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 European Community.

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.

1. 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 state.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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