Grasshopper no 1, Winter '93
INTERNATIONAL LAW'S STANDPOINT AGAINST TRANSBORDER POLLUTION
WITHOUT A PASSPORT?
Air and water pollution crosses the Carpatian Euroregion
country borders without much difficulty. Poland and the Ukraine
pollute mainly each other's rivers whereas Poland and Slovakia
pollute mainly each other's air. The anger of the inhabitants,
strengthened by the feeling of helplessness tends to turns against
the other nation. The awareness of international law may redirect
their vent against the real wrongdoers.
International law, like its very name suggests, is
enforceable in a large number of countries and not just to a given
area shared between two or three countries.
Its basic principles include the human right to live
in a healthy and safe environment. This right is guaranteed in
Articles 12 and 71 of the Polish Constitution.
International law is mainly based on treaties, agreements
and pacts. Examples of such co-operation include the CITIES convention
on endangered species protection, the World Nature Charter and
the Montreal Agreement on CFC's reduction to protect ozone layer.
The countries are also expected to act beyond the
guidelines set out by international law through co-operating on
an unofficial basis. It preventative measures against transborder
pollution are to be taken more seriously this type of 'political
etiquette' between nations must pay more integral role.
A country may draw attention to its environment being
harmed by a neighbouring country and expect that country to do
everything it possibly can to limit the harm. In the last resort
it could be dine by turning to unofficial means in harmony with
the spirit of co-operation and mutual understanding.
1941: THE WASHINGTON FARMERS VS. CANADIAN STEELWORKS
These rules were confirmed for the first time by
an international jury in the case concerning the pollution of
the US territory by a Canadian steelworks. The steelworks was
located in an uninhibited region 11 miles north from the boarder
with the USA. The US citizens who lived by the boarder were suffering
from a sulphur pollution. As the result of the trial the verdict
stated that only a state may represent its citizens in case of
international conflicts. It means that those afflicted by the
damage should address their own state to cover the losses. Then
the state may demand the payment for the damage from the other
state. Only then may the other state sue the institution responsible
for destroying the environment.
THE INTERNATIONAL CIVIL LAW
Another rule, recognised by the states, consists
in protecting the citizens. If the parts come from different states,
in which the property protection laws are binding, the international
civil litigation is possible and the parties may sue each other
directly. This law is more and more frequently applied in the
If we want to fight the transborder pollution by
means of international civil law, we must first check if there
is a sufficient ground for such a trial. This means we have to
answer a few questions.
- Does the constitution of a victim state include
an article on the right to live in a clear and healthy environment?
If it does, the citizens have the grounds to start
international litigation. In this case they just represent their
- Are there any agreements between the countries
potentially involved in the trial?
It is not excluded that in case of Poland, Slovakia
and the Ukraine there are agreements , which may prevent mutual
demands concerning the matters we are interested in. If there
are no such agreements, we may proceed to the next question.
- Is it possible to pinpoint the guilty polluter?
It is impossible to sue the factories polluting one
region. For instance it is impossible to start a civil trial concerning
the sulphur pollution coming from Poland to Slovakia because it
is impossible to name a single source of pollution.
Finding a direct relations between the polluter and
the contamination is possible, when pollution by a specific substance
is very large. An example may be the conflict between the Dutch
gardeners and a French potassium mine that contaminated the Rhine
with such amounts of salts that the water could not be used for
agriculture. Although the Rhine contains many toxic substances,
showing the connection between the damage and its source was possible
because of the size and the peculiar kind of the pollution.
If the connection between the pollution and source
is rather obvious, we may proceed to the next question.
- What court is competent to deal with it?
The normal competencies of the court are limited
to the area in which the crime was committed. Here an interesting
question arises. Is water and air pollution a crime or is the
damage to the property a crime? It seems that the later is taken
in to the consideration in the most of the case. Hence, the competent
judge is in the country where the damage is inflicted. However
the lawmakers have not yet concluded their discussions.
- What law should be applied?
This question depends on how it was settled by the
jurisdiction to ever a greater extend than the previous one. In
the Netherlands the farmers vs. the potassium mine case constitutes
the precedent, stating that the parts choose the law together.
It is not the rule in international cases. Sometimes the verdict
may be implied by the laws observed in one of the countries taking
part in the trial. For instance, in Germany, as a rule , the more
lenient law is applied. This is why when a trial includes Germany,
the applicable laws are those with the lowest environmental criteria.
- Will the sentence come into force?
In the Carpatian region the answer is rather negative.
We cannot expect that the states in which even the most rudimentary
environmental laws are hardly applied will be able and willing
to respect a sentence pronounced by a court in a different country.
Nevertheless, the International trials on environment
may be used for political purposes and may raise the ecological
awareness of the citizens.
THE PROS AND CONS OF THE INTERNATIONAL LAW
International law is stable whereas national laws
undergo constant change. International law has proven to be beneficial
in setting cases and developing environmental low. International
cases may spread a awareness of the risks that industries take
in ignoring regulations concerning pollution.
Unfortunately, recourse to international law can
be quite complicated affair and, which is even worse, may have
a negative impact on the people of the accused country. We have
to be aware of the fact that the situation in the Carpatian region
is not quite stable. It bears the historic weigh of the ethnic
conflicts. We must be very careful that the activities to improve
the environment do unite the inhabitants of the region and do
not worse the relations between them.
Ernst Jan Stores
Grasshopper no 1, Winter '93 | Contents