DHARMASHASTRA NATIONAL

LAW UNIVERSITY

Environmental Law
TRANSBOUNDARY POLLUTION

Submitted by~
SHIVANSH PARIHAR
BAL/121/18

Submitted to~
Dr. Veena Roshan Jose
Ms. Areena Parveen Ansari
Associate Professor of Law

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 ACKNOWLEDGEMNT

I would like to thank the university and then our Hon’ble Vice Chancellor Prof. Balraj
Chauhan for giving me this great opportunity to work on a topic like this which was
enlightening and of considerable relevance.

I would also like to thank Dr. Veena Roshan Jose & Ms Areena Parveen Ansari Associate
Professor of Law who helped me the most in completing this project through all the
consultations given by them. The consultations were of utmost help.

Thank you,

Shivansh Parihar

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 TABLE OF CONTENTS

Contents

1. INTRODUCTION..........................................................................................................................................4

2. DEFINITION..................................................................................................................................................7

3. HISTORY........................................................................................................................................................7

4. CONVENTION.............................................................................................................................................10

5. PROTOCOLS TO THE CONVENTION..................................................................................................11

6. RECOMMENDATIONS.............................................................................................................................12

7. CONCLUSION.............................................................................................................................................14

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 INTRODUCTION

The most common interpretation of transboundary pollution is that it is pollution not contained

by a single nation-state, but rather travels across national borders at varying rates. The concept of
the global commons is important to an understanding of transboundary pollution. As both
population and production increase around the globe, the potential for pollution to spill from one
country to another increases. Transboundary pollution can take the form of contaminated water
or the deposition of airborne pollutants across national borders. Transboundary pollution can be
caused by catastrophic events such as the Chernobyl nuclear explosion. It can also be caused by
the creeping of industrial discharge that eventually has a measurable impact on adjacent
countries. It is possible that pollution can cross state lines within a country and would indeed be
referred to as transboundary pollution. This type of case is seldom held up as a serious policy
problem since national controls can be brought to bear on the responsible parties and problems
can be solved within national borders. It is good to understand how interstate environmental
problems might develop and to have knowledge as to those regulatory units of national
government that have jurisdiction.

There is increasing demand for dialogue and support for institutions that can address impacts on
the global commons. The issue of "remedies" for transboundary pollution is usually near the top
of the agenda. Remedies frequently take the form of payments to rectify a wrong, but more often
take the form of fines or other measures to assure compliance with best practices. The problem
with this approach is that charges have to be high enough to offset the cost of controlling
"creeping" pollution that might cross national borders or the cost of monitoring production
processes to prevent predictable disasters. Marine pollution is an excellent example of a
transboundary pollution problem that involves many nation-states and unlimited point sources of
pollution. Marine pollution can be the result of on-shore industrial processes that use the ocean
as a waste disposal site. Ships at sea find the ocean just too convenient as a sewer system, and
surface ocean activities such as oil drilling are a constant source of pollution due to
unintentional discharges. Accidents at sea are well-documented, the most famous in recent years
being the  Exxon Valdez oil spill off of Alaska in Prince William Sound in 1989. Earlier, in
1969 an international conference on marine pollution was held. As a result of this conference two
treaties were developed and signed that would respond to oil pollution on the high seas. These
treaties were not fully ratified until 1975. The Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter and The Convention for the Prevention of Marine
Pollution by Dumping from Ships and Aircraft cite specific pollutants that are considered
extremely detrimental to marine environments. These pollutants are organo halogenic
compounds and mercury, as well as slightly less harmful compounds such as lead, arsenic,
copper, and pesticides. The specificity of those treaties that deal with ocean environments
indicate a rising commitment to the control of transboundary pollution carried by the ocean's
currents and helped to resolve the question of remedies in the Valdez catastrophe.

Acid rain is a clear example of how air currents can carry destructive pollution from one nation-
state to another, and indeed, around the globe. Air as a vector of pollution is particularly
insidious because air patterns, although known, can change abruptly, confounding a country's
attempt to monitor where pollutants come from. Acid deposition has been an international issue
for many years. The residuals from the burning of fossil fuels and the by products from radiation

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combine in the upper atmosphere with water vapour and precipitate down as acid rain. This
precipitation is damaging to lakes and streams as well as to forests and buildings in countries that
may have little sulphur and nitrogen generation of their own. The negative justice of this issue is
that it is the most industrialized nations that are producing these pollutants due to increased
production and too often the pollution rains down on developing countries that have neither the
resources nor the technical expertise to clean up the mess. Only recently, due to international
agreements between nation-states, has there been significant reduction in the deposition of acid
rain. The Clean Air Act Amendments of 1990 in the United States helped to reduce emissions
from coal-burning plants. In Europe, sulphur emissions are being reduced due to an agreement
among eight countries. The European Community in 1992 agreed to implement automobile
emission standards similar to what the United States agreed to in the early 1980s. In 1994 all
large automobiles in Europe were required to reduce emissions with the installation of catalytic
converters. These measures are all aimed at reducing transboundary pollution due to air
emissions.

Probably the most famous case of transboundary river pollution is that of the Rhine River with
its point of incidence in Basel, Switzerland. This was a catastrophe of great proportions. The
source of pollution was an explosion at a chemical plant. In the process of putting out the fire,
great volumes of water were used. The water mixed with the chemicals at the plant (mercury,
insecticides, fungicides, herbicides and other agricultural chemicals), creating a highly toxic
discharge. This lethal mixture washed into the Rhine River and coursed its way to the Baltic Sea,
affecting every country along the way. Citizens of six sovereign nations were affected and
damage was extensive. There was further consternation when compensation for damage was
found to be difficult to obtain. Although the chemical company volunteered to pay some
compensation it was not enough. It was possible that each affected nation-state could try the case
in their own national court system, but how would collection for damages take place? "In
transboundary cases, if there is no treaty or convention in force, by what combination of
other international law principles can the rules of liability and remedy be determined?" It
becomes problematic to institute legal action against another country if there is no precedent.
Since there is no history of litigation between nation-states in cases of environmental damage
there is no precedent to determine outcome. Historically, legal disputes have been resolved
(albeit, extremely slowly) through negotiations and treaties. There is no "polluter pays" statute
in international law doctrine.

The authority that can be brought to bear on issues of transboundary pollution is weak and
confusing. The only mechanism that is currently available to compensate injury is private
litigation between parties and that is difficult due to a lack of agreements to enforce civil
judgments. If, in fact, the polluter is the national government, as in the case of the Chernobyl
disaster, it may be nearly impossible to gain compensation for damages.

Transboundary pollution takes many forms and can be perpetrated by both private industry and
government activities. It is difficult if not impossible to litigate on an international scale. It is in
fact sometimes difficult to determine who the polluter is when the pollution is "creeping" and not
a catastrophic incidence. Airborne transboundary pollution is extremely difficult to track due to
the pervasive nature of the practices that produce it. Global solutions to transboundary pollution

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can only be successful if all nations agree to implement controls to reduce known pollutants and
to take responsibility for accidents that damage the environmental quality of other nations1.

1
Buck, S. J. Understanding Environmental Administration and Law. Washington, DC: Island Press, 1996.

Plater, Z. J. B., R. H. Abrams, and W. Goldfarb. Environmental Law and Policy: Nature, Law, and Society. St. Paul:
West Publishing Co., 1992.

World Wildlife Fund. "Choosing a Sustainable Future: The Report of the National Commission on the
Environment." Washington, DC: Island Press, 1993.

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 DEFINITION

What is Transboundary Pollution?

Transboundary pollution is the pollution that originates in one country but is able to cause
damage in another country’s environment, by crossing borders through pathways like water or
air. Pollution can be transported across hundreds and even thousands of kilometres. The
incredible distances that pollution can spread means that it is not contained within the boundaries
of any single nation. This is why it is called ‘Transboundary Pollution’. One of the problems
with transboundary pollution is that can carry pollution away from a heavy emitter and deposit it
onto a nation whose emissions are relatively low. Another problem with transboundary pollution
relates to the quote above. Due to the fact that ‘All things connect’, the heavy pollution that is
evident in the developed world also becomes evident in remote areas. For an example of how
transboundary pollution becomes visible in a remote area like the Arctic2.

HISTORY
Although multilateral economic activities have been governed, since World War II, by the
application of consensual liberal ideas about free trade, efforts to control the impact of economic
activity on transboundary and environmental pollution has been based on non-market and
regulatory principles. Since 1972 an ecological epistemic community, articulating a new
ecological management doctrine, has institutionalized its ideas in state policies and practices, in
the programmatic activities of international institutions, and in international regimes. As a
consequence of the international institutionalization of its ideas, states were caused to undertake
more comprehensive styles of environmental management for transboundary and global
environmental threats, leading to selective improvements in environmental quality (Haas 2001).
A new environmental management doctrine based on ecological principles emerged in the 1960s.
The ideas were developed outside the scope of most state interests and are generally regarded as
being relatively uncompromised by political and institutional influence, as ecology was a
relatively cheap research enterprise and its subject of study was far removed from most state
interests. Members of the ecological epistemic community subscribed to holistic ecological
beliefs about the need for policy coordination subject to ecosystemic laws (Haas 1990). Their
ideas about ecological management were based on a systems perspective of environmental and
social systems. Ecological management proposals were based on setting comprehensive
environmental standards based on conservative estimates of the ability of ecosystems to sustain

2
www.safewater.org, Inuit Tapiriit Kanatami

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stress, subject to their technical understanding of the behaviour of particular ecosystems. They
promoted international environmental regimes that are grounded on policies which offered
coherent plans for the management of entire ecosystems, sensitive to interactions between
environmental media (such as air and water), sources of pollution, and contending uses of the
common property resource, rather than being limited to more traditional policies for managing
discrete activities or physical resource spaces within fairly short term time horizons. They
proposed treaties in which bans and emission limits were set for multiple contaminants, with
environmental standards for each contaminant set according to scientific understanding about
its environmental impact and its interactive effects with other contaminants.
There were few ideational competitors. Resource management bodies had traditionally been
staffed by neoclassical economists and resource managers, who had been discredited by broadly
publicized environmental disasters and the energy crisis of the 1970s as well as the limits to
growth debate, which they had been unable to predict, and attendant popular fears of widespread
resource depletion.
Following the politicization of international environmental issues in the late 1960s galvanized by
widely publicized environmental disasters occurring in global commons, the United Nations
convened the United Nations Conference on the Human Environment (UNCHE) in 1972. As a
consequence of these new domestic demands, and in order to prepare national papers for
UNCHE, governments created new environmental agencies. Most state officials were unfamiliar
with environmental threats and were unable to rank order environmental threats, amounts of
national emissions, what would constitute safe or dangerous concentrations of possible
contaminants, and what were appropriate policies to reduce emissions. Many of these national
agencies recruited epistemic community members to serve as officials or as consultants.
International organizations were created as well. The United Nations Environment Program
(UNEP) was established in 1973 and was staffed principally by young epistemic community
members eager to put their professional knowledge to work. The UN Economic Commission for
Europe (UNECE) played a strong role in managing European air pollution. The UNECE's
environmental unit was led by a former UNEP official who carried the ecological management
ideas from UNEP to UNECE. After 1987 the World Bank also became active in international
environmental matters. Part of the environmental reforms introduced at the World Bank was
the recruitment of ecological epistemic community members and their assignment to key posts to
evaluate the environmental consequences of development projects.
Diffusion occurred principally through efforts of these major environmental IOs and through
environmental regimes. The IOs encouraged other IOs to internalize environmental concerns into
their missions through joint projects, and encouraged governments to pursue more

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comprehensive environmental policies through public education campaigns, publicizing
environmental monitoring findings, resource transfers, and demonstration effects.
International regimes have been even more important for the diffusion of ecological management
techniques. This spread is due to the growing influence of ecological epistemic communities and
the growing confidence and influence of strong international institutions informed with their
ecological beliefs.
Ecological epistemic communities, often working with UNEP, helped draft international
environmental regimes governing marine pollution, acid rain,
stratospheric ozone protection, wetlands protection, protecting migratory species, polar bears
protection, and the preservation of Antarctica. An increasing proportion of them are now based
on the comprehensive ecological approach promoted by the ecological epistemic community. In
1973, three of 11 international environmental regimes were based on ecological management
styles. In 1985, seven of 22 were comprehensive. In 1995, 10 of 25 were comprehensive
(Haas 2001). The application of ecological management ideas to environmental regimes
spanning a number of geographic areas and functional activities means that most states have
accepted ecological obligations for governing a wide variety of human activities.
Ecological practices based on ecological management ideas have become locked in through a
variety of mechanisms. Following ratification of international regimes, governments enforce
these obligations domestically. Ecological practices get institutionalized domestically through
legal precedents, bureaucratic standard operating procedures, and policy enforcement. In many
countries they have acquired domestic constituencies—composed of lawyers and civil engineers
who subcontract services, firms selling pollution control technologies, and environmental NGOs
—that contribute political pressure for continued state enforcement of policies grounded on these
ideas.
Exogenous forces have also reinforced these state commitments. A Gallup poll conducted in
1992 demonstrated new worldwide concern about the need to respond to global and
transboundary environmental threats (Dunlap et al. 1992). In democratic societies public
demands for environmental protection reinforce the influence of the epistemic community's
ideas. International markets for pollution control technology also came into existence in the
1990s.

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 CONVENTION

The 1979 Geneva Convention on Long-range Transboundary Air Pollution

The Convention on Long-range Transboundary Air Pollution is one of the central means for
protecting our environment. It has, over the years, served as a bridge between different political
systems and as a factor of stability in years of political change. It has substantially contributed to
the development of international environmental law and has created the essential framework for
controlling and reducing the damage to human health and the environment caused by
transboundary air pollution. It is a successful example of what can be achieved through
intergovernmental cooperation.

The history of the Convention can be traced back to the 1960s, when scientists demonstrated the
interrelationship between sulphur emissions in continental Europe and the acidification of
Scandinavian lakes. The 1972 United Nations Conference on the Human Environment in
Stockholm signalled the start for active international cooperation to combat acidification.
Between 1972 and 1977 several studies confirmed the hypothesis that air pollutants could travel
several thousands of kilometres before deposition and damage occurred. This also implied that
cooperation at the international level was necessary to solve problems such as acidification.

In response to these acute problems, a High-level Meeting within the Framework of the ECE on
the Protection of the Environment was held at ministerial level in November 1979 in Geneva. It
resulted in the signature of the Convention on Long-range Transboundary Air Pollution by 34
Governments and the European Community (EC). The Convention was the first international
legally binding instrument to deal with problems of air pollution on a broad regional basis.
Besides laying down the general principles of international cooperation for air pollution
abatement, the Convention sets up an institutional framework bringing together research and
policy.

The Convention on Long-range Transboundary Air Pollution entered into force in 1983. It has
been extended by eight specific protocols. The aim of the Convention is that Parties shall
endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including
long-range transboundary air pollution. Parties develop policies and strategies to combat the
discharge of air pollutants through exchanges of information, consultation, research and
monitoring.

The Parties meet annually at sessions of the Executive Body to review ongoing work and plan
future activities including a work plan for the coming year. The three main subsidiary bodies -
the Working Group on Effects, the Steering Body to EMEP and the Working Group on
Strategies and Review - as well as the Convention's Implementation Committee, report to the
Executive Body each year.

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Currently, the Convention's priority activities include review and possible revision of its most
recent protocols, implementation of the Convention and its protocols across the entire UNECE
region (with special focus on Eastern Europe, the Caucasus and Central Asia and South-East
Europe) and sharing its knowledge and information with other regions of the world.

PROTOCOLS TO THE CONVENTION

The Convention has been extended by eight protocols:

1. The 1999 Protocol to Abate Acidification, Eutrophication and Ground-level Ozone; 26

Parties. Entered into force on 17 May 2005. (Guidance documents to Protocol adopted by
decision 1999/1, Revised guidance document on ammonia).

2. The 1998 Protocol on Persistent Organic Pollutants (POPs); 30 Parties. Entered into force
on 23 October 2003.

3. The 1998 Protocol on Heavy Metals; 30 Parties. Entered into force on 29 December

2003.

4. The 1994 Protocol on Further Reduction of Sulphur Emissions; 29 Parties. Entered into

force 5 August 1998.

5. The 1991 Protocol concerning the Control of Emissions of Volatile Organic Compounds

or their Transboundary Fluxes; 24 Parties. Entered into force 29 September 1997.

6. The 1988 Protocol concerning the Control of Nitrogen Oxides or their Transboundary

Fluxes; 34 Parties. Entered into force 14 February 1991.

7. The 1985 Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes

by at least 30 per cent; 25 Parties. Entered into force 2 September 1987.

8. The 1984 Protocol on Long-term Financing of the Cooperative Programme for

Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe
(EMEP); 43 Parties. Entered into force 28 January 1988.

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 RECOMMENDATIONS

 Destroying pollutants before they enter the atmosphere

Factory operators can also employ abatement mechanisms that help destroy VOCs, HAPs, and
other pollutants before they enter the environment. Different abatement techniques are efficient
for specific types of pollutants, so you need to evaluate your operation to find the ideal
technique. Four of the most commonly used abatement techniques include

 Catalytic Oxidizer

Catalytic oxidizers use a combination of chemical catalysts and high temperatures to break down
pollutants into harmless compounds.

 Oxidizers with Rotary Concentrators

Rotary concentrators combined with oxidizers are ideal for chemical processing, surface coating,
and wood finishing facilities, just to name a few.

 Less use of fertilizersu

Take great care not to overuse pesticides and fertilizers. This will prevent runoffs of the material
into nearby water sources.

 Denitrification

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Denitrification is an ecological approach that can be used to prevent the leaching of nitrates in
soil, this in turn stops any ground water from being contaminated with nutrients.

 Septic tanks treat sewage 

Septic tanks & treat sewage at the place where it is located, rather than transporting the waste
through a treatment plant or sewage system. Septic tanks are usually used to treat sewage from
an individual building.

 Ozone wastewater treatment 

Ozone wastewater treatment is a method that is increasing in popularity. An ozone generator is

used to break down pollutants in the water source.
The generators convert oxygen into ozone by using ultraviolet radiation or by an electric
discharge field. Oxidises substances such as iron and Sulphur so that they can be filtered out of
the solution.

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 CONCLUSION

Transboundary pollution problems have become increasingly important issues on the agenda of
politicians, economists, and natural scientists. Transboundary pollution is defined legally as
pollution that originates in one country but can cause damage in another country’s environment,
by crossing borders through pathways like water or air. The problems of transboundary pollution
include issues like the acidification of soils and lakes through acid rain, transboundary air
pollution (known variably as smog, haze, or smoke), and downstream river or ocean pollution
due to upstream activities. The traditional Westphalian approach that forms the cornerstone of
the modern international system is based on the notion of geopolitical units, with borders
indicating the limits of state jurisdiction. However, a distinctive characteristic of transboundary
pollution problems is that pollution does not remain within political boundaries. Thus, this fluid
nature of the environment has posed a challenge for environmental governance within this
system. Transboundary pollution is an international relations problem. Therefore, steps should be
taken in order to curb this pollution otherwise it will catastrophic for the world.

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