Country B, Country A continues its operations without implementing pollution control measures. Country A argues that as a sovereign nation, it has the right to exploit its resources as it sees fit within its borders.

Country B, suffering from economic and environmental damage, decides to bring the case to an international tribunal, citing the principles of “no harm,” “common but differentiated responsibilities” (CBDR), and “polluter pays.”

You are tasked with advising the tribunal.

Answer: Using ILAC

I – Issue:

1. Does Country A’s emission of pollutants violate the “no harm” principle under international environmental law (IEL)?
2. Can the principle of state sovereignty justify Country A’s actions?
3. Is Country A liable for transboundary harm under IEL principles, including the polluter pays principle and CBDR?

L – Law:

Relevant principles and cases include:

1. No Harm Principle (Trail Smelter Case):

   • Established that states must not use their territory in ways that cause harm to other states. The Trail Smelter case set the precedent for transboundary pollution, affirming states’ responsibility for ensuring activities within their jurisdiction do not harm other states.

2. State Sovereignty vs. Environmental Responsibility:

   • Under Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, states have sovereign rights to exploit their natural resources. However, this right is limited by the obligation not to cause environmental damage to other states or areas beyond national jurisdiction.

3. Common but Differentiated Responsibilities (CBDR):

   • Recognized in Principle 7 of the Rio Declaration and the UNFCCC, this principle acknowledges the differing capabilities and responsibilities of states in addressing environmental challenges, with industrialized nations bearing a greater burden due to their historical contributions to environmental degradation.

4. Polluter Pays Principle:

   • Outlined in Principle 16 of the Rio Declaration, this principle holds that those responsible for pollution should bear the costs of preventing and remedying damage.

A – Application:

1. No Harm Principle:

   • The pollutants from Country A’s chemical plant have caused significant transboundary harm to Country B, including damage to forests, water resources, and agriculture. This aligns with the precedent set by the Trail Smelter case, where Canada was held liable for cross-border pollution that harmed the United States. Country A’s actions violate its obligation to ensure that activities within its jurisdiction do not harm other states.

2. State Sovereignty vs. Environmental Responsibility:

   • While Country A has the sovereign right to exploit its resources, this right is not absolute. Principle 2 of the Rio Declaration limits this right by imposing a duty to prevent harm to other states. Country A’s failure to implement pollution control measures breaches this duty.

3. CBDR Principle:

   • As an industrialized nation, Country A has greater financial and technological capacity to mitigate environmental harm. The principle of CBDR requires Country A to take responsibility for its disproportionate contribution to environmental degradation and assist Country B, a developing nation, in addressing the damage caused.

4. Polluter Pays Principle:

   • Country A, as the source of pollution, should bear the financial costs of the environmental damage in Country B. This includes compensation for economic losses and funding measures to prevent further harm.

C – Conclusion:

Country A has violated the no harm principle by failing to prevent transboundary pollution and its associated environmental damage to Country B. Its reliance on state sovereignty is unjustified, as IEL limits this right when it conflicts with the environmental rights of other states. The tribunal should find Country A liable under the polluter pays principle and require it to compensate Country B for the harm caused. Furthermore, under the CBDR principle, Country A should implement pollution control measures and assist Country B in mitigating the damage.

The tribunal’s decision would reinforce the principles of IEL, promoting accountability and sustainable development.

Problem-Based Question (PBQ)

Scenario:

Countries X, Y, and Z share a large freshwater lake, Lake Harmonia, which is vital for drinking water, agriculture, and fishing. Country X, an industrialized nation, operates several factories on the shore of the lake, dumping untreated chemical waste into the water. This has led to significant pollution, including the presence of toxic chemicals, heavy metals, and other pollutants that have harmed the aquatic ecosystem.

Country Y, located downstream, relies heavily on Lake Harmonia for its agricultural economy and drinking water. The pollution has caused severe health issues for its population and diminished agricultural productivity. Additionally, Country Y argues that Country X’s actions violate its right to clean water and sustainable use of shared resources.

Country Z, a developing nation located further downstream, uses Lake Harmonia primarily for fishing. However, the fish stocks in the lake have declined drastically due to pollution and loss of biodiversity. As a result, Country Z’s economy, which depends on fisheries, has been severely impacted, leading to social unrest and economic instability. Country Z has asked for immediate compensation from Country X and technological support to address the pollution’s effects.

Despite repeated negotiations, no consensus has been reached. Country X insists that it has sovereign rights to exploit its territory and resources as it sees fit. Countries Y and Z have now jointly brought the matter to an international court, alleging that Country X has violated the principles of no harm, sustainable development, equitable use of shared resources, and common but differentiated responsibilities (CBDR). They also invoke obligations under multilateral environmental agreements (MEAs), such as the Stockholm Convention, the UN Watercourses Convention, and the Convention on Biological Diversity (CBD).

You are tasked with advising the court.

Answer: Using ILAC

I – Issues:

1. Has Country X violated the no harm principle by polluting Lake Harmonia and causing transboundary harm to Countries Y and Z?
2. Does Country X’s invocation of sovereignty justify its actions, considering the principle of equitable and sustainable use of shared resources?
3. Are Countries Y and Z entitled to compensation and assistance under the principles of CBDR, polluter pays, and sustainable development?
4. What obligations arise under relevant treaties and MEAs, and have they been breached?

L – Law:

Relevant principles, cases, and treaties:

1. Principles of International Environmental Law:

• No Harm Principle:

  • Established in the Trail Smelter Case (1941) and reaffirmed in the Stockholm Declaration (Principle 21) and Rio Declaration (Principle 2). This principle prohibits states from using their territory in a way that causes harm to other states.

• Equitable and Sustainable Use of Shared Resources:

  • Articulated in the UN Watercourses Convention (1997), which requires equitable utilization and sustainable management of transboundary watercourses.

• Common but Differentiated Responsibilities (CBDR):

  • Recognized in Rio Principle 7, this principle acknowledges that industrialized nations, due to their greater contributions to environmental harm, have a heightened responsibility to mitigate damage and assist developing nations.

• Sustainable Development:

  • Defined in the Brundtland Report and emphasized in the Rio Declaration (Principle 3). Sustainable development seeks to balance economic, social, and environmental interests, ensuring present needs are met without compromising future generations.

• Polluter Pays Principle:

  • Outlined in Rio Principle 16, this principle requires those who cause environmental harm to bear the costs of prevention and remediation.

2. Relevant Treaties and Agreements:

• UN Watercourses Convention (1997):

  • Provides a framework for the equitable and reasonable use of transboundary watercourses and prohibits significant harm.

• Convention on Biological Diversity (1992):

  • Requires states to conserve biodiversity and sustainably use natural resources.

• Stockholm Convention on Persistent Organic Pollutants (2001):

  • Obliges parties to reduce and eliminate the release of hazardous chemicals that persist in the environment and harm ecosystems.

3. Relevant Case Law:

• Trail Smelter Case (1941):

  • A landmark case establishing the principle of transboundary harm and the obligation of states to prevent pollution that causes damage to other states.

• Pulp Mills on the River Uruguay Case (2010):

  • Addressed disputes over a shared watercourse, emphasizing the obligation to conduct environmental impact assessments (EIAs) and cooperate with affected states.

• Gabcikovo-Nagymaros Project Case (1997):

  • Highlighted the principle of sustainable development and the need to balance environmental protection with economic development in shared resource disputes.

A – Application:

1. No Harm Principle:

• Country X’s pollution of Lake Harmonia has caused significant transboundary harm, violating the no harm principle established in the Trail Smelter Case and codified in Rio Principle 2. The pollution has directly impacted the health, economy, and environment of Countries Y and Z.

2. Sovereignty vs. Shared Resources:

• While Country X has sovereign rights over its resources, these rights are limited by its obligations under the UN Watercourses Convention to ensure the equitable and sustainable use of shared resources. Similar to the Pulp Mills Case, Country X should have conducted an environmental impact assessment (EIA) and consulted with Countries Y and Z before continuing its harmful practices.

3. CBDR and Sustainable Development:

• As an industrialized nation, Country X has greater financial and technological capacity to mitigate environmental harm. Under the CBDR principle, it bears a heightened responsibility to address the pollution and assist Countries Y and Z in adapting to the damage caused. This obligation is reflected in the Rio Declaration (Principle 7) and the Stockholm Convention, which Country X has violated by failing to control hazardous chemical releases.

4. Polluter Pays Principle:

• Consistent with the polluter pays principle, Country X should bear the costs of environmental remediation, compensation for economic losses, and funding for sustainable resource management in Countries Y and Z.

5. Biodiversity and International Obligations:

• The decline in fish stocks and biodiversity in Lake Harmonia violates Country X’s obligations under the CBD, which requires states to conserve biodiversity and ensure its sustainable use. Country X’s actions also breach the Stockholm Convention, as it has failed to regulate the release of hazardous chemicals.

C – Conclusion:

Country X has violated multiple principles of international environmental law, including the no harm principle, CBDR, and polluter pays, as well as its obligations under treaties such as the UN Watercourses Convention, CBD, and Stockholm Convention. The court should rule in favor of Countries Y and Z, requiring Country X to:

1. Compensate Countries Y and Z for economic and environmental damage.
2. Fund remediation efforts, including cleanup of Lake Harmonia and restoration of biodiversity.
3. Provide technological and financial support to assist Countries Y and Z in adapting to the pollution’s effects.
4. Implement stricter pollution control measures and conduct regular EIAs to prevent future harm, in compliance with international law.

Scenario:

The Great Green Belt, a critical transboundary rainforest ecosystem spanning Countries A, B, C, and D, is a globally significant area for biodiversity and carbon sequestration. The rainforest also serves as a livelihood source for millions of indigenous peoples and rural communities. The ecosystem is governed by international environmental agreements such as the Convention on Biological Diversity (CBD) and the UN Framework Convention on Climate Change (UNFCCC), and its protection is critical to achieving global climate goals.

The Crisis:

1. Country A (an industrialized nation):

   • Country A has issued permits for multinational corporations to extract rare minerals essential for clean energy technologies (e.g., lithium and cobalt) in its part of the rainforest.
   • The extraction process has led to deforestation, disruption of wildlife corridors, and contamination of rivers, which flow into Countries B, C, and D. Despite being a signatory to the Convention on Biological Diversity and the Paris Agreement, Country A claims these activities are necessary for global climate mitigation goals (e.g., the shift to electric vehicles).

2. Country B (a downstream developing nation):

   • Rivers originating in Country A are now polluted with toxic mining waste, leading to fish deaths and contamination of drinking water. Country B relies heavily on fishing and agriculture for its economy and accuses Country A of violating the no harm principle and the polluter pays principle. Country B lacks the resources to address the crisis and demands compensation and restoration measures.

3. Country C (a developing nation hosting indigenous communities):

   • Indigenous groups in Country C, who depend on cross-border access to the rainforest for sustenance and cultural practices, have been restricted from traditional areas due to deforestation and mining activities in Country A. This violates provisions under the Nagoya Protocol (CBD) concerning access to genetic resources and the rights of indigenous peoples.
   • Indigenous groups from Country C have petitioned international courts, citing violations of FPIC (Free, Prior, and Informed Consent) principles.

4. Country D (an island nation vulnerable to climate change):

   • Country D is highly dependent on the rainforest ecosystem for climate stabilization and accuses Country A of undermining global efforts to combat climate change. Country D argues that deforestation in the Great Green Belt contributes to rising global temperatures and violates commitments under the Paris Agreement and Rio Declaration. It seeks international sanctions on Country A for failing to meet climate goals.

5. Complications:

   • Country A justifies its actions under the common but differentiated responsibilities (CBDR) principle, arguing that industrialized nations must supply critical minerals for the global transition to clean energy.
   • International corporations involved in mining argue that their operations are lawful and approved by Country A, and any compensation claims should be directed at the state, not private entities.
   • Global NGOs have taken action, demanding that all four nations prioritize the rainforest’s protection as a common concern of humankind. However, none of the nations can agree on the scope of their respective obligations.
   • Countries B, C, and D have sought arbitration under international environmental law frameworks, alleging that Country A has breached its treaty obligations and customary principles of international law.

Legal Issues to Address:

1. Has Country A violated the no harm principle by allowing mining activities that pollute transboundary rivers?
2. To what extent does sovereignty allow Country A to exploit its natural resources, considering the principle of sustainable development and shared natural resources?
3. Have the rights of indigenous peoples in Country C been violated under the Nagoya Protocol and FPIC principles?
4. Can Country D seek international sanctions for the global climate impacts of deforestation, invoking the Paris Agreement and CBDR principle?
5. Are multinational corporations operating in Country A jointly liable under international law, or does responsibility rest solely with the state?

Answer: Using ILAC

I – Issues:

1. Has Country A breached the no harm principle, and is it liable for transboundary harm caused to Countries B, C, and D?
2. Do the principles of sovereignty and CBDR justify Country A’s actions?
3. Have the indigenous communities in Country C been denied their rights under international law?
4. Can deforestation and mining activities in Country A be sanctioned under international climate agreements and the polluter pays principle?
5. Are multinational corporations also accountable under international law?

L – Law:

Key principles, treaties, and cases:

1. Principles:

• No Harm Principle: Established in the Trail Smelter Case (1941) and reaffirmed in Stockholm Principle 21 and Rio Principle 2, this prohibits states from causing environmental harm to other states.
• Sustainable Development: Emphasized in Rio Principle 3 and cases such as the Gabcikovo-Nagymaros Project Case (1997), it seeks to balance environmental protection with economic development.
• CBDR Principle: Found in Rio Principle 7 and the UNFCCC, this principle recognizes differentiated responsibilities for industrialized and developing nations in environmental protection.
• Polluter Pays Principle: Codified in Rio Principle 16, it requires polluters to bear the costs of environmental harm.
• Free, Prior, and Informed Consent (FPIC): Recognized in the Nagoya Protocol and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), FPIC protects indigenous rights in accessing natural resources.

2. Treaties:

• Convention on Biological Diversity (CBD) and the Nagoya Protocol: Obligations to conserve biodiversity, protect indigenous rights, and ensure equitable benefit-sharing.
• Paris Agreement (UNFCCC): Legally binding commitments to reduce greenhouse gas emissions and limit global temperature rise.
• UN Watercourses Convention (1997): Obligations to ensure equitable and sustainable use of transboundary watercourses.
• Stockholm Convention on Persistent Organic Pollutants: Requires states to reduce and eliminate the release of hazardous substances.

3. Cases:

• Trail Smelter Case (1941): Found states liable for transboundary harm caused by industrial activities.
• Pulp Mills on the River Uruguay Case (2010): Highlighted obligations to conduct environmental impact assessments and consult affected states.
• Gabcikovo-Nagymaros Project Case (1997): Emphasized sustainable development in shared resource disputes.
• Indigenous Peoples’ Land Case (Endorois Case, 2010): Established protections for indigenous land rights under FPIC.

A – Application:

1. No Harm Principle:

• Country A’s mining activities have caused transboundary pollution, violating the no harm principle established in the Trail Smelter Case and codified in the UN Watercourses Convention. Countries B and C have suffered environmental and economic damage, while Country D faces global climate repercussions. This harm exceeds the threshold of “significant” damage required for liability under international law.

2. Sovereignty vs. Shared Resources:

• While Country A has sovereign rights over its resources, its activities must comply with international obligations, including the sustainable use of shared resources under the UN Watercourses Convention and Rio Principles. Similar to the Pulp Mills Case, Country A failed to conduct an environmental impact assessment or consult affected states.

3. Indigenous Rights (Nagoya Protocol and FPIC):

• Country A has violated the rights of indigenous peoples in Country C by denying them access to genetic resources and failing to secure their Free, Prior, and Informed Consent (FPIC). This breaches obligations under the Nagoya Protocol and relevant human rights frameworks (e.g., UNDRIP).

4. Climate Commitments (Paris Agreement):

• Deforestation in Country A undermines global climate goals, violating its commitments under the Paris Agreement. Country D can argue that these activities threaten the common concern of humankind and seek international sanctions, similar to the reasoning in the Gabcikovo-Nagymaros Case, which emphasized global environmental responsibilities.

5. Corporate Liability:

• While primary responsibility rests with Country A, multinational corporations could also be held accountable under emerging norms of corporate responsibility in environmental law, such as those in the OECD Guidelines for Multinational Enterprises.

C – Conclusion:

Country A has breached multiple principles of international environmental law, including the no harm principle, sustainable development, FPIC, and obligations under treaties such as the CBD, Nagoya Protocol, and Paris Agreement. The international court should:

1. Require Country A to:
   • Cease harmful activities.
   • Compensate Countries B, C, and D for environmental and economic damage.
   • Fund biodiversity restoration and technological assistance.
2. Impose sanctions for non-compliance with climate commitments under the Paris Agreement.
3. Establish corporate accountability measures to ensure compliance with environmental norms.

This decision would reaffirm the interconnected nature of environmental issues, prioritizing global cooperation and justice for vulnerable states and communities.

Nagoya Protocol

The Nagoya Protocol is a supplementary agreement to the Convention on Biological Diversity (CBD), adopted in 2010 in Nagoya, Japan, and entered into force in 2014. It provides a legal framework for the fair and equitable sharing of benefits arising from the utilization of genetic resources, which is one of the three key objectives of the CBD. The Protocol focuses on fostering sustainable use of biodiversity, protecting indigenous rights, and promoting equitable partnerships between states, organizations, and indigenous/local communities.

Key Provisions of the Nagoya Protocol:

1. Access to Genetic Resources (Article 6):

   • Genetic resources refer to biological material with actual or potential value, such as plants, animals, or microorganisms, often found in biodiverse regions.
   • The Protocol requires prior informed consent (PIC) from the country of origin before accessing genetic resources.
   • Example: Pharmaceutical companies seeking to develop medicines from plant-based resources must first obtain consent from the resource-rich country and indigenous communities.

2. Benefit-Sharing (Articles 5, 15):

   • Those who use genetic resources must negotiate mutually agreed terms (MAT) to share benefits (monetary or non-monetary) with the source country or community.
   • Benefits can include royalties, technology transfer, capacity-building, or joint ventures.

3. Traditional Knowledge (Articles 7, 12):

   • Recognizes the role of indigenous and local communities in conserving biodiversity and using genetic resources.
   • Accessing traditional knowledge associated with genetic resources also requires FPIC and fair benefit-sharing.

4. Compliance Measures (Articles 15, 16, 17):

   • Parties to the Protocol are required to establish measures to ensure compliance with access and benefit-sharing (ABS) requirements, including legal remedies for breaches.

5. Capacity-Building and Technology Transfer (Articles 22, 23):

   • Encourages developed countries to assist developing nations in implementing the Protocol through funding, training, and technology transfer.

Significance of the Nagoya Protocol:

• Protects biodiversity by ensuring its sustainable and equitable use.
• Empowers indigenous communities by giving them control over their traditional knowledge and resources.
• Helps bridge the gap between developed nations (often the users of genetic resources) and developing nations (often the providers of these resources).
• Provides a legal tool for states and communities to combat biopiracy, where genetic resources are exploited without consent or compensation.

Application in the Scenario:

In the scenario, Country C’s indigenous communities argue that mining activities and deforestation by Country A have violated their FPIC rights under the Nagoya Protocol. These activities disrupt access to genetic resources in the shared rainforest, which indigenous communities depend on for food, medicine, and cultural practices. Country A failed to obtain prior informed consent or negotiate mutually agreed terms for using these resources, violating Articles 6 and 7 of the Protocol.

Polluter Pays Principle

The polluter pays principle is a cornerstone of international environmental law and was explicitly recognized in Principle 16 of the Rio Declaration (1992). It is a policy tool designed to ensure that those who cause environmental damage bear the costs of preventing, mitigating, and remediating that harm. This principle is central to achieving environmental justice and sustainability.

Key Aspects of the Polluter Pays Principle:

1. Responsibility for Costs:

   • Polluters are financially responsible for:
     • Preventing environmental damage (e.g., implementing pollution control technologies).
     • Remedying damage they cause (e.g., cleaning up polluted areas).
     • Compensating affected parties (e.g., states or communities harmed by pollution).

2. Internalization of Costs:

   • Environmental costs should not be borne by the public (e.g., taxpayers) or future generations.
   • Polluters are required to internalize environmental costs into their economic activities, making polluting activities more expensive and less attractive.

3. Liability:

   • Polluters may be held legally liable for damages under international or domestic law. This can include transboundary harm, as seen in cases like the Trail Smelter Case (1941).

4. Economic Incentives:

   • The principle also acts as a deterrent, encouraging industries and corporations to adopt cleaner production methods and invest in sustainable practices to avoid financial penalties.

Legal Basis:

1. Rio Declaration (Principle 16):

   • States that “national authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments.”

2. Stockholm Declaration (1972):

   • Implicitly recognized the principle by emphasizing accountability for environmental harm.

3. Regional and Domestic Implementation:

   • European Union environmental policies (e.g., the Environmental Liability Directive) rely heavily on the polluter pays principle.
   • National laws often adopt it to manage industrial pollution, hazardous waste, and environmental accidents.

4. Case Law:

   • Trail Smelter Case (1941): Established that a state causing transboundary pollution is responsible for remedying the damage.
   • Pulp Mills Case (2010): Reinforced that states must take preventive action to avoid environmental harm and are liable for polluting activities.

Significance of the Polluter Pays Principle:

• Encourages accountability and fairness, ensuring that polluters—not victims or governments—bear the costs of environmental harm.
• Acts as an economic tool to incentivize sustainable practices and discourage harmful activities.
• Promotes environmental justice by compensating affected states and communities.

Application in the Scenario:

In the scenario, Country A is liable under the polluter pays principle for the toxic waste it has released into Lake Harmonia, which has caused harm to the ecosystems and economies of Countries B, C, and D. This pollution has led to significant costs for cleanup, compensation, and loss of livelihoods. Country A should:

• Compensate Country B for the loss of agricultural productivity and clean water.
• Compensate Country C’s indigenous communities for the disruption of their access to resources and cultural practices.
• Support Country D in addressing the global climate impacts of deforestation and pollution.

The polluter pays principle ensures that Country A internalizes the costs of its environmentally harmful actions, providing justice for the affected states and promoting global environmental accountability.