The Applicability of the Doctrine on Prohibition of Transboundary Environmental Harm to the 2017 Portuguese Wildfires

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The Applicability of the Doctrine on Prohibition of

Transboundary Environmental Harm to the 2017

Portuguese Wildfires

By Jorge Lobo de Miranda Roza de Oliveira 12328928

MASTER’S IN PUBLIC INTERNATIONAL LAW Supervisor: Dr. Catherine Brölmann

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Abstract

States are under an obligation not to cause harm to the environment of other States, this cornerstone of international environmental law also includes areas beyond national jurisdiction, like the atmosphere. This principle commonly referred to as the no-harm rule is considered to be a general principle of international law.

Case law allows the attribution of responsibility for air pollution caused by industries; therefore, an argument could be made for the attribution of responsibility for air pollution caused by wildfires.

Wildfires are slowly becoming our planet’s greatest challenge, in terms of, climate change, the environment and economic development. 2017 was one of the worst years, in recent history, if we focus on wildfire proliferation and strength.

The focus of this study is on the State of Portugal, and how it failed its due diligence obligation to prevent transboundary damage when it comes to air pollution caused by wildfires. According to the Greenhouse Gas Reference Network, “a very large, very hot fire destroying 500,000 acres could emit the same total amount of CO2, as six large coal-fired power plants in one year.

Establishing that emissions from wildfires are equally as harmful as emissions from industries. A focus will be made on general international environmental law, in terms of the precautionary principle, the due diligence obligation and the no-harm rule.

Having a grasp on general international environmental law, a study is done, on specific multilateral treaties aimed at protecting the atmosphere. Having established all these points, a conclusion will be made that Portugal failed its due diligence obligation, to not cause transboundary harm in the 2017 wildfires. Both general international environmental law and treaty law, will support this claim.

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Table of Contents

Introduction ... 4

Methodology and Structure ... 7

Chapter 1: The Notion of Transboundary Harm and its Development ... 8

1. Transboundary Harm and its Relation to the No-Harm Rule ... 9

1.1. Evolution of the No-Harm Rule: State Sovereignty vs. Territorial Integrity ... 10

1.2. Territorial Integrity and the Responsibility not to Cause Transboundary Damage 10 1.3. Cases that developed the Notion of Transboundary Damage (No-Harm Rule) .. 11

A. 1941 Trail Smelter Case (United States, Canada) ... 12

B. 1949 Corfu Channel Case (United Kingdom v. Albania) ... 13

C. 1957 Lac Lanoux Arbitration (France v. Spain) ... 14

1.4. Evolution of the No-Harm Rule: Soft Law and Multilateral Treaties ... 15

A. The 1972 Stockholm Declaration ... 16

B. The 1985 Vienna Convention for the Protection of the Ozone Layer ... 17

C. The 1992 Rio Declaration ... 17

D. The United Nations Framework Convention on Climate Change (UNFCCC) ... 19

E. 1983 Convention on Long-Range Transboundary Air Pollution ... 19

Summary ... 20

2. Relation Between Transboundary Harm and Precautionary Principle ... 21

2.1. Legal Status of the Precautionary Principle ... 22

3. The Obligation of Due Diligence Related to the Prohibition of Transboundary Damage ... 24

Chapter 2: The transboundary nature of air pollution ... 27

1. The atmosphere as a protected system ... 28

2. International Environmental Law Non-Compliance Regimes ... 29

Having established, in Chapter 1, some of the multilateral agreements that serve to prevent transboundary air pollution, a study will be made on the effectiveness of non-compliance regimes in these agreements. If a State fails to prevent transboundary air pollution, what are the legal consequences, if any? ... 29

A. The Ozone Regime ... 29

B. The Air Pollution Regime ... 30

C. The Climate Change Regime ... 31

3. A comparative analysis between emissions from industry, and emissions from wildfires ... 32

4. The Transboundary Haze pollution in Southeast Asia ... 33

Chapter 3- The 2017 Wildfires: How Portugal failed its Due Diligence Obligation to Prevent Transboundary Harm ... 34

Conclusion ... 37

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Introduction

States are obliged to not cause harm to the environment of other States, or areas beyond national jurisdiction. This cornerstone of international environmental law had various stages of development. The essence of this obligation is commonly referred to as the “No-Harm Rule”, in other words, the prohibition of causing transboundary environmental harm. The no-harm rule has its origins from the sic utere tuo ut alienum non laedas principle.1

The focus of this study will be on the prohibition of transboundary harm and how the State of Portugal has been failing this obligation, due to its lack of due diligence in the prevention of wildfires.

Wildfires are slowly becoming our planet’s greatest challenge, in terms of climate change, the environment and economic development. 2017 was one of the worst years, in recent history, if we focus on wildfire proliferation and strength. Large-scale wildfires were experienced around the world. California,2_Chile,3_Canada4_{and Australia,}5_{along with}

Portugal,6_{suffered catastrophic fires that caused more than two-hundred deaths, hundreds of}

injured parties, including unquantifiable loss, both material and environmental. It is possible that these wildfires should no longer be looked as a simple domestic problem, but maybe as a true social emergency.

As stated, the focus of this study will be on Portugal and the mechanisms the State has at its disposal to prevent and fight wildfires, and the how it failed its due diligence obligation to prevent these fires from occurring, if we consider that wildfires are an annual occurrence in Portugal.7

1_{Brunnée Jutta, ‘Sic Utere Tuo Ut Alienum Non Laedas’, in Max Planck Encyclopedia of Public International}

Law (Oxford University Press, 2010), https://doi.org/10.1093/law:epil/9780199231690/e1607.

2_{Edition-m.cnn.com. (2019). [online] Available at:}

https://edition-m.cnn.com/2017/12/26/us/2017-california-wildfire-records-trnd/index.html [Accessed 23 May 2019].

https://edition-m.cnn.com/2017/01/27/americas/chile-wildfires/index.html [Accessed 23 May 2019].

4_{CKNW. (2019). 2017 officially B.C.’s worst ever wildfire season. [online] Available at:}

https://globalnews.ca/news/3675434/2017-officially-b-c-s-worst-ever-wildfire-season/ [Accessed 23 May 2019].

5_{Wahlquist, C. (2019). Bushfire conditions in Australia's east at ‘near record’ levels following dry winter.}

[online] the Guardian. Available at: https://www.theguardian.com/australia-news/2017/aug/31/bushfire-conditions-at-near-record-levels-following-dry-winter [Accessed 23 May 2019].

https://edition-m.cnn.com/2017/06/18/europe/portugal-fire/index.html [Accessed 23 May 2019].

7_{Anon, (2019). GRANDES INCÊNDIOS FLORESTAIS NA DÉCADA DE 60 DO SÉCULO XX, EM}

PORTUGAL CONTINENTAL. [online] Available at:

https://www.researchgate.net/publication/269464687_GRANDES_INCENDIOS_FLORESTAIS_NA_DECAD A_DE_60_DO_SECULO_XX_EM_PORTUGAL_CONTINENTAL [Accessed 3 Jul. 2019].

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In 2017 the largest loss of human life due to fires, occurred in Portuguese territory.8_A

total of 111.120 acres were destroyed.9_{This tragedy takes on a different dimension, if we}

consider that Portugal has ineffective mechanisms to prevent wildfires, relying on fighting fires, rather than precautionary measures used to prevent the occurrence of wildfires in the first place. In Chapter 1, a study is made on the relationship between precautionary measures and the prohibition of transboundary harm.

The “Instituto da Conservação da Natureza e das Florestas” (ICNF), a Portuguese institution for nature conservation and forests, released a study on the 2017 wildfires. The ICNF qualifies “large wildfires” any time they reach an area that is superior to 100 hectares; Over 214 fires that would fall under this category were registered in the year 2017. A total of 93% of these fires were located in forest areas, over 412.781 hectares were destroyed.10

The European Environmental Agency in 2016, proclaimed that, based on climate change projections, the increasing levels of temperatures, along with longer drought periods, (experienced more severally in the southern part of Europe) will result in an increase on the level of severity and length, of future wildfires.11

As the Centre for Climate Adaption has established, there is a “new generation of wildfires characterized by extreme behaviour”. New strategies should be established for a better prevention and preparedness to face large fires.12_{Wildfires are slowly becoming a}

European problem.13

Attributing responsibility for the lack of due diligence in preventing these large-scale fires, might be the strong deterrent necessary for States to create effective precautionary mechanisms to prevent more fires from occurring in their jurisdiction.

8_{Phippen, J. (2019). A Deadly Forest Fire in Portugal. [online] The Atlantic. Available at:}

https://www.theatlantic.com/news/archive/2017/06/forest-fire-portugal/530745/ [Accessed 10 Jun. 2019].

9_{Notícias ao Minuto. (2019). Incêndio em Pedrógão Grande e Góis queimou quase 45 mil hectares. [online]}

Available at: https://www.noticiasaominuto.com/pais/818299/incendio-em-pedrogao-grande-e-gois-queimou-quase-45-mil-hectares [Accessed 10 Jun. 2019].

10_{Departamento de Gestão de Áreas Públicas e de Protecção Florestal. (2017). Relatório Provisório de}

Incêndios Florestais. [online] Available at: http://www2.icnf.pt/portal/florestas/dfci/Resource/doc/rel/2017/10-rel-prov-1jan-31out-2017.pdf [Accessed 23 May 2019]

11_{European Environment Agency. (2019). Forest fires. [online] Available at:}

https://www.eea.europa.eu/data-and-maps/indicators/forest-fire-danger-2/assessment [Accessed 23 May 2019].

12_{Climatechangepost.com. (2019). A new generation of wildfires characterized by extreme behaviour. [online]}

Available at: https://www.climatechangepost.com/news/2018/12/18/new-generation-wildfires-characterized-extreme-beh/ [Accessed 29 May 2019].

13_{Efi.int. (2019). Why and how forest fires are becoming a European problem? | European Forest Institute.}

[online] Available at: https://www.efi.int/news/why-and-how-forest-fires-are-becoming-european-problem-2018-08-09 [Accessed 29 May 2019].

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A study by the journal Nature declared:

“a striking implication of very large wildfires is that a severe fire season lasting only one or two months can release as much carbon as the annual emissions from the entire transportation or energy sector of an individual state”.14_{(Font altered for emphasis)}

According to the Greenhouse Gas Reference Network (Hereinafter ‘GGRN’), “a very large, very hot fire destroying 500,000 acres could emit the same total amount of CO2, as six large coal-fired power plants in one year”.15_{In 2017, the total area of Portuguese territory that}

burned was close to 100,000 acres.16

The quote by GGRN, along with the quote by Nature, are the crux of this study, if a severe fire season can emit as much as the yearly emissions of an entire sector, then an argument can be made for the attribution of responsibility for emissions caused by wildfires.

Case-law allows State attribution for factory emissions, 1941 Trail Smelter Arbitration (United States v. Canada). A study will be made to see whether attribution can be done, when it comes to atmospheric emissions caused by wildfires.

Article 8 of the European Convention on Human Rights, could protect European citizens from the damage caused by wildfires, considering this article guarantees a right to a clean and safe environment to live in dignity:

Article 8– Right to respect for private and family life

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a

democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The focus of this study will be more “eco-centric”, than the common “anthropocentric” perspective. I will evaluate how States can be held responsible for damage to the environment as an object in itself (in this case the atmosphere), and not relate it to Human Rights.

14_{Science, L. and Earth, P. (2019). Wildfires Release as Much CO2 as Cars. [online] Live Science. Available}

at: https://www.livescience.com/1981-wildfires-release-cars.html [Accessed 10 Jun. 2019].

15_{Inside Climate News. (2019). How Wildfires Can Affect Climate Change (and Vice Versa). [online] Available}

at: https://insideclimatenews.org/news/23082018/extreme-wildfires-climate-change-global-warming-air-pollution-fire-management-black-carbon-co2 [Accessed 10 Jun. 2019].

16_:_{Www2.icnf.pt. (2019). 2017 — ICNF. [online] Available at:}

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In terms of case law, the study will demonstrate how States can be held responsible for the transboundary pollution of factory emissions, like the Trail Smelter arbitration, that will be studied more profoundly ahead.

An important distinction also needs to be made, between primary obligations and secondary obligations, the primary, the prohibition of transboundary harm, is then regulated by the secondary obligations that determine the rules of responsibility for the breach of the primary obligation.

This study will show how emissions due to wildfires should also be considered a cause for transboundary environmental damage. Relating to the protection of the atmosphere, I will demonstrate how Portugal failed its primary obligation, on the prohibition of transboundary harm.

Methodology and Structure

From a methodological perspective this thesis will follow the classical legal method, answering questions of law from an internal perspective. This doctrinal method will be based on the comparing of different international environmental agreements and how they have an effect on the maintenance and enforcement of international protection. Environmental law is a developing field, where protective mechanisms don’t effectively exist, when it comes to compliance and enforcement. It is necessary to have a grasp of current environmental law, in order to know how to protect and develop future law.

In terms of structure, the study starts by defining transboundary harm in Chapter 1, and how it evolved to become a general principle of international law. Relating the notions of State sovereignty and territorial integrity to the prohibition of transboundary damage. Connecting the precautionary principle to the notion of due diligence. In Chapter 2, we find the notion of atmosphere as a protected system, and a correlation between atmospheric emissions from industries to those of wildfires. Finally, in Chapter 3, an analysis of the 2017 Portuguese wildfires determines that Portugal failed its due diligence obligation, under soft law, treaty law and costumary international law, to prevent wildfires from occurring on its territory, and therefore failing to prevent damaging atmospheric emissions.

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Chapter 1: The Notion of Transboundary Harm and its Development

Environmental regulation was initially organized around rules governing the exploitation of certain resources, transboundary damage and the use of shared watercourses.17

As we can see, environmental law had its development from a purely anthropocentric perspective. Human development was at the centre of protection. Over the following decades the principle of permanent sovereignty evolved to the “no-harm principle” which later became the “prevention principle”.

After 1945, as a result of the Second World War, there was a ‘wave’ of decolonization, where newly independent States wanted to specifically define their sovereignty over their territory and natural resources, in order to achieve a successful level of political and financial independence.18_{As was mentioned in the UN General Assembly on 14 December 1962 of}

Resolution 1803 (VXII) on Permanent Sovereignty over Natural Resources (Hereinafter ‘PSNR’):

“the Right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of State concerned”

An important case that helped redefine this notion of PSNR, which will be studied more profoundly ahead, is the Trail Smelter arbitration. This case focused on the emissions from a smelter located in one State (Canada) affecting and damaging crops in another State (United States of America). The “smelter arbitration” had a huge effect on the development of international environmental law. The decision focused on the effects of transboundary environmental harm and helped develop custom, ‘limiting’ the notion of State sovereignty.

Due to international development, and population growth, issues of transboundary environmental damage are increasing. Therefore, States recognize the need for finding effective, global solutions to environmental concerns. This requires rules for protection of natural resources and the environment, as a common resource for all States.

17_{Dupuy, P. and Viñuales, J. (2018). International environmental law. Cambridge: Cambridge University Press.}

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1. Transboundary Harm and its Relation to the No-Harm Rule

When discussing transboundary harm, one needs to take in to account, not all negative effects to the environment fall within the obligation to not cause transboundary harm. Therefore, there are a set of conditions for environmental harm to be qualified as transboundary.19

The first condition states that the harm must result from human activity, i.e. the harm must be a physical consequence of the activity.20_{Floods, earthquakes, hurricanes etc. would}

not fall under the provision of transboundary harm. Due to the increase of human activity, an uncertainty related to the causal factors manifests itself when determining environmental harm, as a result, States are required to take a precautionary approach. These precautionary measures are used when the causation of harm cannot be directly linked to human activity. This shall be studied more profoundly ahead.

Second condition, the physical effect of the harm must cross borders.21_{It is this}

boundary-crossing, that initiates the application of transboundary harm, and as a result the responsibility of States. While originally this transboundary harm, could only be applied to neighboring countries. Nowadays due to scientific innovations, and more understanding, ‘transboundary’ can encompass areas beyond national jurisdiction. In other words, common heritage of mankind; This encompasses, among others, the high-seas, and for the purposes of our study, the atmosphere.

A final condition is that the harm caused, must have a level of severity, that would call for legal action.22_{This follows regular domestic law, where one can only invoke responsibility}

of a neighbour, when they interfere unreasonably with private property. There is a ‘significant substantial harm’ threshold. to determine ‘significant harm’ will be challenging since severity changes with specific circumstances. For one to determine the harm as ‘significant’ one would need to look at the situation and specific context. The threshold is thus measured by the “factual and objective standards”.

19_{Schachter, Oscar. "The Emergence of International Environmental Law." Journal of International Affairs 44,}

no. 2 (1991): 463. http://www.jstor.org/stable/24357318.

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1.1. Evolution of the No-Harm Rule: State Sovereignty vs. Territorial Integrity

When discussing transboundary harm, one cannot forget the principles of ‘State Sovereignty’ and ‘Territorial Integrity’. These notions are impossible to separate when discussing the transboundary nature of air pollution.

State sovereignty is a prerequisite for the system of international law.23_{As the Charter}

of the United Nations, in article 2(1) declares, “The organization is based on the principle of the sovereign equality of all its members”.

Alongside State sovereignty, we find the notion of ‘Territorial Integrity’. States have prima facie exclusive jurisdiction over their territory and the permanent population living there.24_{As a result, traditionally, in international law, States are free to exploit their natural}

resources within the geographical area that constitutes their territory, passing laws and regulations regarding the environment within their jurisdiction, this notion can be more specifically defined as the ‘Principle of Permanent sovereignty over Natural Resources’ (hereinafter ‘PSNR’).

When establishing ‘State sovereignty’ and territorial integrity’ a problem arises. If States have absolute power over their territory, can they commit any act they want? This issue is the crux of all environmental problems with a transboundary nature. There is a positive obligation to protect ones environment, but ecosystems do not respect artificial boundaries.

1.2. Territorial Integrity and the Responsibility not to Cause Transboundary Damage

Despite the absolute nature of State sovereignty and territorial integrity, there are limitations to how States may utilize their natural resources. Pollution from industrial activities in connection with the need to share natural resources results in the limitation of these two principles.

The limitation of State sovereignty and the right to freely dispose of one’s own natural resources can be done by treaties (which will be discussed ahead) limiting the right of ‘PSNR’, forcing member States to act in accordance with standards that are set, and requiring

23_{Besson Samantha, ‘Sovereignty’, in Max Planck Encyclopedia of Public International Law (Oxford}

University Press, 2011), https://doi.org/10.1093/law:epil/9780199231690/e1472.

24_{Blay Samuel K N, ‘Territorial Integrity and Political Independence’, in Max Planck Encyclopedia of Public}

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cooperation and consultation between States in environmental matters, the most common mechanisms to resolve environmental disputes.25

Both the concepts of territorial sovereignty and territorial integrity are restricted and cannot be considered absolute. Territorial integrity can be found in the duty “not to intervene in an area of exclusive jurisdiction of other States. The link between territorial integrity and State sovereignty can be found in the island of Palmas arbitration:

“Territorial sovereignty, as has already been said, involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory”.26

In this case we see the balance between a State’s own interests and their exclusive jurisdiction on the territory, with the interest of third States and the protection of their territorial integrity.

While early case law focused on transboundary harm, and the negative effect it has on a State’s geographical neighbor. Which was the situation with the Trail Smelter arbitration, where the court considered transboundary harm as only applicable when harming other territories. Recent case law has evolved to include harm to areas beyond national control, like was the case with the Advisory Opinion on the Threat of Use of Nuclear Weapons.

In summary, the no harm rule stipulates the sovereignty, States have over their natural resources, while imposing a caveat: State sovereignty cannot affect the territorial integrity of other States. This was later codified in to Principle 21 of the Stockholm Convention and Principle 2 of the Rio Declaration, these will be explained in more detail further ahead.

1.3. Cases that developed the Notion of Transboundary Damage (No-Harm Rule)

When discussing the evolution of transboundary damage, one has to look at case law, and how it helped shape the rule as we know it today. The Trail Smelter had its conclusion based on the principles of State sovereignty and territorial integrity. The Corfu Channel case focused on one of the most fundamental rules of international environmental law, the notion of

25_{Alexandre S. Temoshenko, ‘The Problem of Preventing Damage to the Environment in National and}

International Law: Impact Assessment and International Consultations’, Pace Environmental Law Review 5 (1987), https://heinonline.org/HOL/Page?handle=hein.journals/penv5&id=481&div=27&collection=journals.

26_{‘REPORTS OF INTERNATIONAL ARBITRAL AWARDS RECUEIL DES SENTENCES ARBITRALES}

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‘Due Diligence’. The Lac Lanoux arbitration reaffirmed the Trail Smelter principle in another element of environmental law; watercourse law. The cases will be studied more thoroughly ahead.

A. 1941 Trail Smelter Case (United States, Canada)

This case was the first time the sic uetere principle was used as a fundamental rule of modern international law. It was determined that Canada could not use its national territory in such a way that would harm its neighbour the United States of America.27_{Here we see how}

transboundary damage used to only be invoked when connected States were affected.

The case focused on the atmospheric emissions from a privately-owned smelter plant operating on Canadian territory, and how this plant was causing damage to the agricultural interests of the neighboring State.

Due to the dispute at hand, both governments concluded a special agreement that would submit their dispute to arbitration.28_{The questions posed to the tribunal were, if Canada was}

responsible for the damage that the Sulphur Dioxide created on USA territory? If so, was Canada required to prevent future harm to the US?29

The tribunal concluded that Canada was responsible for damage and granted compensation to the USA. The tribunal also imposed the creation of a regime that would control emissions, in order to prevent future transboundary air pollution from the smelter. As a reason for their decision the tribunal stated:

“under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”.30

Trail Smelter Case (United States, Canada)’, 1938, https://www.ilsa.org/Jessup/Jessup17/Batch 2/Trail smelter case (United States, Canada).pdf.

28_{"Canada-United States: Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail,}

B. C." The American Journal of International Law 30, no. 4 (1936): 163-67. doi:10.2307/2213437.

Trail Smelter Case (United States, Canada)’, 1938, p. 1908 https://www.ilsa.org/Jessup/Jessup17/Batch 2/Trail smelter case (United States, Canada).pdf.

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The Tribunal in order to reach its decision, used both international and domestic law, even though this was not necessary under the agreement. The fact that both approaches would reach the same conclusion,31_{proved that the no-harm rule, should be interpreted as a general}

rule of international law, since both States recognized these principles. This conclusion is defended by Article 38(1)(c)of the Statute of the International Court (Hereinafter ‘ICJ Statute’):

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (…) c) the general principles of law recognized by civilized nations.

Case law, as we can see with the landmark smelter decision allows for the attribution of responsibility to a State that pollutes the atmosphere of another. In the cases of wildfires, we see there is a legal standing for it. It seems that a State could be held responsible for the lack of prevention mechanisms? The subsequent Corfu Channel case seems to allow omissions as a basis for the attribution of responsibility.

B. 1949 Corfu Channel Case (United Kingdom v. Albania)

This case focused on the damage caused to two British warships in the North Corfu Strait. The ships were passing through the strait when they were struck by mines, even though the strait had been previously swept. This caused extensive material damage and the death of 44 people.32

The ICJ was asked to determine whether Albania was responsible for the explosions in Albanian waters, and if so, would Albania be required to pay compensation?33_{The court failing}

to establish the intent criteria on Albania, said that the State must have noticed the laying of the mines, rendering the assertion of ignorance improbable. Due to these factors, the Court held Albania responsible for a lack of due diligence, specifically, the obligation to inform ships where the mines are located.

The court used the Knowledge requirement as a basis for attribution of responsibility. Albania knew the mines were located on the strait; Therefore, it had the obligation to notify other States where the mines were located.

32_{Corfu Channel Case (United Kingdom v. Albania); Merits, International Court of Justice (ICJ), 9 April 1949,}

p. 10-13 available at: https://www.refworld.org/cases,ICJ,402399e62.html.

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The court goes on to say that the only reason for not notifying would be if Albania did not have enough time to inform the United Kingdom. The court found that Albania had enough time to inform, therefore failed its obligation.34

The rationale used to attribute responsibility was the same used in the previous Trail Smelter arbitration but done in more general terms. The ICJ did not base its decision on treaty law, but rather on “(…) certain general and well-recognized principles (…)”.35_{Extending the}

notion of transboundary harm to situations of omissions as well, “These grave omissions involve the international responsibility of Albania”.36

Building upon the previous Trail Smelter case, we see that International law, allows for the attribution of responsibility for the damage of another State’s environment, in terms of air pollution. With this new judgment the ICJ also allowed the attribution of responsibility for omissions. Therefore, it seems that Portugal’s lack of prevention mechanisms for wildfires could be a basis for attribution of responsibility for the pollution of the atmosphere.

C. 1957 Lac Lanoux Arbitration (France v. Spain)

Another important innovation of the no-harm rule, and as a result international environmental law, is the Lac Lanoux case. The arbitration focused on the waters of lake Lanoux, in the Pyrenees. The waters of this lake eventually flow in to Spanish territory in the river Ebro, one of Spain’s largest rivers.37

A problem arose when France wanted to create a dam in the lake, and as a result the course of water would be altered, since the water that would originally flow in to Spain would be used by France to produce electricity. Both Governments tried to negotiate an agreement that would satisfy both parties, but Spain continually rejected France’s proposals arguing that the dam would injure Spanish interests, more specifically it would affect Spain’s water supply, leading to a shortage of water, for irrigation. Due to the inability to reach a conclusion, both States decided to refer the dispute to an Arbitral Tribunal, on July 10, 1929.38

p. 22 available at: https://www.refworld.org/cases,ICJ,402399e62.html.

37_{‘Yearbook of the International Law Commission 1974 Volume II Part Two’, p 194}

http://legal.un.org/ilc/publications/yearbooks/english/ilc_1974_v2_p2.pdf.

38_{Yearbook of the International Law Commission 1974 Volume II Part Two’, p 194}

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Both governments had previously concluded a treaty that regulated the administration of these waters. Spain argued that France had violated the treaty in carrying out the works without the previous consent of Spain.

In its decision the Tribunal, again, reaffirmed the principle of State sovereignty and its unlimited character: “Thus, while admittedly there is a rule prohibiting the upper riparian State from altering the waters of a river in circumstances calculated to do serious injury to the lower riparian State (…)” While reaffirming the notion of no-harm, the tribunal, interestingly did not consider the situation at hand to fall under the no-harm obligation.As a result, France could continue the project without Spain’s consent, and Spain could not veto the project. 39

1.4. Evolution of the No-Harm Rule: Soft Law and Multilateral Treaties

Environmental regulation was initially organized around rules governing the exploitation of certain resources, transboundary damage and the use of shared watercourses.40

As we can see, environmental law had its development from a purely anthropocentric perspective. Human development was at the centre of protection. Over the following decades the principle of permanent sovereignty evolved to the “no-harm principle” which later became the “prevention principle”. Here we will see an evolution of international law, where the principle of territorial integrity evolved to the protection of the environment.

After 1945, as a result of the Second World War, there was a ‘wave’ of decolonization, where newly independent States wanted to specifically define their sovereignty over their territory and natural resources, in order to achieve a successful level of political and financial independence.41_{As was mentioned in the UN General Assembly on 14 December 1962 of}

Resolution 1803 (VXII) on “Permanent Sovereignty over Natural Resources:

“the Right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of State concerned”

39_{Yearbook of the International Law Commission 1974 Volume II Part Two’, p 197}

http://legal.un.org/ilc/publications/yearbooks/english/ilc_1974_v2_p2.pdf.

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The flexible nature of the Trail Smelter principle allowed for the development of important soft laws and treaties; it had a huge effect on the development of international environmental law. The decision focused on the effects of transboundary environmental harm and helped develop custom.

A. The 1972 Stockholm Declaration

In 1972 The United Nations held the “Conference on the Human Environment” (hereinafter ‘1972 Conference’) in Stockholm, Sweden. The basis for this conference was to focus on human interactions with the environment, by “stimulating and providing guidelines for action by national governments and international organizations facing environmental issues”. This conference also helped develop the notion of how the ‘alleviation of poverty helps for a better ecological management’.42_{The 1972 Conference resulted in the formulation of the}

“Declaration of the United Nations Conference on the Human Environment”. This declaration had many key issues, among them, the global nature of environmental problems, and the necessity for an extensive cooperation among nations to resolve:

“The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all governments”.43

The declaration also created twenty-six principles to guide nations through their responsibilities. This convention clearly marks the turning point in the development of international environmental politics. For our present study, the most important development to international environmental law, was the formulation of Principle 21:

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.

42_{The Hindu. (2019). Indira Gandhi, the environmentalist. [online] Available at:}

https://www.thehindu.com/books/books-reviews/indira-gandhi-the-environmentalist/article18514883.ece [Accessed 22 May 2019].

43_{"Report of the United Nations Conference on the Human Environment". United Nations.}

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This principle clearly enunciates the principle of permanent sovereignty over a State’s natural resources, though it added the all-important caveat: While States have absolute sovereignty over the exploration of their natural resources, this jurisdiction over their natural borders cannot affect, or damage, the environment of other States or areas beyond national jurisdiction.

B. The 1985 Vienna Convention for the Protection of the Ozone Layer

The 1985 Venna Convention for the Protection of the Ozone Layer44_{(hereinafter ‘}

Ozone Convention’) elaborated upon the principle of 21 of the Stockholm declaration, since it has more specific provisions that detail how to effectively prevent environmental harm in a global context. This multilateral environmental agreement establishes frameworks for the reduction in production of chlorofluorocarbons, due to their contribution to the Ozone depletion.

Under article 2 of this convention we find various obligation including 2(2)(b) the obligation to:

“Adopt appropriate legislative or administrative measures and co-operate in harmonizing appropriate policies to control, limit, reduce or prevent human activities under their jurisdiction or control should it be found that these activities have or are likely to have adverse effects resulting from modification or likely modification of the ozone layer;

Here we see another limitation to State sovereignty in order to protect the territorial integrity of third States.

C. The 1992 Rio Declaration

Ten years after the Stockholm Conference, the Governing Council of the United Nations Environment Programme (UNEP) met to discuss the implementation of the Stockholm recommendations. Recognizing the insufficient implementation of the Action Plan adopted by the Stockholm Declaration.45

As a result, the UN General Assembly established a commission. The “Brundtland Commission”. This commission issued an influential report. The “Our Common Future” report. Here, the innovate concept of ‘sustainable development’ was created:

44_{‘The Vienna Convention for The Vienna Convention for the Protection of the the Protection of the Ozone}

Layer Ozone Layer UNEP Ozone Secretariat United Nations Environment Programme’, accessed 26 July 2019, http://www.unep.ch/ozone.

45_{Dupuy, Pierre-Marie, author. | Viñuales, Jorge E., author. | International environmental law. |Second edition|}

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“Humanity has the ability to make development sustainable to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs (…) Poverty is not only an evil in itself, but sustainable development requires meeting the basic needs of all and extending to all the opportunity to fulfil their aspirations for a better life. A world in which poverty is endemic will always be prone to ecological and other catastrophes.”.46

It is important to note, the birth of this concept still had the classic anthropocentric perspective, which was the norm of the time. Sustainable development exists, when future generations have the capacity to meet their own needs.

Wanting to develop this notion of ‘sustainability’ further, the UN held a new conference in 1992. ‘The United Nations Conference on Environment and Development’ (UNCED), known as the ‘Rio Conference’. Since issues of sustainability were too big for individual member-states to determine.

The Rio Conference was attended by delegations representing 176 States. The results of this conference were: “Rio Declaration on Environment and Development”, “Agenda 21”, creation of a Commission for Sustainable Development (Hereinafter ‘CSD’) and the non-legally binding “Principles for a Global Consensus on the Management, Conservation and Sustainable development of All Types of Forests”. As Dupuy referenced, “from a legal standpoint, the Rio Declaration is the most representative instrument of the entire field of international environmental law”.47

The 1992 Rio Declaration established the most generally accepted principles of international environmental law. Notably:

(Principle of Prevention)

Principle 2

“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.

46_{Report of the World Commission on Environment and Development: ‘Our Common Future’ 10}th_{March 1987,}

[27]

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(Precautionary Principle)

Principle 15

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

(Transboundary Pollution)

Principle 18

“States shall immediately notify other States of any natural disasters or other

emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted”.

D. The United Nations Framework Convention on Climate Change (UNFCCC)

The Rio Earth summit also lead to the creation of the United Nations Framework Convention on Climate Change (Hereinafter “UNFCCC”), a treaty adopted with the objective of “stabilizing greenhouse gas concentrations in the atmosphere”.48_{The convention has 197}

parties, enjoying a broad legitimacy, due to its nearly universal membership.49_{The parties to}

the UNFCCC created the “Kyoto Protocol” in 1997. The Protocol established legally binding obligations for developed countries to reduce their greenhouse gas emissions between the period of 2008-2012. The second commitment runs from 2013-2020 and is based on the “Doha Amendment to the Protocol”. In 2018, Portugal, in accordance with Article 4, paragraph 2, of the Kyoto Protocol notified the Secretariat of its agreement to fulfil its commitments under the Kyoto Protocol.50

E. 1983 Convention on Long-Range Transboundary Air Pollution

The Convention on Long-Range Transboundary Air Pollution ( Hereinafter ‘LTRAP Convention’), was the first international, legally binding instrument, that dealt with the impact of air pollution. Some of its key provisions for our study include:

48_{‘UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE UNITED NATIONS’,}

1992,

http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf.

49_{‘2019 Climate Change Report - How Solar Energy Can Help’, accessed 29 May 2019,}

https://ecotality.com/climate-change-report-how-advantages-of-solar-energy-help/.

50_{‘Notification of Portugal to Fulfil the Commitments of the Kyoto Protocol’, accessed 29 May 2019,}

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Article 2: The Contracting Parties, taking due account of the facts and problems

involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution.

Article 6: Air quality management Taking into account articles 2 to 5, the ongoing

research, exchange of information and monitoring and the results thereof, the cost and effectiveness of local and other remedies and, in order to combat air pollution, in particular that originating from new or rebuilt installations, each Contracting Party undertakes to develop the best policies and strategies including air quality management systems and, as part of them, control measures compatible with balanced development, in particular by using the best available technology which is economically feasible and low- and non-waste technology

Portugal ratified on the 14 of November 1979.51_{The convention focused on limiting,}

reducing and preventing transboundary air pollution. States should “develop policies and strategies to combat the discharge of air pollutants, through exchanges of information, consultation, research and monitoring”.52_{The convention has been extended by the creation}

of eight protocols which have, as the UNECE (United nations Economic Commission of Europe) affirms, the objective of identifying “specific measures to be taken by Parties to cut their emissions of air pollutants”. The LRTAP Convention noted “a rise in the level of emission of air pollutants within the region as forecast may increase (…) adverse effects.”.53

Summary

Both the Rio and Stockholm declaration are intrinsically linked. “If Stockholm symbolized the birth of modern international environmental law, Rio represents its ‘coming of age’”.54_{It was in 2002 that the focus shifted from normative development to implementation.}55

In 2016, the UNFCCC developed the ‘Paris Agreement’. This agreement built upon the existing convention and brought all nations in to a common cause to undertake ambitious efforts to combat climate change.56_{This agreement’s essential aim, is to strengthen “the global}

51_{Unece.org. (2019). Convention on Long-Range Transboundary Air Pollution -Status -. [online] Available at:}

http://www.unece.org/fileadmin//DAM/env/lrtap/status/lrtap_st.htm [Accessed 13 Jun. 2019].

52_{Unece.org. (2019). Convention on Long-Range Transboundary Air Pollution. [online] Available at:}

http://www.unece.org/fileadmin//DAM/env/lrtap/welcome.html [Accessed 13 Jun. 2019].

53_{Updated Handbook for the 1979 Convention on Long-Range Transboundary Air Pollution and Its Protocols,}

accessed 13 June 2019, http://www.unece.org.

2018, P. 17

56_{Unfccc.int. (2019). The Paris Agreement | UNFCCC. [online] Available at:}

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response to the threat of climate change by keeping a global temperature rise, this century, well below 2 degrees Celsius”. Portugal ratified on the 7th_{of October 2016.}

On the 8th_{of May 2018, eight European countries called for an ambitious strategy to tackle}

climate change. This solution would involve spending a quarter of the entire EU budget on fighting it. The countries that have signed this statement includes Portugal, along with France, Belgium, Denmark, Luxemburg, Netherlands, Spain and Sweden. This proposition urged the EU to cut emissions to net zero by 2050. This ambitious proposal shows how States have started to see the importance climate change will have on the future of humanity. Where they specifically highlight the effects of climate change being felt on European soil, citing “heat waves and ‘scorching’ fires last summer”.57_{According to a European Commission from the}

20th_{of September 2018, there is a need for “stronger measures to prevent wildfires”.}58

2. Relation Between Transboundary Harm and Precautionary Principle

The precautionary principle constitutes part of the fabric of environmental treaty law. When it comes to forest management there is no all-encompassing, cohesive and comprehensive legal instrument that deals with this.59_{Without the development of}

responsibility for transboundary harm, i.e. the no-harm rule, there would not be a precautionary principle. The notions of State sovereignty and territorial integrity are connected to transboundary harm. One must undertake precautionary measures, which are only possible due to a State’s sovereignty, in order to not harm the territorial integrity of another State.

The link between the precautionary principle and the obligation to take all necessary measures to prevent harm is self-standing. Since to effectively implement precautionary measures, one needs to create appropriate preventatives need to be taken.

57_{Euronews. (2019). Eight EU countries call for more ambitious strategy to tackle climate change. [online]}

Available at: https://www.euronews.com/2019/05/08/eight-eu-countries-call-for-more-ambitious-strategy-to-tackle-climate-change [Accessed 22 May 2019].

58_{European Commission - European Commission. (2019). Annual report on Forest Fires in Europe. [online]}

Available at: https://ec.europa.eu/commission/news/annual-report-forest-fires-europe-2018-sep-20_en [Access ed 22 May 2019].

59_{Sumudu Atapattu and Arie Trouwborst, ‘Evolution and Status of the Precautionary Principle in International}

Law’, The American Journal of International Law 96, no. 4 (October 2002): 1016, https://doi.org/10.2307/3070712.

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2.1. Legal Status of the Precautionary Principle

The precautionary principle is commonly referred to as a “general principle of international law”. This means it is applicable to all members of the international community. This is a principle with a general scope, representing the community’s common interests.60

The “principle of avoidance of transboundary harm”, found under article 21 of the Stockholm Declaration, reiterated by Principle 2 of the Rio Declaration, is a form of costumary international law.61_{While article 21 of the Stockholm Declaration focuses on the principle of}

State sovereignty, the precautionary principle’s object is the environment as an ‘object’ in itself.62

When a particular activity has negative effects that are known, measures to avoid them are ‘preventative’. When these effects are not known, then the action takes on a precautionary nature. 63_{One could say precaution has its roots in prevention. The precautionary principle}

teaches preventative action in the face of uncertainty.64_{The “precautionary principle is taken}

to assume that preventative and abetment action is always appropriate where there is an indication of a threat of, more or less significant, environmental harm”.65_{While one could}

consider the precautionary principle as comprising the preventative principle, international instruments present precaution and prevention as two separate principles.66

60_{umudu Atapattu and Arie Trouwborst, ‘Evolution and Status of the Precautionary Principle in International}

Law’, The American Journal of International Law 96, no. 4 (October 2002): [34] 1016, https://doi.org/10.2307/3070712.

61_{International Court of Justice, 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear}

Weapons. ICJ Rep., 1996, see pp.241-242.

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The Rio Declaration did not incorporate the preventative principle as a self-standing one, its nature is found under Principle 15:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.

While a distinction is being made between prevention and precaution, in reality it does not seem necessary since, “precaution being more or less than prevention in an uncertain situation.67

When it comes to wildfires, invoking the precautionary principle is the most advantageous. When invoking this principle, one needs to see its status in international law, is it considered to be custom? The precautionary principle has “appeared frequently in academic literature”, which proves an academic consensus in favour of this principle.68_{The principle is}

expressed in the Rio declaration. Therefore, basing ones claim on the precautionary principle for the responsibility of wildfires will be the most successful.

When it comes to threats to the environment, the traditional approach of States, is to wait for proof of actual damage before taking corrective action. Limiting the application of preventative measures to activities known to be injurious.69_{In our case, 2017 the worst year}

for wildfires. Portugal only enacted in ‘corrective’ actions when damage had already been proven.

The precautionary principle is a general principle of international environmental law, it serves as a guideline for forming policy and legal instruments in the area. It has been incorporated in many multilateral treaties.70_{While binding on States that ratify. The}

precautionary principle is also binding on those that do not, due to its opinion juris sive necessitates, the principle should be considered costumary international law.

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“In the face of environmental hazards, and at a minimum in those cases where serious or irreversible harm is feared, preventative and abetment action must be taken even where uncertainty of whatever nature remains.”71_{The precautionary principle is inherent to}

international environmental law.72_{The lack of scientific certainty cannot be used as an excuse}

to not protect a State from environmental degradation.73_{A fundamental reason for the}

protection of the environment is the ‘intergenerational equity’, this notion comes from the previously mentioned Burtdland Report, which is based on the necessity for society today to develop in such a manner that future generations will be able to meet their own needs.

3. The Obligation of Due Diligence Related to the Prohibition of Transboundary Damage

One of the cornerstones of international law is, “States shall not inflict damage, or violate the rights of other States”. As was previously mentioned, in international environmental law this cornerstone can be found under the “no harm rule”, found in principle 2 of the Rio Declaration. Prohibiting transboundary environmental damage. The ICJ helped define this in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons:

“The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives” Due diligence is the obligation to act diligently rather than an obligation prevent damage. It is a “framework concept”, therefore its dimension depends on the specific risks and activities in question.74_{In terms of the prohibition of transboundary harm, due diligence seems}

to be an obligation of minimum standard, where the governments conduct shall be evaluated by comparing it to the conduct of a “good government”.75

Law’, The American Journal of International Law 96, no. 4 (October 2002): 1016, https://doi.org/10.2307/3070712.

72_{Kreuter-Kirchhof Charlotte, ‘Atmosphere, International Protection’, in Max Planck Encyclopedia of Public}

International Law (Oxford University Press, 2011), [8] https://doi.org/10.1093/law:epil/9780199231690/e1561.

73_{Kreuter-Kirchhof Charlotte, ‘Atmosphere, International Protection’, in Max Planck Encyclopedia of Public}

International Law (Oxford University Press, 2011), [25] https://doi.org/10.1093/law:epil/9780199231690/e1561.

74_{Christina Voigt, ‘State Responsibility for Climate Change Damages’, p.11, accessed 01 July 2019,}

https://doi.org/10.1163/090273508X290672.

75_{Christina Voigt, ‘State Responsibility for Climate Change Damages’, accessed 01 July 2019,}

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Acting with due diligence requires a State to take “unilateral measures” to prevent or minimize the risk of transboundary harm, therefore there is a need to formulate and implement national policies that will achieve this objective.76

Due diligence, and its broad scope might prove useful for the attribution of responsibility in situations where States fail to protect their territory. This was the situation in the Corfu Channel case, which helped define the notion of due diligence. States have an obligation, not to, knowingly, allow its territory to be used for acts contrary to the rights of other States.77_{Due diligence reflects the conduct the international community expects from}

States. The expectation that States have a good government in order to “effectively protect other States and the global environment.78_{The failure of exercising due diligence means the}

State failed to “fulfil the standard of conduct expected of good government in the situation”.79

In situations of climate change damages, acting with due diligence requires a standard of care, which Voigt in her study defines as the “opportunity to act or prevent”; The “foreseeability of harm” and the “proportionality of the choice of measures to prevent harm or to minimize risk”.80_{She goes on to define each one.}

The ‘opportunity to act or prevent’ means, making every effort to minimize the risk of harm, by taking the appropriate preventative measures. Even if there is uncertainty (precautionary principle).

The ‘foreseeability of harm’ is defined by the establishment of a link between the omission and the harmful consequences. The State “ought to have known”. The point of foreseeability is determined by current scientific knowledge.81

The ‘proportionality of the choice of measures to minimize risk’, is determined by the technical and economic abilities of the State controlling the activity. There must be balance between the States ability to prevent harm, with the interests of the potentially harmed State.

76_{ILC Rep. (2001) Document A/56/10, p.393 para 10.} 77_{ICJ, Corfu Channel case, Judgment, ICJ Reports 1949}

78_{Maria Flemme, ‘Due Diligence in International Law’, accessed 25 May 2019,}

https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1557482&fileOId=1564336.

79_{Maria Flemme, ‘Due Diligence in International Law’, accessed 25 May 2019, [12]}

https://lup.lub.lu.se/luur/download?func=downloadFile&recordOId=1557482&fileOId=1564336.

80_{C.Voigt, ‘State Responsibility for Climate Change Damages’, Nordic Journal of International Law, accessed}

14 June 2019, [10]

https://heinonline.org/HOL/Page?handle=hein.journals/nordic77&div=5&g_sent=1&casa_token=&collection=j ournals&t=1560480063.

81_{C.Voigt, ‘State Responsibility for Climate Change Damages’, Nordic Journal of International Law, accessed}

14 June 2019, [12]

https://heinonline.org/HOL/Page?handle=hein.journals/nordic77&div=5&g_sent=1&casa_token=&collection=j ournals&t=1560480063.

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Finally, the causal link between the activity and the damage needs to be satisfied. This is done with effective standards of proof, as was the standard used in the Corfu Channel judgment. When it comes to wildfire prevention Portugal has failed to monitor and protect the Portuguese environment, and as a result the international environment. To establish a violation of the due diligence obligation there needs to causation. In wildfire emissions the causal link might be hard to define.

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Chapter 2: The transboundary nature of air pollution

The first time a suggestion was made, on the possibility of air pollution going from one State to the other, was in 1881. A Norwegian scientist attributed snowfall to an industrial district in Britain.82_{It was only in 1991 that international law codified the transboundary nature}

of air pollution, with the creation of the 19991 VOC Protocol.83_{The creation of the subsequent}

Gothenburg Protocol added “air pollution could be transported between continents and not just between neighbouring countries.84

Transboundary air pollution has many negative impacts on the environment, while this took some time for States to accept, eventually, science had proven this fact, and in 1979 the LRTAP Convention was created.

Following the LRTAP Convention. In 1985, the Helsinki Protocol “recognized that air pollution was causing ‘widespread damage… to natural resources of vital environmental and economic importance, such as forests, soils and waters”.85

More Protocols were developed later, which included the, 1988 Sofia Protocol, the 1991 VOC Protocol, the 1994 Oslo Protocol and the 1999 Gothenburg Protocol. All of which helped develop the notion of air pollution and the effect it has on the environment.86

An important evolution on the notion of air pollution and its effects, comes from chemist Robert Angus Smith, his book ‘Air and Rain: The beginnings of Chemical Climatology’ set down the principles of air pollution. Smith “demonstrated that the chemistry of precipitation was linked to such factors as wind, proximity to the ocean, frequency of rain

82_{Alexander Gillespie, Climate Change, Ozone Depletion and Air Pollution: Legal Commentaries within the}

Context of Science and Policy, Climate Change, Ozone Depletion and Air Pollution: Legal Commentaries within the Context of Science and Policy (Brill, 2005), [67] https://doi.org/10.1163/ej.9789004145207.i-405.

83_{“VOCs, nitrogen oxides and resulting ozone are transported across international boundaries, affecting air}

quality in neighbouring states’: Alexander Gillespie, Climate Change, Ozone Depletion and Air Pollution: Legal Commentaries within the Context of Science and Policy, Climate Change, Ozone Depletion and Air Pollution: Legal Commentaries within the Context of Science and Policy (Brill, 2005), [68]

https://doi.org/10.1163/ej.9789004145207.i-405.