The Long-Range Transboundary Air Pollution (hereinafter, ‘LRTAP’) Convention, to which India is also a signatory, came into force under the United Nations Economic Commission for Europe (hereinafter, ‘UNECE’). As Viñuales argues, the uniqueness of the instrument is visible in the legal technique of a ‘framework convention/protocol approach’ that it employs. It contains anthropocentric as well as eco-centric components in the meaning given to ‘pollution’. While states adhere to the mild commitment of undertaking national measures to reduce pollution levels, inter-state cooperation is also encouraged. Its robust functioning takes place through numerous subsidiary bodies like the Executive Body, Secretariat and scientific body governed through the Steering Committee and the eight protocols of the LRTAP Convention. However, it fails to address the issue of liability for two reasons: (i) the difficulty in establishing a causal nexus between harm and damage; and (ii) the inevitable political disagreements precluding the possibility of a consensus among states. Notably, these challenges apply to the ozone and climate change regimes as well.
In fact, Byrne discusses how the LRTAP regime covers a variety of issues from air pollution and eutrophication all the way to the role of toxic chemicals in contamination. While some states have found it hard to achieve their commitments related to persistent organic pollutants (POPs), volatile organic compounds (VOCs) and nitrogen oxide (NOX), the reduction and prevention obligations under Article 2 have largely been fulfilled. While the absence of legal ramifications for non-compliance may encourage more participation from nation-states when the regime is in its nascent stages, the subsequent passage of the National Emissions Ceiling shows how sophisticated reforms can be introduced and effectively implemented only when the obligations are binding. Most states in the European Union have pursued their commitments, although soft law measures may serve some Eastern European countries better. The Eastern Europe, the Caucasus, and Central Asia (EECCA) Coordinating Group is a welcomed initiative in that regard. In fact, this group can also have a crucial role to play in respect of technology transfers to non-EU countries. Thus, while non-binding measures help increase participation, binding instruments seem to be more effective. While the regime largely has mandatory provisions, they reflect rather general principles, which creates ambiguity. However, it allows for greater flexibility and increases effectiveness. Nonetheless, critics have questioned its success since most emission reductions have taken place through energy policy changes and deindustrialisation efforts.
Generally, while Principle 21 of the Stockholm Declaration, 1972 influenced the Trail Smelter Arbitration in its application of the ‘no harm’ principle, environmental law principles have featured sparsely since then. These include the principle of Common but Differentiated Responsibility, the sustainable development principle, and even consultation and exchange of information. Nonetheless, the Protocols since 1994 have referred to the precautionary principle in their Preambles. While the principles have not been well integrated, the precise nature of the regime makes it successful. With scientific uncertainty no longer a strong enough excuse, the incorporation of more principles of environmental law would make the LRTAP Convention even more effective.
Okowa traces the inability to link the emissions to the harm/damage all the way back to the Trail Smelter Arbitration. While the LRTAP Convention was enacted principally in response to lake pollution and forest acidification in the European context, the influence of air pollution on matters of health in Asia has ensured that the regime evolves with time and considers new, emerging factors. Since pollutants go through various atmospheric and chemical processes and changes, it is impossible to narrow down the causes of the pollution as well as its effects. Moreover, the estimates based on monitoring techniques depend on the data supplied by the state as well as unpredictable weather changes and patterns. The involvement of several status, evidentiary challenges, and the difficulty in attributing the belated harm to the pollutants constitute some of the problems. Bilateral and multilateral agreements and treaties have thus been important in addressing the problem. Even with this treaty regime, customary law continues to play a role. This is because the treaty lacks hard obligations; precepts like the due diligence principle and the polluter pays principle only make sense considering the customary law regime; and because customary law covers situations not covered by treaty law, like cases of historic pollution. Notable provisions in the LRTAP Convention include the wide latitude given to reduce pollution under Article 3 and the due diligence obligations under Article 6. Notwithstanding its strong foundations, limitations of the LRTAP Convention include state reluctance to accept commitments due to scientific uncertainty surrounding the impact of pollution and the cry for flexibility in implementing such regimes. Among its protocols, the 1994 Sulphur II Protocol was effective in introducing flexible emission reduction targets depending on the contribution of the states towards the sulphur problem. Parties are thus obligated not to cross stipulated loads, with its Annex laying out the annual reduction timings and level. Moreover, the formal incorporation of extra-legal mechanisms of energy-efficient plans and economic incentives into the Protocol is welcome. Its system of continuous monitoring, reporting a periodic review through an Implementation Committee under Article 7, also helps strive for compliance. While regional arrangements for the reduction of pollution are preferable, the LRTAP regime has stood the test of time. However, it will have to be modified to reflect new forms of pollution in developing countries in Africa and Asia to continue being relevant.
While conventions like the LRTAP have had considerable success, lags in implementation persist. Climate litigation has the potential to fill this vacuum. However, there are difficulties in pursuing cases before international courts and tribunals. For instance, Vinuales highlights the challenges faced by adjudication or quasi-adjudication fora, mainly how the irreversible nature of damage weakens the incentive to undertake reparation measures. It is difficult to establish any sort of causal chain between the act committed, the damage caused, and the compensation sought. The lack of judicialization of the international environmental law and its taking place outside largely the system can be partly attributed to state reluctance to submit to new models, rules that are not well-understood, or label the dispute as ‘environmental’ by nature. On one hand, there is specialised environmental law adjudication, which is done in three ways: using environmental treaties having dispute settlement clauses (such as under Article 27(3) Biodiversity Convention), enforcing procedures within the institution {Permanent Court of Arbitration and its Optional Rules, or the Chambers in the International Court of Justice and the International Tribunal for the Law of the Sea (although the last two have never been used)}, or creating an international environmental court. The last of these has technical difficulties, like which instruments to refer to, the extent of reliance on customary law, tensions with other courts, grappling with the vague nature of environmental norms, and a lack of clarity on what functions they should fulfil. On the other hand, we have borrowed fora, where environmental issues are adjudicated by bodies specialising in other areas, like trade law.
Brilman writes about the Amazon decision rendered by the Inter-American Court of Human Rights, wherein the court undertook a broad construction of its jurisdiction to extend it to environmental and human rights realisation and protection. The jurisdiction thus rested with the state in whose territory the activity was being realised and could thus take measures to control the situation to prevent transboundary harm that would affect others’ human rights. Given the conferment of legal status to the Amazon River by the Colombian Supreme Court, the local authorities could be held to infringe domestic legal provisions for failing to exercise effective control by enacting intergenerational agreements and action plans to prevent greenhouse gas emissions and deforestation.
In the same vein, Banda shows how the Inter-American Court of Human Rights recognises the transboundary state responsibility for pollution in the context of Colombia’s offshore projects. With the right against environmental degradation being potentially justiciable in itself, liability is attracted if a causal relationship between the activity and the resulting harm is established. While effective control looks at the extent of state influence over domestic activities, its extraterritorial application depends on the case at hand. The content of the ensuing duties includes preventing significant environmental harm. Initiatives like best practices, environmental impact assessments and other contingency plans help in this regard. With well-established substantive and procedural duties, transboundary climate litigation is being increasingly recognised. Provided that a link between the failure to conduct due diligence and harm is proved, a broad extraterritorial application can help establish higher compliance standards for multinational corporations. This can induce positive change when it comes to industrial practices in the Americas and can help shape the jurisprudence of national and international courts and tribunals.
However, specialised fora suffer from their own fair share of problems. Borrowed fora and jurisdictions deal with disputes with environmental components, where the matter is looked at by specialised courts and phrased in a way that suits their specialisation. This is problematic in that if harmonisation of trade is the main objective, environmental protection becomes a side purpose. Fields like trade law need expertise and suffer from jurisdictional limitations, as certain environmental disputes have no link with underlying substantive law like trade law or human rights law. In an interesting shift, human rights have the potential to encompass broader notions of a healthy environment as a precondition to the enjoyment of human rights. Earlier, environmental rights were ancillary to human rights questions but are increasingly coming to the fore thanks to and gaining importance due to an increase in climate litigation. Environmental law principles are nonetheless used to specify human rights obligations, as seen in Tatar v. Romania. However, there are problems with possible forum shopping. Moreover, on an examination of the jurisprudence of the Strasbourg court, we see that protection is only provided for the core of the right. For instance, the right to water has been developed by the United Nations Human Rights Council, which calls for a right to 10 litres per day, which is a relatively small quantity. However, this only protects your basic human rights, and to achieve a higher outcome under environmental law, you would need to lodge a case elsewhere than in a human rights court.
While there have been dedicated administrative courts, there has been an increasing demand for an international environmental court. Despite more expertise, agreeing to proceedings is a huge step in resolving disputes. It requires a huge concession by states to submit disputes to jurisdiction, and to agree to binding jurisdiction. Even in forms of quasi-adjudication, like commissions of enquiry, the way facts are cast depends on the positions adopted by states. Moreover, if states can get a judgement from the International Court of Justice (hereinafter, ‘ICJ’), no state would agree to get matter heard by sub-set of judges in the environmental chamber. The Paris Agreement allows parties to submit disputes under the agreement to the ICJ. The ICJ does have consensual jurisdiction through its optional clause in the ICJ statute, wherein any country ratifying it can bring a dispute under the Statute to the ICJ. Even in this, however, most countries have reservations about ratifying such clauses.
However, Peel and Lin note that most climate litigation takes place in the Global North, as seen in Massachusetts v. EPA and the Urgenda litigation, among others. Conversely, there is scant litigation on such cases in the Global South despite them being more vulnerable to climate change. This disparity requires a readjustment of the lens through which we view transnational climate litigation. Taking more notice of decisions made by domestic courts in the Global South can help draw lessons and apply them to climate change claims in the Global North. While the North can benefit from the local knowledge and experiences of the South, the South can benefit from the expertise and financial resources of the North. Inspirational jurisprudence from cases like Leghari in Pakistan can also be applied by judges and litigants while addressing local claims in other nations in the Global South. The legal remedies crafted by creative judges in the South can serve as a model for other cases in both the South and the North. Uniquely, strategic partnering between plaintiffs from the North and the South can be beneficial. Exchange, even between South-South countries, can help. For example, the Indonesian Centre for Environmental Law, in supporting petitioners against a coal plant in Bali, drew on its communications with the Centre for Environmental Rights in South Africa, which was a part of the first climate change case in South Africa. In the two areas of litigation, significant differences emerge. The South relies on a constitutional/human-rights basis in environmental petitions to strengthen their claims, whereas rights-based claims are less frequent in the North. The North seeks more stringent regulation, whereas individual and NGO litigants in the South seek enforcement of existing adaptation and mitigation policies. For instance, there was a focus of the Leghari litigation on Pakistan’s National Climate Change Policy and enforcement of adaptation measures. Such cases mostly target commercial practices that are carbon-intensive, like coal plants, oil palm cultivation, mining, etc. Another difference is how the South cleverly packages climate-related claims along with other public policy issues. This is an effective tool in cultures where (i) the salience of other public policy issues is greater, and (ii) there is considerable judicial restraint in granting relief on climate issues in these activist forms of litigation. In the South, legal frameworks on climate law are weaker due to insufficient resources or poor implementation of existing laws. Climate claims thus become ancillary to other more visible pressing issues like disaster management, land use, natural resource conservation, loss of biodiversity, etc. As a governance tool, climate litigation only serves a supplementary function. For climate litigation to be truly transnational, the experiences of the Global South have to be taken into account. Its docket of cases should ideally exclude claims where climate change is incidentally mentioned and are peripheral in the larger scheme of the litigation. This is because they bring about no concrete, meaningful advancement of climate jurisprudence. Reliance on existing policies is preferred over seeking to bring about regulatory reform. They tend to seek enforcement of existing laws due to the prevailing judicial culture of limited review in such cases. Instead, most rights-based claims in the South refer to the doctrine of public trust (for instance, MC Mehta v. Kamal Nath & Ors.) or the requirement to conduct an environmental impact assessment as one of the grounds. This is because courts in the South are more receptive to the use of these innovative principles and obligations. While it helps fill gaps and hold the executive to account, courts have jurisdictional limitations, attract fears of unbridled judicial encroachment into the policy space and may disregard the broader implications when delivering extremely fact-specific decisions. Nonetheless, the goal should be to bring climate change considerations to the core of these cases so that they are integrated into mainstream litigation rather than being mentioned merely in passing.
About the Author Dushyant Kishan Kaul [Advocate, Delhi High Court; LLM (University of California, Berkeley; University of Cambridge), L.L.B. (JGLS)] Editorial Team: Managing Editor: Naman Anand
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