The “Pollution” concept in International Law

The Pollution" Concept in International Law by

The concept o f "pollution" plays a crucial part in international environmental law to the extent that Barres and Johnston called their collected references on international environmental law which appeared& 19 74, "The International Law o f Pollution" (New York; The Free Press). As the word "poilution" forms the starting point for regulations on transfrontier pollution, prevention, liability and damages, this article takes a closer look at to what it actually refers. Various Definitions As early as 1924, at a conference of the International Law Association, Bisschop argued that pollution of the sea was illegal and he placed the concept within a certain framework: "Should therefore any person commit an act of pollution whereby the inoffensive use of the water becomes impossible either for animal life or human use, or create a danger to such life or such use, such person would commit an offence against mankind." 1 In international documents pollution is defined both with regard to a certain element and in a general sense. In the Helsinki-rule o f 1966, pollution of inland-waterways is defined as follows: "the term 'water pollution' refers to any detrimental change resulting from human conduct in the natural composition, content or quality of the waters of an international drainage basin". 2 The European Water Charter o f 1968 states: "Pollution is a change, generally man-made,in the quality of water which makes it unusable or dangerous for human consumption, industry, agriculture, fishing, recreation, domestic animals and wildlife."a That same year, the "Declaration of Principles on Air Pollution Control" by the Council of Europe lent meaning to the concept of "Air Pollution": "Air is deemed to be polluted when the presence o f a foreign substance or a variation *Assistant-Professor of International Public Law, University of Amsterdam. Environmental Policy and Law, 5 (1979)

P. van H E I J N S B E R G E N *

in the proportion of its components is liable to have a harmful effect or to cause nuisance. ''4 With regard to Marine Pollution, the so-called GESAMP-definition, drafted by the United Nations Group of Experts on the Scientific Aspects of Marine Pollution in 1969, still carries weight: "The introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) resulting in such deleterious effects as harm to living resources, hazards to human health, hindrance to marine activities including fishing, impairment of quality or use of sea water, and reduction of amenities. ''s The Ottowa-Guidelines of the Stockholm Conference 6, the Revised Single Negotiating Text on the Law of the Sea 7 and the Barcelona Convention for the Protection of the Mediterranean Sea against PollutionS concluded in 1976, all refer to the same definition. Pollution in a general sense comes under discussion in the Stockholm Declaration on the Human Environment o f 1972, and is defined as: "The discharge of toxic substances or of other substances and the release o f heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless". 9 Another general definition is to be found in the OECD Recommendation of 1974 regarding 'Principles concerning Transfrontier Pollution': "pollution means the introduction by man, directly or indirectly, of substances or energy into the environment resulting in deleterious effects o f such a nature as to endanger human health, harm living resources and ecosystems, and impair or interfere with amenities and other legitimate uses of the environment". 1°

The Event Causing Pollution The common nucleus of the definition is the event causing pollution. Rest refers to the "causing action ''H . In the GESAMP, Stockholm and OECD definitions, this is covered by the "introduction" or "discharge" into the

environment of (toxic) substances, energy or the release of heat. These are the potential pollutants. Indeed, in the concept-Charter of Nature o f the IUCN the term pollution is replaced by the "discharge of pollutants". 12 The preparatory report for the Stockholm Conference on identification and control of pollutants of international significance, contains the following observation on this subject: "Human activities inevitably and increasingly introduce material and energy into the environment; when that material or energy endangers or is liable to endanger man's health, his well-being or his resources directly or indirectly, it is called a pollutant". 13 Both the GESAMP and the OECD definitions specify the introduction by man. The Stockholm definition contains no such specification, but the wording of the definition seems to show that mainly human action is meant. The Helsinki and Water Charter definitions are based more on the actual event than on human activity. In these, the event of pollution refers more to a "change" in the quality, the natural composition and the content o f the water. The greater objectivity of the concept of "change" allows for a wider field of application than do "introduction" or "discharge". In this concept, the influence of man is less intrinsically bound to the event causing pollution. Indeed, the Water Charter refers to the change as being no more than "generally manmade". There are events causing pollution in which the influence of man is causally far removed, or perhaps impossible to prove. Yet, these could necessitate preventive measures or give rise to liability. Human activity as such, however, is not absolutely bound to the concept of pollution. Based on the obligation to use due diligence in the international community, omitting to act in a case of transfrontier pollution not directly caused by man in a certain state, could mean negligence with regard to the state where the effect manifests itself. 11

The concept of "alteration" as propounded b y Gaja in his observations on "River pollution in international law", is more related to active human interference: "an alteration in the quality o f the water which makes it less suitable for any o f all the purposes for which it would be suitable in its natural state". 14 With the use o f the concept of "change" as the event causing pollution, we reach the bounds of the common meaning o f the word "pollution". As it would seem desirable that scientific language-use be as closely attuned as possible to the common spoken language, the use o f terms possibly covering a wider field must be considered• This is the more urgent as, in principle, "changeg' could also mean the withdrawal of substances of energy from the environment. The Qualifying Effect The event causing pollution, together • I w~th the effects of that event, form the overall picture o f pollution, in the sense that the effects qualify the event. Some definitions merely point out that the effect must be "harmful" or "detri-

mental". In the Stockholm definition the effect is approached from the opposite side; it must not be harmless: "... in such quantities or concentrations as to exceed the capacity o f the environment to render them harmless". The Water Charter, GESAMP and OECD definitions specify the effects, the latter two alluding to this specification under the heading "deleterious effects". These concern mainly human health, all sorts o f human activities (such as fishing, industry and recreation) and on the other hand living resources and ecosystems and the immaterial concept o f "amenities". This enumeration contains the nucleus of the interests which we wish to protect through international environmental law is. One is struck b y the fact that, as time goes by, more attention has come to be paid to interests which are not directly human and to immaterial values. A fairly general enumeration o f these effects, be it related to the sea, is to be found in Principle 7 o f the Stockholm declaration: "States shall take all possible steps to prevent pollution o f the seas b y substances that are liable to

1 w. R• Bisschop, Oil in navigable waters, Report of the Thirty Third Conference of the International Law Association, Stockholm, Sept. 1924, p. 338. 2 Helsinki Rules on the use of the waters of international rivers, Chapter 3, Art. IX, Report of the Fifty Second Conference of the International Law Association, 1966, p• 494. 3 European Water Charter of the Council of Europe, Strasbourg, 1968. 4 Resolution of the Committee of Ministers, March 8th 1968, p. 4. 5 GESAMP, Report of First session 1/11, para 12, March 1969. 60ttowa-Guidelines and principles for the preservation of the Marine Environment, proposed in November 1971 and adopted at Stockholm Conference 1972. 7 A/CONF.62]WP.8/Rev. 1, Part. II1, Chapter 1, Section I, Art. 1. 8 UNEP/GC/61/Add. 3, March 24th, 1976. 9 A/CONF.48/14/Rev. 1,p. 4. 10 OECD and the Environment, Paris, 1976, p. 53. 11 A. Rest, Convention on Compensation for Transfrontier Environmental Injuries, Beitr/ige zur Umweltgestaltung, Heft A 53, Berlin, 1976, p. 53. 12 IUCN General Assembly Paper GA. 78/12, p. 5. 13 A/CONF. 48•8. 14 G. Gaja, River Pollution in International Law in: The Protection of the Environment and International Law, Leiden, 1975, p. 371 ; and E/ECE/311, A Study on Water Pollution Control Problems in Europe, 26th Feb. 1956. 15 See G. W. Maas Geesteranus, De strijd tegen grensoversehrijding en waterverontreiniging, in: Volkenreehteli]ke Aspeeten van Waterverontreiniging, Deventer, 1972, p. 69. 16 A/CONF.48]I4/Rev. 1, p, 4. 17 Art. l(b) Tanker Owners Voluntary Agreement concerning Liability for Oil Pollution, 7til January 1969, International Legal Materials, 1969, p. 497 ; see also: art. 1E Contract regarding an interim supplement to Tanker Liability for Oil Pollution (CRISTAL), International Legal Materials, 1971, p. 137;and: art. 1,6 Convention on Civil Liability for Oil Spills, 3 Environmental Policy and Law2, 1977, p. 93. 18 A. Scott and Chr. Bo Bramsen, OECD doc. AEU/ENV/72.12, p. 53; The OECD Principles concerning transfrontier pollution only mention that: "Unless otherwise specified, these principles deal with pollution originating in one country and having effect within other countries", OECD and the Environment, Paris, 1976, p. 53. 19 Art. 1, Stockholm, February 19th 1974,1nternational LegalMaterials, 1974, p. 591. 20 Rest, op. cit., p. 17. 21 id. , art. 4 , p. 19. 22 Adopted by Resolution by the European Council of Environmental Law on April 1st 1978,

create hazards to human health', to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses o f the sea. ''16 The definition used b y Gaja is the most comprehensive, summarising as it does the effects as "making less suitable any o f all the purposes for which it would be suitable in its natural state". In liability regulations the concept o f "pollution damage" is used, referring to effects which, according to the documents concerned, could give rise to damages claims. In the TOVALOPagreement, "Damage by Pollution" refers to: "physical contamination to coastlines resulting directly from a discharge of oil, and does not include damage from fire or explosion, consequental damage or ecological impairment". 17 In the concept o f transfrontier pollution, the event causing pollution and the effects o f that event are separated b y state frontiers. According to the concept drawn up by Scott and Bo Bramsen, transfrontier pollution can be defined as: "any discharge of substances or release o f energy originating in the territory of one state that might cause damage, via natural media (air and water), in the territory of another state", t8

Other Terms

23 Rest, op. cit.,p. 97. 24 A. Ch. Kiss, La d6t6rioration du milieu marin r6sultant de l'exploitation et de l'exploration du fond de lamer ct de son sous-sol, 4 Environmental Policy and Law 2/3, 1978, p. 81.

Now that the concept o f "pollution" is so broadly defined, one may ask oneself if some other word would not fit the definition better. In the Convention on Protection of the Environment between Denmark, Finland, Norway and Sweden o f 1974, the basic concept is that o f "environmentally harmful activities": "environmentally harmful activities shall mean the discharge from the soil or from buildings or installations o f solid or liquid waste, gas or any other substance into watercourses, lakes or the sea and the use o f land, the seabed, buildings or installations in any other way which entails, or may entail environmental nuisance by water pollution or any other effect on water conditions, sand, drift air pollution, noise, vib ration, changes in temperature, ionizing radiation, light, etc. ''19 The advantage o f this term is that it already includes the effect and that it is therefore more clear in itself. However, "activities" are too closely related solely to human action. In his Draft for a Convention on Compensation for Transfrontier Environmental Injuries, Dr. A. Rest uses

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Environmental Policy and Law, 5 (1979)

4 Enviromnental Policy and Law 2/2,1978, p. 137.

the term "environmental impairment: " 'Environmental impairment' means any condition whereby human health or the environment is impaired by air pollution, water pollution, pollution in the soil, noise, tremors, sinking in the earth surface, odours, changes in temperature, ionizing radiation and similar effects on the environment which originate to a not insubstantial degree as a result of industrial processes or other human activities ;"2° In terms of the aim of this Convention, the impairment must be "substantial" in order to give rise to compensation .21 As both of the foregoing definitions contain as an element the concept of pollution, this may be considered to b e less comprehensive with regard to previous terms. To avoid defining "environment" itself, the element of environment is better included in the concept under definition, as in Dr. Rest's draft. The word "impairment" includes the possibilities which could adhere to "change" as the event causing pollution,

and is therefore more closely geared to its content. Finally, the most recent attempt in this field is that represented by the Draft Convention on Deterioration o f the Marine Environment as a result of exploration and exploitation of the seabed and its subsoil in maritime areas under the national jurisdiction of States .22 According to this Draft, deterioration of the marine environment is to be defined as: "any direct or indirect change to the marine environment, including estuaries, induced by man when such change may result in such deleterious effects as harm to biological sources and marine fauna and flora, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of the quality for use of sea water and reduction of amenities". The fact that "impairment" is seen here as part of the definition itself could lead one to assume that deterioration is the broader term. In the French text of Rest's Draft however, impairment is

translated as "d6t6rioration". 23 By "deterioration" the drafters of the Convention evidently mean more sorts of interference with the environment than pollution alone: "D'une part l'4tude, devra couvrir les d6t6riorations de l'environnement autres que celles caus6es par la pollution; ''24. In summarizing, we see that the development of international environmental law has led to the concept of pollution being defined in a broader sense. If the event causing pollution is seen as including the concept of "change" and therefore possibly also the withdrawal of substances of energy, and if human action has a less direct causal link with the event of pollution, the definition differs from the meaning conveyed by the word pollution in common language use. In these cases, the concepts of "environmentally harmful activities", "environmental impairment" and "deterioration" afford more possibilities. Evidently the term used depends upon the framework and the concrete aim of the text within which it occurs.

Divide-up to Clean-up -A Geopolitical Solution to Mediterranean Pollution b y F R A N K G. M O L L E R *

I. The Present Situation Delegates representing 17 of the 18 Mediterranean nations at the intergovernmental meeting held in Monaco, January 1978, failed to reach an agreement to combat land-based pollution, the main source of pollution in the Mediterranean region. Since February 1978 only three out of a series of agreements for the protection of the Mediterranean Sea have come into force. A substantial improvement of environmental quality cannot be expected from these agreements, however, because they deal only with a relative minor aspect of the existing pollution problem. The three adopted international agreements are: (1) A convention for the protection of the Mediterranean Sea against pollution, which is basically *Associate Professor of Economics, Concordia University, Montreal, Canada. Environmental Policy and Law, 5 (1979)

only a declaration of intention and does parties involved. One of such means not establish a pollution control system; would be the International Court of (2) The dumping protocol, a treaty Justice in The Hague, but its legal which prohibits the dumping of certain procedures are too time-consuming for highly poisonous substances ("Black effectively solving transfrontier polluList") and requires a prior special pertion problems. mit for dumping of less dangerous Even if the countries comply rigorsubstances ("Grey List"), but which has ously with these ratified agreements, no control over ships passing through only approximately 20% of all the the Mediterranean Sea that belong to generated amount of pollution would be non-Mediterranean nations; and (3) An abated. Some 80% of the Mediterranean emergency protocol which provides for pollution originates from land-based information exchange, coordination of sources, which include the key induscommunication and assistance in an tries and long-established towns and emergency situation of a massive spill of cities. The northern Mediterranean oil or another harmful material. states are relatively highly developed None of these agreements contains and, therefore, heavily polluting, while mandatory procedures for dealing with presently the sourthern Mediterranean breaches of the convention and the developing countries are not emitting protocols. Until mandatory procedures •substantial amounts of polluting effor determining liability and evaluating fluents. Nevertheless, some of the depollution damages are agreed among veloping countires, in particular Algeria, the states, one has to rely on voluntary are reluctant to sign the land-based forms of arbitration acceptable to the antipollution protocol because they 13