The "Pollution" Concept in International Law
P. van Heijnsbergen*
University of Amsterdam, the Netherlands
EPL, Vol. 5, Iss.1, pp.11-13, 1979
P. van Heijnsbergen*
University of Amsterdam, the Netherlands
EPL, Vol. 5, Iss.1, pp.11-13, 1979
The concept of "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 in the International Law of Pollution (New York; The Free Press, 1974). As the word ''pollution" 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.
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." In international documents pollution is defined both with regard to a certain element and in a general sense. In the Helsinki-rule of 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". The European Water Charter of 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."
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 of a foreign substance or a variation in the proportion of its componen ts is liable to have a harmful effect or to cause nuisance." 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."
The Ottowa-Guidelines of the Stockholm Conference, the Revised Single Negotiating Text on the Law of the Sea and the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution 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 of 1972, and is defined as: "The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless". 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 of 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."
The Event Causing Pollution
The common nucleus of the definition is the event causing pollution. Rest refers to the "causing action." 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 of the IUCN the term pollution is replaced by the "discharge of pollutants." 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."
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 of 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 trans frontier pollution not directly caused by man in a certain state, could mean negligence with regard to the state where the effect manifests itself.
The concept of "alteration" as propounded by Gaja in his observations on "River pollution in international law," is more related to active human interference: "an alteration in the quality of the water which makes it less suitable for any of all the purposes for which it would be suitable in its natural state." With the use of the concept of "change" as the event causing pollution, we reach the bounds of the common meaning of 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 of terms possibly covering a wider field must be considered. This is the more urgent as, in principle, "change" could also mean the withdrawal of substances of energy from the environment.
The Qualifying Effect
The event causing pollution, together with the effects of that event, form the overall picture of pollution, in the sense that the effects qualify the event. Some definitions merely point out that the effect must be "harmful" or "detrimental". 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 of 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 of human activities (such as fishing, industry and recreation) and on the other hand living resources and ecosystems and the immaterial concept of "amenities." This enumeration contains the nucleus of the interests which we wish to protect through international environmental law. One is struck by 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 of these effects, be it related to the sea, is to be found in Principle 7 of the Stockholm declaration: "States shall take all possible steps to prevent pollUtion of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea." The definition used by Gaja is the most comprehensive, summarising as it does the effects as "making less suitable any of all the purposes for which it would be suitable in its natural state." In liability regulations the concept of "pollution damage" is used, referring to effects which, according to the documents concerned, could give rise to damages claims. In the TOVALOP agreement, "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." In the concept of transfrontier pollution, the event causing pollution and the effects of that event are separated by 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 of energy originating in the territory of one state that might cause damage, via natural media (air and water), in the territory of another state."
Now that the concept of "pollution" is so broadly defmed, 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 of 1974, the basic concept is that of "environmentally harmful activities": "environmentally harmful activities shall mean the discharge from the soil or from buildings or installations of solid or liquid waste, gas or any other SUbstance into watercourses, lakes or the sea and the use ofland, 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, vibration, changes in temperature, ionizing radiation, light, etc." The advantage of 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 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. In terms of the aim of this Convention, the impairment must be "substantial" in order to give rise to compensation.
As both of the foregoing definitions contain as an element the concept of pollution, this may be considered to be· 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.
This includes only short extracts from the original article; view in full via the link below.