Public International Law Governing Transboundary Pollution: The University of Queensland Law Journal Vol. 13, No.2

112 The University ofQueensland Law Journal Vol. 13, No.
Public International Law Governing

Transboundary Pollution
Professor Sharon Williams*
"When I stand looking out over my lake, what will I see and hear
come the year 2000? Will peepers be trilling, fish jumping, trees leaf-
ing, deer drinking, baby birds chirping? Or will it be a silent spring?"
Dr. Lars Overrein. Quoted in A. La Bastille, Acid Rain.
How Great a Menace? (1981), 160(5)
National Geographic 652 at 680.
Over the last decade there has been clearly evidenced an increasing
domestic concern for the protection of the human environment.
The amounts of pollutants that are transported across borders, or
the threatened risk of such happening has raised this concern to one
of international importance.
The crisis is clear. The solutions are less so as will be seen during
the course of this paper. The crisis is both complicated and far
reaching in all its compound ramifications for today and for the
future of mankind. It is an absolute necessity to envisage trans-
boundary pollution in a broad environmental context. It is sub-
mitted that transboundary pollution problems can only be treated
comprehensively when the broader environmental concerns have
been identified and come to grips with. 1 The problem of trans-
boundary pollution is multifaceted and each facet, whether it be
concerned with air or water pollution cannot be dealt with in a
vacuum. All types of pollution hazards are fatal dangers to the
planetary ecosystem. That ecosystem is complex and interrelated. 2
Any solutions to the problems posed by such dangers must likewise
be interrelated.
In the course of this paper, I shall use the term "transboundary
pollution" often. This will be used to encompass environmental
pollution from many sources. The connecting factor is that the
phrase is used to denote "pollution" that emanates from the terri-
tory of one state and causes injury, actual or prospective, in
another state. It is clear that pollution does not respect inter-
national boundaries. Hazardous air pollutants may be produced in
one state and cause damage within the borders of another state.
Environmental pollution may be caused by chemicals such as
sulphur dioxide (S02) and nitrogen oxide (NO~) being put into the
air in state A and along with other products beIng vented upwards,
especially by tall stacks, undergoing complex chemical reactions
high in the atmosphere and then circulating with the air masses,
with the end result that after perhaps travelling hundreds or even
• Osgoode Hall Law School, York University, Toronto.

A paper presented to the Business Section of the International Bar Association,
Toronto, Ontario. October 4, 1983.
1. G.L. Morris, The Dimensions of the Environmental Problem. (1971),21 U. of
T.L.J. 177.
2. I.H. van Lier, Acid Rain and International Law (1981), 1.
Public International Law 113
thousands of miles, acid precipitation falls in state B. Smoke and

fumes may be blown from one state to another. Hazardous liquid
and solid wastes may be discharged on to the land and into inland
waters causing damage to health and property in another state.
This may be of particular danger where two states share a common
drainage basin. Oil pollution and effluent waste disposal may
cause damage to the maritime environment offshore. Other
methods of possible injury could include: thermal pollution;
nuclear emissions into the atmosphere; disturbance of the oxygen-
carbon dioxide balance and the nitrogen cycle and the use of
pesticides, defoliants and other chemicals harmful to people and to
the environment that surrounds them.
The purpose of this paper is to analyse the state of public inter-
national law as regards air and fresh water pollution. First, certain
fundamental existing international legal rules that provide the basic
framework within which international environmental law has
developed will be outlined. Secondly, the legal issues will be
considered. Thirdly, the emerging international environmental law
and the process of its development will be examined and its content
and purpose analysed, through discussion of the various inter-
national conferences, treaties and state practice. In conclusion,
possible solutions to the problems posed by transboundary pollu-
tion will be sought.
A. Existing Fundamental Rules of International Law

The protection of the environment "on both the domestic and the
international levels would at first blush appear to be a relatively
recent preoccupation of governments and international bodies.
However, in the space of some ten years or so it can be said to have
occupied today an important place in international law. The
subject in legal terms is a novel one. Therefore, the law is still very
much in the process of development. It will be seen that there are
glaring lacunae in the law and that the fundamental principles that
underlie the law are not easy to discern. Any analysis of inter-
national environmental law of necessity has to begin with existing
rules of public international law. 3 It is the fundamental rules of
state sovereignty, territorial integrity, state responsibility and prin-
ciples of maritime jurisdiction that provide the basic framework
within which international environmental law has developed.
1. Sovereignty and territorial integrity

Sovereignty is synonymous with independence. 4 Professor Huber
said in his award in the Island of Palmas case: 5
Sovereignty in the relations between States signifies independence.
Independence in regard to a portion of the globe is the right to exercise
therein, to the exclusion of any other State, the functions of a State ...
3. S.A. Williams and A.L.C. de Mestral, Introduction to International Law,

Chiefly as Interpreted and Applied in Canada (1979), 251.
4. Ibid., p. 36.
5. (1928), 11 D.N.R.LA.A. 829.
114 s. Williams
Territorial sovereignty ... involves the exclusive right to display the

activities of a State.
However, it does not mean that a state is beyond the law. As Starke
aptly states: " ... the sovereignty of a State means the residuum of
power which it possesses within the confines laid down by inter-
national law". 6 Being sovereign and independent, a State has
certain rights and corresponding duties. It includes the right to
have exclusive control over its territory, its population and its
domestic affairs. The territory of a State includes its land mass,
whether continental or insular, inland waters and the subsoil
beneath them and the air space above all of these for all purposes.
Finally, States exercise jurisdiction over parts of the sea and seabed
and subsoil adjacent to their coastlines. 7 The corollary is the duty
of non-intervention in the affairs of and territorial sovereignty of
another state. It is clear in the context of international environ-
mental pollution that these principles have a decided impact. States
will claim that they have the right to allow certain activities to take
place on their territory and that other states have no right to inter-
fere. On the other hand a state which is injured by such activities
can likewise claim that its sovereignty and territorial integrity has
been derogated from. 8
Several questions arise. With the apparent dangers present to
environmental well-being, must states be made to limit their
sovereignty by accepting as a mandatory obligation, the necessity
to take all possible measures to prevent pollution?9 If environ-
mental damage has occurred within the territory of another state,
or within the international domain such as outer space or the high
seas, must states accept a mandatory obligation to restore, as far as
is possible, the environment to its former condition? Is there a duty
on states to co-operate with one another to prevent environmental
pollution, to mitigate damage I 0 and to exchange information and
prevention research data?
2. State responsibility
State responsibility is a complex area of international law. Many
bodies have attempted to codify it. II What international law has
6.
Introduction to International Law (8th ed., 1977), p. 3.
7.
Infra, pp. 9-10 on maritime jurisdiction.
See infra, pp. 5-9 on state responsibility.
8.
9.
See J. B. Yates, Unilateral and Multilateral Approaches to Environmental
Problems (1971), 21 U. ofT.L.J. 182.
10. Ibid.
11. For the work of the International Law Commission see Ago, First Report on
State Responsibility (1969),11 Yr Bk Int. L. Comm. p. 125, Doc. A/CN.4/217
and Add. 1; Ago, Second Report on State Responsibility (1970),11 Yr Bk Int.
L. Comm., Doc. A/CN.4/233; Ago, Addendum to the first Report (1971), 11
Yr Bk Int. L. Comm. 193, A/CN.4/217 and Add. 2; Ago, Third Report on
State Responsibility (1971), 11 Yr Bk Int. L. Comm. 199, Doc, A/CN.4/246
and Add. 1-3; Ago, Fourth Report on State Responsibility (1972), 11 Yr Bk
Int. L. Comm. 71, Doc. A/CN.4/264 and Add. 1; Report of the International
Law Commission on the work on its Twenty-fifth Session, May7 -July 13,
1973, Ch. 11 (1973), 11 Yr Bk Int. L. Comm. 161 at p. 165, Doc. A/9010/Rev.
1; Report on its Twenty-Seventh Session May5 -July 25 (1975), 11 Yr Bk. Int.
L. Comm. 46 at p. 51, Doc. A/l00010/Rev. 1; Report of its Twenty-Eighth
endeavoured to do is to develop certain standards and procedures

to enable an injured state to seek redress against the state that has
acted in an internationally wrongful manner. There are certain
essential characteristics to any claim for redress: there must be an
identifiable obligation existing between the states concerned; there
must be a breach or non-performance of that obligation that is
imputable to the state against which the claim is being made and
damage must have resulted. 12 In general theory state responsibility
is concerned with injuries suffered by aliens abroad. For example a
citizen of state A is injured by a state official of state B in state B.
However, the principles can be extended to cover situations into
which the environmental pollution cases will fit. Starting from th~
premise that on the territory of a state certain conditions shall
prevail by which the safety of persons and property will be guaran-
teed, it will be seen that states have been held to be under an obliga-
tion not to pollute and cause serious damage to the air of an adjoin-
ing state. 13 This principle, although simple to articulate, does have
some problems of practical importance. As stated, the act or
omission for which international responsibility is sought must be
imputable to the state itself. It cannot be responsible for acts of
private individuals over whom it has no control. Therefore a link
must be found to exist between the state and the actor who has in
fact acted or omitted to act in such a way that environmental injury
has occurred to persons or property in another state. A state under
the general theory of state responsibility may engage responsibility
in a number of ways. It will be responsible for the acts or omissions
of its officials that cause injury to aliens or their property. The
breach of the duty owed to the state of whom the injured individual
is a subject, is imputed from the official or department of state to
the state itself. Under the Draft Articles on State Responsibility
drawn up by the International Law Commission, 14 acts or
omissions imputable to the state would include those of state
organs belonging to the legislative, executive, judicial or other
branches of government, provided the organ was acting as such in
the case in question. There would also be responsibility for the
conduct of organs of a territorial government or other unit within a
Session May 3 -July 23, 1976, Ch. 11 (1976), 11 Yr Bk Int. L. Comm. 1 at

p. 69, Doc. A/31/10; Ago, Sixth Report on State Responsibility (1977),11 Yr
Bk Int. L. Comm. p. 3, Doc. A/CN.4/302 and Add. 1-3; Report on its
Twenty-Ninth Session, May 9-July 29,1977, Ch. 11, U.N. General Assembly
Off. Rec. 32nd sess. supp. No. 10, at p. 5; Ago, Seventh Report on State
Responsibility (1978), 11 Yr Bk Int. L. Comm. p. 31, Doc. A/CN.4/307 and
Add. 1 and 2; Report on its Thirtieth Session, May 8-July 28,1978, (1978) 11
Yr Bk Int. L. Comm. p. 74, Doc. A/CN.4/SER/1978/Add. 1 (Part 2); Ago,
Eighth Report on State Responsibility (1979), 11 Yr Bk Int. L. Comm. p. 3,
Doc. A/CN.4/318 and Add. 1-4; Report on its Thirty-first Session, May 14-
August 3, 1979, (1979), 11 Yr Bk Int. L. Comm. p. 87; Ago, Ninth Report on
State Responsibility (1980), 11 Yr Bk Int. L. Comm.; Report on its Thirty-
Second Session, May 5-July 25, 1980, p. 26, Doc. A/CN.4/SER. A/1980/
Add. 1 (Part 2).
12. The International Law Commission does not appear to look at this as a necess-
ity: (1973), 11 Yr Bk Int. L. Comm. p. 183.
13. Trail Smelter Arbitration (1941), 111 U.N.R.LA.A. 1905.
14. U.N. Doc. A/32/183 arts. 5-8, 10-14 (1977), 16 Int. L. Mat. 1249.
116 s. Williams
federal state. IS A state may not plead a rule or lack of a rule in its
own domestic law as a defence to a claim for state responsibility
based on international law. 16
It will also be responsible where its officials have failed to act
diligently and have not prevented the acts of private individuals
which have caused environmental damage abroad. Therefore, the
state could be liable for not having acted in a reasonable way to
protect aliens or their property, by allowing pollution by indivi-
duals or corporations in their territory.
Responsibility could also arise where although there is no liabil-
ity for the actual pollution as in the situations mentioned above, no
action is taken by the state to prosecute the individuals concerned
who caused the injuries. It may occur also where there is, inter alia,
a denial or obstruction of access to the courts, an unwarranted
delay in procedure, a manifestly unjust judgment, or no reasonable
possibility of adequate compensation.
Of particular relevance and difficulty is the question of liability
and on what basis it is to be determined. Is it to be based on sub-
jective fault criteria; 17 objective fault criteria18 or strict 19 or
absolute liability?20 According to many writers 21 it is the objective
fault or responsibility principle that has been followed by states in
their practice, by arbitral tribunals and by the International Court
15. International law has affirmed the liability of a federal state if a constituent
member of that state acts in a manner incompatible with international law:
See Report of the Committee of Experts for the Progressive Codification of
International Law to the Council of the League of Nations; Hackworth, Digest
of International Law, p. 595; Draft Articles on State Responsibility, supra,
footnote 14, art. 6. Note also art. 27 of the Vienna Convention on the Law of
Treaties, U.N. Doc. A./CONF. 39/27, May 23, 1969, (1969), 8 Int. L. Mat.
679 that provides that a party to a treaty may not invoke the provisions of its
internal law as a justification for its failure to perform treaty obligations. See
also art. 46, ibid.
16. Free Zones of Upper Savoy and the District of Gex (1932), P.C.I.J., Series
AlB, No. 46, at p. 167; Cutting v. The King, [1930) 2 D.L.R. 297 (Que).
17. In this concept the individual blame of the person is necessary to incur respon-
sibility by the state. It is necessary to show either dolus (intention) or culpa
(blame).
18. If there is a breach of an international obligation that can be imputed to the
state, responsibility follows. If the state can show force majeure or an act of a
third party it will be exonerated: see van Lier, op cit., footnote 2, p. 127. In this
context provided that agency and causal connexion are established, there is a
breach of duty by result: see I. Brownlie, Principles of Public International
Law (3rd ed., 1979), pp. 436-39.
19. In strict liability a state would be liable for acts or omissions which result in
pollution on its territory causing injuries in another state, even when it has
complied with required standards of care of the time. Acts of God, acts of
third parties or force majeure may exculpate the accused state. See van Lier, op
cit., footnote 2, p. 127; L.F.E. Goldie, Liability for Damage and the Progress-
ive Development of International Law (1965), 14 Int. and Compo L. Q. 1201.
20. In absolute liability, there is total responsibility even if all applicable standards
of care are complied with. There is no exoneration as in the case of strict
liability.
21. See for example, Brownlie, supra, at p. 436; van Lier, op cit., footnote 2,
p. 127. See the use of this principle in the Neer claim (1926), IV U.N .R.LA.A.
60 at 61-62; the Roberts claim (1926), IV U.N.R.I.A.A. 77 at 80; and the Caire
claim (1929), V.U.N.R.I.A.A. 516 at 529-31.
of Justice. It follows that if in the area of transboundary pollution

fault should playa part, it should only be in the objective sense. 22
It has been suggested that the use of strict liability may be still de
legeferenda. 23 However, there is some support for it at the present
time. 24 It can be argued that in the Corfu Channel case 2S and in the
Trail Smelter Arbitration 26 fault of no kind was established. 27
Likewise, in the Gut-Dam Arbitration 28 the tribunal was not
interested in fault or knowledge of prospective injuries by Canada.
Canada was held liable. This decision, however, is of less value
when it is added that Canada had accepted the obligation of
compensation payment in advance. In the Lac Lanoux29 arbitra-
tion between France and Spain, fault on the part of France was not
a requirement. The matter is not addressed in the Stockholm
Declaration of June 16th 1972. 30 It has been argued that this might
negate any requirement for the establishment of fault. 31 Further,
some O.E.C.D. states have argued that a system of strict liability
should be introduced in all cases of transboundary pollution,
regardless of any safeguard measures that have been taken. 32
On this basis, it can be argued that strict liability may become, in
the not too distant future, the accepted norm re liability in custom-
ary international law. 33 This argument is justified if the afore-
mentioned arbitral decisions, declarations and statements by
governments can be seen to indicate the required state practice and
opinio juris necessary to form a rule of customary international
law. 34
It is impossible to designate any similar status to the absolute
liability theory. There is no indication through any of the forms of
state practice or judicial or arbitral decisions that would allow the
22. van Lier, op cit., footnote 2, at p. 128.

23. Ibid. In other words, the law as it should be.
24. Ibid. See also Goldie, op cit., footnote 19, at pp. 1227-31.
25. [1949] I.C.J.R. 1.
26. Supra, footnote 13. The Tribunal stated at p. 180 that:
If any damage as defined under Question No. 2 shall have occurred
since October 1, 1940, or shall occur in the future, whether through
failure on the part of the Smelter to comply with the regulations herein
prescribed or notwithstanding the maintenance of the regime, an
indemnity shall be paid for such damage.
27. See, van Lier, op cit., footnote 2, at p. 128.
28. Between Canada and the United States (1968), 8 Int. L. Mat. 118.
29. (1957), XII U.N.R.I.A.A. 303.
30. Declaration of the United Nations Conference on the Human Environment,
Doc. A/CONF. 48/14/Rev. 1, principles 21 and 22.
31. See van Lier, op cit., footnote 2, at p. 129. The case of the United States' pay-
ment of $2 million to Japanese fishermen injured during United States atomic
testing in 1954, with no fault acknowledged, has been quoted by some writers
as further evidence of strict liability being the rule: see van Lier, ibid.; Goldie,
op cit., footnote 19, at pp. 1231-33; J. Schneider, World Public Order of the
Environment: Towards an International Ecological Law and Organization
(1979), p. 167.
32. O.E.C.D. Environment Committee, First Interim Report of the Environment
Committee to the Council on Responsibility and Liability of States in Matters
of Transfrontier Pollution (April 15th, 1976), p. 16.
33. van Lier, op cit., footnote 2, at p. 129; Goldie, op cit., footnote 19, at p. 1231.
34. Note the requirements laid down by the International Court of Justice in The
North Sea Continental Shelf cases, [1969] I.C.J.R. 3.
118 s. Williams
supposition that this theory is presently or is imminently on the
verge of crystallizing into a rule of customary international law.
Unless states agree to such a rule of liability in an international
agreement, the notion of absolute liability does not appear to merit
practical consideration. 35
In international law the effect of a finding of state responsibility
is that the state found responsible to another must make repara-
tion. 36 The usual type of reparation for a wrongful act or omission
is an indemnity that corresponds to the damage suffered. In the
context of damage caused by transboundary pollution restitution in
the majority of cases would not be a possibility. It is impossible to
re-establish the situation as it existed prior to the delinquent act and
hence to wipe out the consequences of the illegality.37 Therefore
compensation in monetary terms and formal apologies, statements
of consideration or intent for the future might be in order. It has
been suggested by one author 38 that international tribunals may
impose injunctions to restrain pollution activities in the future.
Also the International Court of Justice may grant interim measures
to prevent further damage ensuing during the conduct of an action
before it. 39
3. Maritime Jurisdiction
It is beyond the scope of this short paper to analyse in any depth the
impact that maritime jurisdiction has had and will continue to have
on the general development of international environmental law.
Nevertheless, it must be emphasized that the marine environment is
the one area of concern where the greatest progress has been
achieved in developing new law. It would not be an exaggeration
even to assert that many of the rules and principles developed there
will have a decisive impact upon the rules governing the whole area
of international environmental law. Of particular relevance is the
work undertaken by I.M.C.O. which has focussed mainly upon
35. It should be noted that the only cases in which absolute liability has been used
are those conventions that concern nuclear activities: see e.g. the Convention
on Third Party Liability in the Field of Nuclear Energy, Paris, July 29th, 1960;
the International Convention on the Liability of the Operators of Nuclear
Ships, Brussels, May 25th, 1969; the Convention Supplement to the Paris Con-
vention on Third Party Liability in the Field of Nuclear Energy, Brussels,
January 31st, 1963 (1963), 2Int. L. Mat. 685; the Vienna Convention on Civil
Liability for Nuclear Damage, May 21st, 1963 (1963), 2 Int. L. Mat. 727. It
should also be noted that the Convention on the International Liability for
Damage Caused by Space Objects, March 29th, 1972, V.N.G.A. Res. 2777
(XXVI), 1975 Can. T.S. No.7 verges on the utilization of the absolute theory.
See, van Lier, op cit., footnote 2, pp. 129-30.
36. In the Chorzow Factory (Indemnity) case (1928), P.C.I.J., Series A, No. 17, at
pp. 27-28, the Court observed" ... that it is a principle of international law,
and even a general conception of law, that any breach of an engagement
involves an obligation to make reparation . . . ".
37. Ibid., at p. 47.
38. van Lier, op cit., footnote 2, at pp. 131-34.
39. Electricity Company of Sofia Case (1939), P .C.I.J. Series A/B No. 79, at
p. 199; Trail Sme/tercase, supra, footnote 13; note especially the Nuclear Tests
cases (1973), I.C.J .R. 99.
pollution by ships40 and the Third United Nations Law of the Sea
Conference which has produced in the text of its final convention
the most ambitious attempt to protect the marine environment
from all sources of pollution. 41 Concerning pollution from vessels
the states parties will be obliged to take measures at least as effect-
ive as "generally accepted international rules and standards".
Failure to do this will result in state responsibility.42 The Conven-
tion contains, inter alia, general provisions committing the states
parties to protect the marine environment from pollution from all
sources. 43 Of particular interest to Canada is article 234 allowing
coastal states broad jurisdiction to adopt and enforce their own
rules for pollution from ships in "ice-covered areas", within the
exclusive economic zone, where pollution of the marine environ-
ment could cause major harm to or irreversible disturbance of the
ecological balance. This article gives international recognition to
the unilateral stance taken by Canada in the Arctic Waters Pollu-
tion Prevention Act. 44 The most significant contribution of
UNCLOS III is the duty set out in article 194(2) not to "cause
damage by pollution to other states and their environment" which
coupled with article 235 on liability and responsibility will make
states liable for damage attributable directly to them and respon-
sible to ensure recourse, both prompt and adequate, against
persons under their jurisdiction who cause the pollution affecting
other states and their nationals. Failure to live up to this obligation
will make the state responsible to the injured party.45 It may well
be that this approach to State responsibility and liability for pollu-
tion will be adopted more generally in international environmental
law.
In conclusion it should be added that the new Law of the Sea
40. Convention for the Prevention of Pollution of the Sea by Oil (1954), 327
U.N.T.S. 3 amended in 1967 and 1971; Convention on the Prevention of
Pollution from Ships, 1973 (1973), 12 Int. L. Mat. 1319; Convention relating
to Intervention on the High Seas in Cases of Oil Pollution Casualties (1970), 9
Int. L. Mat. 25; Convention on Civil Liability for Oil Pollution Damage, 1969,
(1970) 9 Int. L. Mat. 45; Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1971 (1972), 11 Int. L.
Mat. 284.
The Legal Committee of I.M.C.O. has been working on a Convention on
Liability and Compensation in Connection with the Carriage of Noxious and
Hazardous Substances by Sea, with a view to holding a diplomatic conference
to conclude the convention in 1983 or 1984. See generally, Timagenis, Inter-
national Control of Marine Pollution (1980).
41. UN DOC. A/CONF. 62/121 of October 21st, 1982, (1982), 21 Int. L. Mat.
1261. Note especially, Part XII on the Protection of the Marine Environment.
42. Ibid., art. 211.
43. Ibid., arts, 192-96.
44. R.S.C. 1970 (1st Supp.) c. 2.
45. Art. 235(3) provides that states shall cooperate in the further development of
international law relating to responsibility and liability for the assessment of
and compensation for damage and the settlement of related disputes, as well as
development of criteria and procedures for payment of adequate compensa-
tion, such as compulsory insurance or compensation funds.
120 s. Williams
Treaty 1982 is complemented by a number of regional conventions

dealing with pollution of the marine environment. 46
B. The Legal Issues

The legal issues 47 which have evolved are generally without a
definitive solution, although as will be argued later solutions
appear to be emerging. Among the issues are: is there a duty
imposed by law on the part of states not to pollute the environment
within or without their own jurisdiction? Should there exist such a
duty, what is its nature and what are the consequences of breach?
How is pollution defined by international law? Are states under a
duty not to pollute the territory or marine environment of other
states; is there any international standard by which a state's
conduct can be evaluated? Are states under a duty to notify other
states likely to be affected by some new industrial or natural
resource project; in such cases must the state hold consultations
with a potentially affected state? What consequences flow if the
affected state objects to the threat posed by the development? Are
states under any obligation to monitor the impact of activities
within their territory to determine the impact upon the environ-
ment? Should states take special measures in the case of environ-
mental hazard to other states over and above what they normally
take in their own territory? Are states liable for the actions of their
nationals? Are less developed countries under the same obligations
as developed states?
c. The Emerging International Environmental Law

Article 38(1) of the Statute of the International Court of lustice 48
46. Paris Convention for the Prevention of Pollution from Land-Based Sources,
1974 (1974), 13 lnt. L. Mat. 352; the Barcelona Convention on the Protection
of the Mediterranean Sea against Pollution, 1976 (1976), 15 lnt. L. Mat. 285;
the London Convention on Civil Liability for Oil Pollution Damage Resulting
from Exploration and Exploitation of Seabed Minerals & Resources, 1976
(1977), 16 lnt. L. Mat. 1451.
See the recent Convention for the Protection and Development of the
Marine Environment of the Wider Caribbean Region, Cartagena de Indias,
March 24th, 1983 (1983), 22 Int. L. Mat. 227. This Convention was signed by a
wide group of states: Columbia, France, Grenada, Honduras, Jamaica,
Mexico, Nicaragua, Netherlands Antilles, Panama, St. Lucia, United King-
dom, United States, Venezuela and the E.E.C. The parties in article 3(1) agree
to endeavour to conclude bilateral or multilateral agreements including
regional agreements for the protection of the marine environrnent of the area.
They agree (art. 4[1]) to take all appropriate measures in conformity with inter-
national law and the Convention to prevent, reduce and control pollution of
the Convention area and to ensure sound environmental management. It
covers pollution from ships (art. 5), pollution from land-based sources (art. 7),
pollution from sea-bed activities (art. 8), and airborne pollution (art. 9). The
Convention will enter into force after 9 ratifications have been deposited (art.
28(1]) with the Government of Columbia. U.N.E.P. is designated to perform
secretarial functions (art. 15). Disputes are to be. settled by a special arbitral
tribunal outlined in an annex to the Convention. See also the Protocol
Concerning Cooperation in Combatting Oil Spills in the Wider Caribbean
Region (1983), 22 Int. L. Mat. 240.
47. This section is based on Williams and de Mestral, op cit., footnote 3, at p. 252.
48. 1945, Can. T.S. No.7.
has become known as the most authoritative statement as to the

content of the sources of international law. It provides:
The Court, whose function is to decide in accordance with international
law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establish-
ing rules expressly recognized by the contesting states;
(b) international custom as evidence of a general practice accepted as
law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, [The decision of the Court
has no binding force except between the parties and in respect of
that particular case.] judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as sub-
sidiary means for the determination of rules of law.
1. Treaties
Article 38(1) of the Statute of the International Court of Justice
does not speak of "treaties". Rather, it refers to "international con-
ventions, whether general or particular, establishing rules expressly
recognized by the contesting states". The word "convention" in this
context means treaty. Treaties are not only the first source under
article 38(1). They represent the most modern method of creating
international law. Law-making treaties which are intended to lay
down rules of general application to the states parties and create
certainty have been looked upon as necessary by the world
community as custom is often inadequate to treat the pressing
demands of modern, technological, economic and other changes in
the world today. New global legislation is needed in many spheres
to avert chaos and conflict. Treaties have become of paramount
importance in international relations. It must be understood that
the mere fact that a treaty has been signed and ratified by a requis-
ite number of states 49 and has thereby come into force does not
mean that it will bind non-parties. 50 On the other hand, where a
treaty is merely a codification of existing customary international
law, non-parties will be bound by the customary rule. Bilateral
treaties or treaties between groups of states on a particular matter
constitute law as between the parties. 51 A sufficiently large number
of bilateral treaties on the same topic containing similar provisions
would provide evidence, however, of a rule of customary inter-
national law, as they would indicate uniformity in state practice.
There is no general global convention dealing with air pollution,
the planetary ecosystem, environmental quality,S2 or with water
pollution in international rivers, lakes or common drainage basins.
As already stated earlier in this paper S3 there are global and
49. Each treaty stipulates the number. See Vienna Convention on the Law of
Treaties, art. 15., supra, footnote 15.
50. This was illustrated in the North Sea Continental Sheljcases, [1969] I.C.J.R. 3.
51. See art. 38(l)(a) of the Statute of the International Court of Justice, Supra,
footnote 48.
52. van Lier, op cit., footnote 2, at p. 95. See supra, p. 23 the discussion of the
World Charter on Nature.
53. Supra, section C. 1.
122 s. Williams
regional treaties dealing with maritime pollution. There is also the

specific type of bilateral agreement reached, for example, by
Canada and the United States in the Boundary Waters Treaty
190954 which regulates their conduct concerning pollution of the
boundary waters between them as designated by the treaty. There
are also treaties dealing with nuclear testing 55 and prohibiting
explosions causing radioactive debris to be present outside the terri-
toriallimits of the testing state.
The Nordic Convention on the Protection of the Environment 56
is one of the few treaties specifically dealing with air pollution but
deals alone with the Nordic countries. The 1979 ECE Convention
on Long Range Transboundary Air Pollution 57 which is the only
convention to address the matter of air pollution directly does not
look to the question of liability and is designed rather to aid in the
development of joint air pollution control strategies. It does not
relate to abatement. 5 8
2. Customary International Law

In any society rules emerge that dictate the allowable modes of
behaviour. An unwritten code of conduct will govern the members
of the group that has produced it. Custom originates and continues
to evolve through such a process.
Generally, in international law, custom has been the centrepiece
until, in recent years, a large number of global law-making treaties
has resulted in a decline in its importance as a source of inter-
national legal rules.
In order to determine whether or not a rule of customary inter-
national law exists, it is necessary to look to the actual practice of
states. Custom must be felt to be obligatory by those states that
follow it. Therefore, in the context of international environmental
law, with particular reference to transboundary pollution, it is
necessary to identify state practice and the requisite opinio juris
on the part of states, to see whether such an unwritten code
operates.
Evidence of customary law may be deduced from several possible
sources. First, from statements and declarations made by govern-
ment officials to their legislatures, opinions of legal advisors to
their governments, press releases by governments and published
extracts from relevant articles. Secondly, similar articles in
bilateral or regional treaties may help to evolve rules of customary
international law. Thirdly, from the writings of international
jurists and the decisions of both national and international courts
and tribunals. Fourthly, with the proviso that they do not always
attempt to represent existing international law and are evidence
54. International Boundary Waters Treaty Act, R.S.C., 1970, c. 1-20, Schedule.
See in particular art. IV. For a detailed discussion of such bilateral approaches
see the paper of Mr. P. Rowcliffe in this conference.
55. Treaty Barring Nuclear Weapon Tests in the Atmosphere in Outer Space and
Under Water (1964), 480 U.N.T.S. 43.
56. (1974), 13 Int. L. Mat. 591.
57. UN/ECE/HLM.l of October 22nd, 1979, (1979), 18 Int. L. Mat. 1442.
58. Wetstone Air Pollution Control Laws in North America and the Problem of
Acid Rain and Snow (1980), 10 Environmental L. Reporter 5001 at 50016.
only that those states voting in favour have accepted it as such,

resolutions or declarations adopted by international organiza-
tions. 5 9 Fifthly, unilateral state action which follows a uniform
pattern.
On account of the lack of any binding global written agreement
on the liability for transboundary pollution of air or fresh water,
it is to the above evidence of custom that we must turn.
It has been forcefully argued that customary international law
prohibits a state from using its territory in a manner which does not.
take into consideration the legitimate rights and interests of other
states. 60 Three important international decisions support this view.
The arbitral tribunal in the Trail Smelter case 61 between Canada
and the United States held that
under the principle of international law, as well as 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 of persons therein, when the case is of serious
consequence and the injury is established by clear and convincing
evidence.
This case has been considered as the locus classicus of international
environmental law. 62 However, it should be noted that what the
Tribunal said as to liability can be considered as obiter dicta,63 on
account of the fact that Canada had admitted liability for damage
suffered in the United States resulting from sulphur dioxide
emissions from the Cominco smelter at Trail, British Columbia. 64
The Tribunal's function was only to assess the nature and extent of
the compensation to be paid by Canada. Also, the principle of
international law stated by the Tribunal can be questioned as it
would be difficult to say that in 1931-41 there was sufficient state
practice and opinio juris. The Tribunal referred also to the law of
the United States. 65 Reference to domestic legal systems and
decisions by national tribunals is valid as a subsidiary source of
international law. Nevertheless, the bold principle it was
propounding should have found support in more than a few United
States municipal air pollution cases, as well as to analogies with
water pollution. 66 These criticisms aside, it is clear the holding of
the Tribunal has today become an integral part of international
59. For a good analysis of the worth of United Nations General Assembly resolu-
tions and declarations (albeit in the context of expropriation of foreign proper-
ty) see the international arbitral decision: Texaco Overseas Petroleum Com-
pany and California Asiatic Oil Company v. The Government of the Libyan
Arab Republic (1978), 17 Int. L. Mat. 1.
60. L.J. Bouchez, Rhine Pollution: International Public Law Aspects (1981), 9 (ii)
International Business Lawyer 53.
61. Supra, footnote 13, p. 1965.
62. Handl, Territorial Sovereignty and the Problem of Transnational Air Pollu-
tion (1976), 69 Am. J. Int. L. 50, at p. 69.
63. See Bilder, Controlling Great Lakes Pollution: A Study in United States-
Canadian Environmental Cooperation in Hargrove (ed.) Law, Institutions and
the Global Environment (1972), p. 363.
64. It was privately-owned.
65. It was directed to apply United States law by the compromise.
66. See Teclaff, The Impact of Environmental Concern on the Development of
International Law (1973), 13 Natural Resources Journal 357, at pp. 377-78.
124 S. Williams
environmental law and can be said to have widespread acceptance

by states.
In the Corfu Channel Case67 the International Court of Justice
was called upon to deal with the question of state responsibility for
damage that had emanated from its jurisdiction. The Court held
that it is
every State's obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other states.
Although this decision did not concern environmental pollution
some of the Court's statements can be interpreted as an affirmation
of state responsibility from which it can be inferred that states are
under an obligation not to allow pollution, that might reasonably
be prevented, to damage foreign nations. 68
The arbitral tribunal in the Lac Lanoux case 69 stated:
... When one examines whether France, either during the discussions
or in her proposals, has given sufficient consideration to Spanish
interests, it must be stressed how closely linked together are the obliga-
tion to take into consideration, in the course of negotiations, adverse
interests and the obligation to give a reasonable place to these interests
in the solution finally adopted. A State is ... not relieved from giving a
reasonable place to adverse interests in the solution it adopts simply
because the conversations have been interrupted, even though due to the
intransigence of its partner. On the other hand, in determining the
manner in which a scheme has taken into consideration the interests
involved, the way in which negotiations developed, the total number of
the interests presented, the price which each Party was ready to pay to
have those interests safeguarded, are all essential factors in establishing
the merits of the scheme....
For the sake of clarity fresh water pollution and air pollution will
be analysed separately.
(a) Fresh Water Pollution

In the context of international river law, the view has been express-
ed that there are rules of customary international law governing the
uses of waters of rivers and drainage basins that are within the terri-
tories of two or more states. 70 Each basin state, "is entitled within
its territory to a reasonable and equitable share in the beneficial
uses of the waters of an international drainage basin". 71 Basin
states include all states whose territories contribute to the inter-
national drainage basin, whether or not they are "riparian" states. 72
67. Supra, footnote 25, at p. 22.

68. J. Barros and D. Johnston, The International Law of Pollution (1974), p. 69.
69. Supra, footnote 29, at pp. 315-17.
70. Report of the Committee of the International Law Association on the Uses of
the Waters of International Rivers, contained in the Report of the Fifty-Second
Conference (1967), p. 479. "Drainage Basin" is defined at p. 480 as "an area
within the territories of two or more States in which all the streams of flowing
surface water, both natural and artificial, drain a common outlet or common
outlets either to the sea or to a lake or to some inland place from which there is
no apparent outlet to a sea". See art. 11 of the Helsinki Rules on the Uses of the
Waters of International Rivers.
71. Ibid., art. IV.
72. See the Report of the Committee of the I.L.A., supra, footnote 70, at p. 486.
Thus, it is recognized in the Helsinki Rules (which although not a

binding agreement between states, but rather a document produced
by a non-governmental organization, seeks to state the rules of
customary international law), that underground waters may con-
tribute to an international drainage basin. 73 Article IV is illustra-
tive of the key principle of the Rules, which is that every basin state
in an international drainage basin has the right to reasonable use
and an equitable share of the waters of the basin. The Rules out-
rightly reject the so-called "Harmon Doctrine" of unlimited
sovereignty. 74 This rejection is based on state practice. 7 5 A basin
state is obligated to look to the rights and needs of other states 76
and each is entitled to an equitable share. This latter concept is to
provide the maximum benefit to each basin state from the waters in
question, along with a minimum of detriment. The determination
of what is a reasonable and equitable share is to be determined
"in the light of all the relevant factors in each particular case".77
Naturally, rights which are "equal in kind and correlative with
those" of co-basin states will not necessarily mean that the shares in
the uses of the waters are identical. 78 This will depend upon the
weighing of the relevant factors. 79 The rules consider the reason-
able use of international drainage basins. 80
Of great importance are the articles dealing with pollution. 81
Article IX delineates what "pollution" means in the context of the
Rules. It states that:
... the term "water pollution" refers to any detrimental change result-
ing from human conduct in the natural composition, content, or quality
of the waters of an international drainage basin.
73. Ibid.
74. See commentary to art. IV Helsinki Rules, supra, footnote 70, at p. 486.
75. Ibid., at pp. 486-87. The commentary to article IV states that virtually all states
that have spoken on the question of the Harmon Doctrine have rejected it.
It mentions that in the international river dispute between Bolivia and Chile
over the River Lauca, Chile even though it held the position of upper-basin
state did not try to assert the Harmon Doctrine to justify its actions. See the
note from the Bolivian Ambassador to the Chairman of the Council of the
O.A.S., OEA/Ser. B/VI, April 15th, 1962. In the dispute between Israel and
certain Arab states over the Jordan Basin, the position held by both sides was
that each was entitled to a reasonable share of the basin waters. See (1954), 31
Dept. of State Bull. 132; U.S. Sec. Council Off. Rec., Supp. Jan. -March,
1962, at 87-88 (S/5084).
76. The economic and social needs of co-basin states must be considered.
77. See art. V Helsinki Rules. This article provides a non-exhaustive list of relevant
factors. These guidelines are meant to be flexible and each factor is weighed
against the other factors. None are pre-eminent. They are as follows: the geo-
graphy of the basin, in particular the extent of drainage in each basin state; the
hydrology of the basin; the climate affecting the basin; past utilization and
existing utilization of the basin waters; economic and social needs of each basin
state; comparative costs of alternatives for satisfying these social and economic
needs; availability of other resources; avoidance of unnecessary waste in the
utilization of the basin waters; compensation to one or more of the co-basin
states as a means of adjustment of conflicts of uses and the degree to which the
needs of a basin state may be satisfied without causing substantial injury to a
co-basin state.
78. See commentary to art. IV, at p. 487.
79. Ibid. A conclusion will be reached on the basis of an evaluation of all the
factors taken together.
80. Arts. VI-VIII.
81. Arts. IX-XI.
126 s. Williams
The sole concern addressed is that of detrimental change that

renders the waters less usable or otherwise is harmful. The types of
pollution envisaged are mainly sewage and industrial waste pollu-
tion. 82 The article refers to "human conduct". This is intended to
limit Article IX to actions by humans and not to cover pollution
from natural occurrences. 83 "Human conduct" would of course
cover not only positive acts but also omissions to act where there is
a duty to do so.
Article X provides:
(1) Consistent with the princi~le of equitable utilization of the
waters of an international drainage basin, a State
(a)must prevent any new form of water pollution or any in-
crease in the degree of existing water pollution in an inter-
national drainage basin which would cause substantial
injury in the territory of a co-basin State, and
(b)should take all reasonable measures to abate existing
water pollution in an international drainage basin to such
an extent that no substantial damage is caused in the
territory of a co-basin State.
(2) The rule stated in paragraph I of this Article applies to water
pollution originating:
(a)within a territory of the State, or
(b)outside the territory of the State, if it is caused by the
State's conduct.
This article is reflective of the general limitation placed by inter-
national law 'upon state action that would cause injury in another
state's territory. It demonstrates what was stated in the Corfu
Channel case 84 mentioned earlier. Further, the Secretary-General
of the United Nations has said that there "has been general recogni-
tion of the view that a State must not permit the use of its territory
for purposes injurious to the interest of other states in a manner
contrary to international law. "85 This reflects the general principle
of law contained in the maxim sic utere tuo ut alienum non laedas
(one must not use his own so as to injure another). This principle
can be seen to run through a number of state-to-state relationships.
For example in the Lac Lanoux86 arbitration between France and
Spain the principle was favourably referred to. In the Trail
Smelter 87 case the tribunal used this principle and even though this
was an air pollution case it is still useful by way of analogy. In the
82. See the commentary to art. IX at p. 495.

83. Ibid., at p. 496. The following example is given in the commentary: X, a cattle
farmer in state A causes a detrimental change in the composition and quality of
the waters of an international drainage basin. This is pollution under article
IX. On the other hand, if underground percolation of water in state A causes
minerals in their natural state to be washed into the waters of an international
drainage basin causing a detrimental change in the composition and quality of
the water this is not within the meaning of pollution under article IX.
85. Survey of International Law 34 (U.N. Doc. A/eN. 4/1 Rev. 1, 1949).
86. Supra, footnote 29.
Italian case of Societe Energie Electrique v. Compagnia Imprese

Electrique Liguri88 the Court of Cassation stated:
If this [state], in the exercise of its sovereign rights is in a position to
establish any regime that it deems most appropriate over the water
course, it cannot escape the international duty ... to avoid that, as a
consequence of such a regime, other (co-riparian) states are deprived of
the possibility of utilizing the watercourse for their own national needs.
State practice here can also be identified through various bilateral
treaties which incorporate provisions dealing with responsibility for
pollution of internationally shared waters. 89
There is in existence a community of interests in the international
drainage basin situation which means that one basin state may not
use the water of that basin in a manner that denies an equitable
sharing. Such a use would conflict with the community of interests
of all basin states. 9 0
Article X does not prohibit "pollution" per see Rather, it postul-
ates that where the effect of such pollution is not consistent with
the concept of equitable utilization of the drainage basin and "sub-
stantial injury" is caused in the territory of another state, then the
state responsible for the same is under a duty under Article XI to
cease the wrongful conduct and compensate the injured co-basin
state. 91 Not every injury will be classified as "substantial". The
International Law Association is of the view that an injury will be
substantial if "it materially interferes with or prevents a reasonable
use of water". 92 It is important to note that Article X provides for
water pollution originating within the territory of the state, or out-
side the territory of the state, if it is caused by the state's conduct.
It is, therefore, the conduct of the state resulting in responsibility
that is important, not the situs of the conduct. 93
As discussed earlier 94 the usual manner of reparation for a
physical injury is monetary compensation and its measure will
88. 64 Foro Italiano 1, 1036, (1939), 9 Ann. Dig. 120.

89. Of particular note is the Treaty Between the United States and Canada on
Boundary Waters, 1909, supra, footnote 54, art. 4, which is discussed in detail
by Mr. P. Rowcliffe in his paper for this conference. See also the Treaty on the
Moselle between France, Germany and Luxembourg, German Fed. Rep.
Bundesgesetzblatt, 1956, II, p. 1838, art. 55; the Treaty between Belgium and
Great Britain 1934, (1938) 190 L.N.T.S. 103; the Convention between Baden-
Wiirttemberg, Bavaria, Austria and Switzerland concerning the Protection
of the Waters of Lake Constance, 1960; the Convention between France and
Switzerland concerning the Protection of the waters of Lake Geneva against
Pollution, 1962.
90. See the commentary to art. X, at p. 499.
91. It is well established that where there is a violation of a rule of international
law, there is a resulting obligation to make reparation: Ch~rzow Factory
(Indemnity) case, supra, footnote 36. Note that under art. 36(2)(d) of the Statute
of the International Court of Justice, supra, footnote 48, the Court has juris-
diction to determine ''the nature or extent of the reparation to be made for the
breach of an international obligation".
92. See the commentary to art. X, at p. 500.
93. Ibid.
94. See supra, section A.2. on state responsibility.
128 s. Williams
usually extend at least to an amount for the actualloss. 95 There is a

controversy as to whether the measure of such damages should
include any consequential damages for loss of future business
profits. 96 It is suggested that if such can be proved, it would seem
appropriate. Likewise, the award should contain a sum which
represents the interest on the loss, either from the injury to the
payment of the amount or other period that the Tribunal deems
appropriate. 97
Injunctive relief may be granted. 98 The payment of pecuniary
damages may not be appropriate in isolation. If the offending state
were to persist in the pollution of the basin, the payment of
periodic damages awarded by a Tribunal would have the same
consequence as a servitude on the co-basin states' territories. 99
(b) A i, Pollution
From the basic proposition deduced from the Trail Smelter, 100
Corfu Channell 01 and Lac Lanoux l02 cases, that a state is prohibit-
ed by customary international law from using its territory without
taking into consideration the legitimate interests and rights of other
states, the question follows whether these same decisions provide us
with the foundation for a prohibition of transboundary air pollu-
tion. l03 To some, these cases represent the jurisprudential backing
for the other documents evidencing a rule of customary inter-
national law.
It is primarily the increased number of resolutions and declara-
tions of international organizations, that although technically non-
binding in and of themselves, serve as the guideline as to the current
views of states. When this is coupled with actual state practice new
rules of customary international law will endure. After all, at the
end of the day, it is what states do that produces the rule - not
simply what they say!
95. See Chorzow Factory (Indemnity) case, Supra, footnote 36, pp. 31, 46-48.
Also see the commentary to art. XI. Note, Whiteman, Damages in Inter-
national Law (1937-43); Oppenheim, International Law, vol. 1, (1955, 8th ed.,
Lauterpacht), pp. 352-54; Eagleton, Measures of Damages in International
Law (1929), 39 Yale L.J. 52; Grotius, De jure belli ac pacis (Carnegie Endow-
ment for International Peace translation of 1646 ed., (1925) vol. 11, Ch. XVII,
Sec. 12, p. 434.
96. See commentary, ibid.
97. Ibid.
98. See supra, section A.2. on state responsibility. See Diversion of Water from
River Meuse (1937) P.C.I.J., Ser. AlB., No. 70, at pp. 4, 73, 76; Trail Smelter,
supra, footnote 13. The International Court of Justice and its predecessor, the
Permanent Court of International Justice have issued orders in the way of tem-
porary injunctions. The International Court has specific power under art. 41 of
its Statute. See Anglo-Iranian Oil Co. case, [1951] 1 C.J.R. 89, at pp. 93-94,
95; The Electricity Company of Sofia and Bulgaria case (1939), P.C.I.J. Series
AlB, No. 79, at pp. 194, 199; Belgian-Chinese case (1927), P.C.I.J., Series A,
No.8, at pp. 6, 7-8.
99. See commentary on art. XI, at p. 505.
103. Bouchez, op cit., footnote 60, p. 54.
The action through international organizations such as the

W.H.O., the F.A.O., U.N.E.S.C.O., I.L.O., U.N.E.P., to name
but a few, and non-governmental organizations such as the Inter-
national Law Association and the International Council on
Environmental Law should be referred to. Time and space do not
permit any close analysis of the work undertaken by these institu-
tions, but it should be stressed that they are likely to be of great
importance in the future development of customary and conven-
tional rules of international law. U.N.E.P. (the United Nations
Environment Program), in particular, which was founded by the
General Assembly of the United Nations 104 after the Stockholm
Conference in 1972 105 has attempted to refine the recommenda-
tions made at that conference and promote, inter alia, environ-
mental assessment, information exchange, environmental manage-
ment, strategy and implementation of the Stockholm Declaration
itself. In 1981 a Senior Level Meeting was held by U.N.E.P. in
Montevideo, Uruguay, and one of the mandates of that meeting
was to establish a framework and methods for the periodic review
of environmentallaw. 106 The Governing Council of U.N.E.P. has
authorized the Executive Director to convene in 1983/1984 three
meetings of government experts to consider guidelines and prin-
ciples on marine pollution from land-based sources, the transport,
handling and disposal of toxic wastes and the exchange of informa-
tion relating to trade in and use of potentially harmful chemicals,
in particular pesticides. 107
The United Nations Conference on the Human Environment,
held at Stockholm in 1972, marked a watershed in the development
of international environmental law. It produced the Declaration on
the Human Environment}08 This declaration, and in particular
principles 21 and 22, has laid the groundwork for the duty of states.
Principle 21 states:
States have, in accordance with the Charter of the United Nations and
104. V.N.G.A. Res. 2997 (XXVII) of December 15th, 1972.

105. V.N. Doc. A/Conf. 48/14/Rev. 1, June 16th, 1972.
106. See the Report produced by the Senior Level Meeting, Doc. VNEP/IGGC
lOIS Add. 2 and Corr. 1 and Corr 2. This report contains three chapters. The
first is a declaration by the senior government officials in their capacities as
experts on environmental law. It places emphasis on positive development
since the Stockholm Conference in 1972. It outlines environmental law
priorities for the decade. The second contains a detailed programme for the
development and periodic review of environmental law. Main issues include
marine pollution from land-based sources, protection of the ozone layer and
handling, transport and disposal of toxic wastes. The remainder of Chapter 2
deals with implementation, review and follow-up on ,environmental law.
Chapter 3 contains the account of the proceedings of the meeting itself.
V.N .E.P. has also been concerned with liability and compensation in its study
on the legal aspects of offshore mining and drilling carried out within the limits
of national jurisdictions. It is also presently working on a report on a global
framework convention for the protection of the ozone layer. See also the
decision of the Governing Council of V.N .E.P. on the protection of the ozone
layer: VNEP/GC.10/14, p. 96 of May 31st, 1982. See supra, footnote 46 for
the role of V.N.E.P. in the protection and development of the Marine
Environment in the Wider Caribbean Region.
107. VNEP/GC. 10/14/p. 100.
130 s. Williams
the principles of international law, the sovereign right to exploit their
own environmental policies, and the responsibility to ensure that activit-
ies within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction.
This principle has been endorsed by a number of countries and it
has been contended that it constitutes customary international
law.109 Its principles have been reflected in article 30 of the Charter
of Economic Rights and Duties of States. 110 They have also been
referred to in other regional international agreements and recom-
mendations 111 and are reflected in the 1982 Law of the Sea
Treaty.112 It was argued by Australia and New Zealand in the
Nuclear Tests case l13 that the Declaration reflected the attitude of
the international community.
It has been realized by the General Assembly of the United
Nations that crucial importance is attached to the promotion and
development of cooperation aimed at protecting and safeguarding
the balance and quality of nature. 114 In a recent resolution 115 the
General Assembly adopted the World Charter for Nature.t 16 This
Charter reinforces the concept of conservation of all areas of the
earth and special protection to unique areas and samples of the
different ecosystems and habitats of rare and endangered species. 117
It stresses that discharge of pollutants into natural systems should
be avoided,118 but where this is not possible, such pollutants shall
be treated at source. The states that voted in favour would appear
to have agreed to the task of conserving nature and the protection
of the environment by implementing the applicable international
legal provisions. This would appear in the context of transboundary
pollution to posit the view that states must ensure that activities
located within other jurisdictions do not damage natural systems
within their own territory, within other states or in areas beyond
national jurisdiction. 119 This resolution reinforces the duty on
states to strive for the objectives and requirements set out in the
Charter on Nature. In the mind of this writer the Charter and the
resolution are policy goals for the future. They may have the
cumulative effect with the other documents and cases of germina-
ting at some stage a rule of customary international law.
This 1972 Declaration, although it is couched in vague language
109. Handl, op cit., footnote 62, p. 67; van Lier, op cit., footnote 2, p. 97.
110. AIRes. 3281 (XXIX) Dec. 12th, 1974. See also Res. 2995 (XXVII) January
19th, 1973.
111. E.g., O.E.C.D. Recommendation on Principles Concerning Transfrontier
Pollution Doc. C (74) 224; ECE Convention on Long Range Transboundary
Pollution, U.N. Doc. ECE/GLM. 1 R. 1 of Oct. 22nd, 1979.
113. [1974] I.C.J .R. 253.
114. UNGA Res. 35/7 of November 5th, 1980 and Draft World Charter for Nature
annexed to that Resolution (1981), 20 Int. L. Mat. 462; UNGA Res. 3717 of
November 9th 1982 (1983), 22 Int. L. Mat. 455.
115. Res. 37/7, ibid. This resolution was adopted by a vote of 111 in favour of to 1
against (United States) with 18 abstentions.
118. Ibid., art. 12.
119. Ibid., art. 21(d).
that is formed in general terms and does not refer to "pollution" per
se, does reflect a trend that was demonstrated in Trail Smelter, 120
Corfu Channel 121 and Lac Lanoux. 122
It is doubtful, in the mind of this writer, that the 1972 Declara-
tion can be said to have crystallized into a rule of customary inter-
national law. It does not refer to the specifics as to what type and
how much pollution is prohibited. It is therefore necessary to look
for assistance to general principles of law recognized by states. 123
International law makes use of concepts recognized by all or
most domestic systems. Even where specific laws differ from coun-
try to country, the basic underlying principles are often alike. It is
submitted that at the present time one fundamental principle
underlies all international environmental law: that found in the
maxim sic utere tuo, ut non alienum laedas. 124 Other, equally
recognized general principles too are applicable: due diligence,
equity and solidarity} 2S
The principle of sic utere tuo, ut alienum non laedas is referred to
by some commentators as the principle of "good neighbourliness".
This principle is one whereby states are prohibited from allowing
their territory to be' used in a way prejudicial to the rights of
another state or states. 126 This principle can be said to have been
demonstrated in the Corfu 'Channel 127 case discussed earlier. It
also finds place in the United Nations Charter 128 where it is stated
that concerning non-self-governing territories states must base their
policies on the principle of good-neighbourliness. This principle
expresses the limitation on territorial sovereignty. It is clear that sic
utere is a general principle of law recognized as a source of inter-
national law} 29 One writer 130 even goes so far as to refer to it as
"the principle of the harmless use of territory". It was this principle
that underlay the principle enunciated in the Trail Smelter case, 131
and principle 21 in the Stockholm Declaration. 132 It is reflected in
article X of the Helsinki Rules on the uses of the Waters of Inter-
national Rivers}33
The problem that is posed is that since there is in the inter-
national documents on international environmental law no binding
prohibition on air pollution, the way in which to apply sic utere is
123. See art. 38(1) (c) of the Statute of the International Court of Justice, supra,
footnote 45.
124. Supra, p. 19.
125. See van Lier, op cit., footnote 2, p. 96.
126. See Oppenheim (ed., Lauterpacht) International Law, a Treatise (1955, 8th
ed.) 346; P. Dupuy, International Liability of States for Damage Caused by
Transfrontier Pollution, in O.E.C.D. Legal Aspects of Transfrontier Pollution
(1977), p. 349.
128. See art. 74.
129. Oppenheim, supra, footnote 126; Johnson, International Environmental Law
(1978), p. 9.
130. Dupuy, op cit., footnote 126, p. 349.
133. See supra, footnote 70.
132 s. Williams
not clear. What dangers to the environment of other states indicat-

ed in Principle 21 are to be avoided? Certainly, it cannot be said
that sic utere combined with Principle 21 outlaws without qualifica-
tion damage to the environment. If that were so surely the number
of disputes over environmental problems would be nil! 134 Trail
Smelter 135 applied itself only to cases of "serious consequences".
A similar approach can be found in the Helsinki Rules on the Use
of International Rivers 136 that were adopted by the International
Law Association in 1966. Again, such a document is not binding
per se especially so in this case as the International Law Association
is a non-governmental organization. However, it is indicative of
the views of leading jurists from many countries, that rules of
customary international law exist in that area of transboundary
pollution. Substantial damage is the keynote in articles IX and X
of the Helsinki Rules. 13 ? The Nordic Convention on the Protection
of the Environment 1976 138 refers to "serious consequence". The
question is what is the threshold? At what point is the pollution
"substantial" or of "serious consequence"? Some of these examples
are of course taken from international water pollution law, but
there is not any reason to suspect that air pollution would be
treated in a different manner.
It is a basic part of the principles of state responsibility that states
must be duly diligent to one another. States are obliged to employ
all the means possible at their disposal to avert injuries to aliens or
their states, which are breaches of international law, irrespective of
the material result. The protection of the foreign state's interest
that is required is that which international law lays down. As it
would appear that the type of damage that the various documents
call for is substantial or serious damage can it not be argued that
due diligence in the present context does not mean that states may
cause no damage whatsoever? In other words, there is no rule of
general international law that provides for liability for any pollu-
tion caused where a state has not been duly diligent. The pollution
must have been materially substantial. The concept of due
diligence would be more useful if specific standards of environment
quality were agreed upon by governments and the obligation of
states for the purpose of implementing those obligations laid down.
The principles of solidarity and equity are extremely relevant.
The principle of solidarity can be defined as the taking of other
states' interests into account. The use of this principle was demon-
strated in the Oder 139 case where the Permanent Court of Inter-
national Justice held it is the
134. Bouchez, op cit., footnote 60, p. 54.
136. See supra, footnote 70.
137. Ibid.
138. Supra, footnote 56. Note also a similar illustration in a draft by the Asian-
African Legal Consultative Committee in 1973, U.N. Doc. A/CN.4/274 (Vol.
II), 226. It is also present in a careful reading of the D.E.C.D. principles,
D.E.C.D. Council Doc. C(74) 224. See Handl, Balancing of Interests and
International Liability for the Pollution of International Watercourses:
Customary Principles of Law Revised (1975), 13 Can. Yr. Bk Int. L. 156, at
p.186.
139. Jurisdiction of the International Commission of the River Oder (1929),
P.C.I.J., Ser. A., No. 23, p. 29.
[C]ommunity of interest in a navigable river that becomes the basis of a

common legal right, the essential features of which are the perfect
equality of all riparian states in the use of the whole course of the river
This same concept was applied in the Lac Lanoux 14o arbitration
between France and Spain where the tribunal found that states are
obliged to allow or deny "reasonable margin for the interests of
other states".
Other examples of this principle can be found in the India-
Pakistan conflict over the waters of the Indus mediated by the
World Bank 141 and article IV of the Helsinki Rules 142 which stipul-
ates that basin states are each entitled to "a reasonable and equit-
able share in the beneficial use of the water of the international
drainage basin".
All of these illustrations show that states have equal rights and
that each must respect the rights of the other. These same illustra-
tions which indicate the emergence of general principles of law all
refer to fresh water. Nevertheless, the central themes of solidarity
and equitable user can be applied by analogy to air pollution on the
basis that air too is a common shared resource. 143 This position is a
controversial one. Some deny that applicability to air pollution, 144
in that there there are a huge number of unknown factors in air
pollution that impede any equal apportionment. However, it
would· seem that there is nothing to stop the extension from fresh
water to air pollution if the difficulties of the unknown are
surmounted. As with sic utere and due diligence, it would be
helpful to have some guidelines agreed upon by states.
3. Prevention
So far the discussion has centred around serious or substantial
injury being caused to another state. From the various cases looked
at it is clear that a duty to prevent before injury occurs is not envis-
aged explicitly. Nevertheless, it is not going too far to suggest that
if a state is justified in being free from serious damage according to
Trail Smelter,145 and if a state must not knowingly allow its terri-
tory to be used contrary to other states' rights, according to Corfu
Channel, 146 then states are obliged in international law to prevent
serious damage occurring from cross-border pollution. The
Helsinki Rules 147 provide in article X(i> for the prevention of any
new form of water pollution or any increase in the degree of exist-

141. See Ct. Fischer, La Banque Internationale pour la Reconstruction et Ie
Development et l'utilisation des eaux du bassin de l'Indus (1960), VI Ann.
Fran. de Droit Int. 669-84; Dupuy, op cit., footnote 126, p. 350.
143. A. Scott and B. Bramson, O.E.C.D., Problems in Transfrontier Pollution.
Record of a seminar on Economic and Legal Aspects of Transfrontier Pollu-
tion held at the O.E.C.D. Paris, August 1972, at pp. 299-313.
144. E. Klein, Unweltschutz in Volkerrechtlichen (1976), at pp. 232-33, referred to
in van Lier, op cit., footnote 2, at p. 114.
134 s. Williams
ing water pollution in an international drainage basin that would

cause substantial injury in the territory of a co-basin state. This is
consistent with the concept of equitable utilization. The documents
concerning air pollution do not refer to prevention per see
There is a large amount of international commitment towards
prevention to be found in international conventions dealing with,
for example, maritime pollution. 148 The new Law of the Sea
Treaty149 would be the most recent example. Likewise, The Nordic
Convention 150 is an example of a regional prevention obligation.
It appears that this is the direction that the law should take, preven-
tion of harm necessarily being better than reparation after the
damage has been done.
4. Notification
Lastly, is there a principle which requires a state to notify potential
victims of pollution? There is certainly no treaty provision
concerning air pollution, although there is in maritime pollution. 151
The new Law of the Sea Treaty152 provides such an obligation as do
a number of bilateral and regional treaties. 153
State practice, particularly in Europe,154 would indicate that
there is exchange of detailed documentation on such matters. This
practice seems to be accompanied by the requisite opinio juris.
Certainly, among states who practice such notification and feel it
obligatory, a Regional rule of customary law has emerged here.
There are several recommendations and resolutions that may
evidence a general rule of customary international law here. For
example the 33 recommendations of the Action Plan for the
Human Environment,155 and the United Nations General Assembly
Resolutions of December 15th, 1972 156 on cooperation in the field
of environment encourage exchanges of information. The Charter
of Economic Rights and Duties of States 157 provides for a system
of information and prior consultations concerning the exploration
of natural resources. The ECE Convention 158 stipulates that states
parties shall exchange information, consult and develop strategies
to combat air pollutants discharge. The O.E.C.D. in its recommen-
dations on principles concerning transboundary pollution 159 has
recommended that before the initiation of work that may cause a

151. Convention on the Prevention of Marine Pollution by Dumping, supra, foot-
note 40; Convention for the Prevention of Pollution from ships, supra, foot-
note 40.
153. van Lier, op cit., footnote 2, at p. 119.
154. van Lier, ibid.
155. Report of the U.N. Conference on the Human Environment, A/Conf. 48/14/
Rev. 1, Stockholm, June 5-16, 1972, p. 28. There was no inclusion of such an
obligation in the Stockholm Declaration itself.
156. UNGA RES 2995 (XXVII). See also UNGA RES 3129 (XXVIII).
157. A/Res. 3281 (XXIX) of December 12th, 1974.
159. Doc. C (74) 224.
risk of transboundary pollution information should be provided to

the countries that may be protected.
At present, it is not clear whether a rule of custom of general
application has emerged. However, the trend demonstrated by the
various resolutions would indicate that perhaps this is in the offing.
As with the other areas discussed what is needed are guidelines for
states to follow as to when information must be given.
Conclusions
From the foregoing discussion a number of conclusions may be
drawn with regard to the present status of international law as it
relates to transboundary air and fresh water pollution. First, it is
evident that there is a consensus that a state is not allowed under
general customary international law to use or permit others to use
its territory without due consideration being given to the rights and
interests of other states. Secondly, and with particular reference to
international issues, the concept of the community of interests and
equitable user of all basin states is well established. Thirdly, even
though international law provides for the above it does not prohibit
all pollution but only cases of serious consequence. Fourthly,
although no mention of a duty to prevent pollution is explicit in any
of the documents concerned with air pollution, nevertheless, it can
be agreed by analogy to fresh and salt water pollution that such a
duty exists. Fifthly, there is a duty to notify dangers of pollution
to prospective victim states in maritime law and in bilateral and
regional treaties. There is sufficient state practice too in fresh water
cases to suggest that there is a rule of customary law also concern-
ing fresh water pollution. By analogy it is not too speculative to
suggest that in air pollution a duty is evolving. Lastly, there is a
duty to make reparation for pollution damage done that is of serious
consequence. This may be by way of pecuniary compensation,
formal apologies and statements of intent as to future conduct.
Tribunals may grant interim measures and injunctions.
It is clear to this writer having analysed the state of the law in this
area that it must certainly be termed "soft" as opposed to "hard"
law. It would appear to be difficult here, as in other areas of inter-
national law, to persuade over 150 states of the world community
to agree on measures to prevent and if not prevent, compensate for
pollution caused by them. Self-interest is still present, even in this
era of more pronounced independence. The result is that states that
feel that it is more vital for them not to be obligated by a formal
global convention, will refuse to sign or ratify any instrument that
the United Nations or UNEP puts before an international confer-
ence. They will seek to rely on the ambiguities and vagueness of the
present customary system as being more beneficial to their own
economic and/or political goals.
The solutions to this problem are not simple. To enable a major-
ity of states to become parties to a multilateral pollution treaty it
would be a necessity to reduce the wording of such a treaty to its
lowest common denominator. This has meant in the past, in other
subject contexts, that a sufficient level of abstraction may be
reached to render the agreement worthless, in practical terms, or at
136 s. Williams
least so vague that each state may read in its own interpretation.
On the other hand, being optimistic, an amount of horse-trading
between states of opposing camps could result in a workable instru-
ment. Such happened with the new Law of the Sea Treaty. Of
course, if the treaty is de lege ferenda and not de lega lata then it
will only bind the parties. It is only if it is also a codification of
customary international law that it will be evidence of that custom,
which will in turn bind all states.
The second solution is that instead of relying on a global instru-
ment, perhaps regional treaties would prove more appropriate.
States in regional groupings often have similar economic, geo-
graphic, historical and political ties. They may be more easily able
to agree on a workable framework and guidelines for prevention,
and liability and reparation. It is important in pollution cases to
look at the community of interests and the regional grouping would
be well able to do this. In other areas of international law, such as
economic matters, protection of human rights and prevention of
terrorism regional groups such as the E.E.C., the Council of
Europe, the O.A.S. and the Andean Pact have operated fairly
smoothly.
The third solution would be connected to the others mentioned.
Whether a multilateral or regional treaty was to be put into force it
would be necessary to ensure that there would be a tribunal that
would deal with problem cases that cannot be settled between the
parties. The lack of compulsory jurisdiction of the International
Court of Justice renders it not used by many states. The 1982 Law
of the Sea Treaty is instructive as it sets up a special tribunal to deal
with international maritime matters. A similar tribunal composed
of experts in international environmental law could be similarly
set up.
The fourth solution would be to set up by agreement an institu-
tion which would be given the power and legal personality to enter
into discussions with national and international agencies, indivi-
duals and industry; to grant or refuse permits for development in
states which touches on environmental concerns and to take other
related decisions. A permit system would involve some type of
registration procedure. The threat of refusal of an industrial
development permit or the withdrawal of such a permit would act
as an important deterrent to pollution.
Clearly, the formulation and acceptance of treaties, whether
bilateral, regional or unilateral clarifies the legal position of states.
We are not left to struggle with the variables of custom. The crisis
is definitely clear. If governments cannot cooperate and deal
adequately with the problem the environment will be overcome by
these new hazards caused by mankind. Some of the damage
already done is irreversible but something can be done for the
future if action is taken quickly. States may be unwilling to reduce
pollution emissions completely, as this would damage them serious-
ly from the economic standpoint. However, an accommodation
must be made. Specific studies must be looked at with the serious-
ness that is due to them. Governments must be convinced that the
only answer for international environmental survival is to agree to
be bound by an effective convention that sets out standards and
guidelines as to liability, type of damage, due diligence, notifica-

tion and compulsory adjudication. States must recognize their
obligation to cooperate for global environmental well-being. It is
only when such is done that there is a chance for workable protec-
tion. The situation must be remedied now. Tomorrow may be
too late.

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112 The University ofQueensland Law Journal Vol. 13, No.

Public International Law Governing

• Osgoode Hall Law School, York University, Toronto.

thousands of miles, acid precipitation falls in state B. Smoke and

A. Existing Fundamental Rules of International Law

1. Sovereignty and territorial integrity

3. S.A. Williams and A.L.C. de Mestral, Introduction to International Law,

Territorial sovereignty ... involves the exclusive right to display the

endeavoured to do is to develop certain standards and procedures

Session May 3 -July 23, 1976, Ch. 11 (1976), 11 Yr Bk Int. L. Comm. 1 at

of Justice. It follows that if in the area of transboundary pollution

22. van Lier, op cit., footnote 2, at p. 128.

Treaty 1982 is complemented by a number of regional conventions

B. The Legal Issues

c. The Emerging International Environmental Law

has become known as the most authoritative statement as to the

regional treaties dealing with maritime pollution. There is also the

2. Customary International Law

only that those states voting in favour have accepted it as such,

environmental law and can be said to have widespread acceptance

(a) Fresh Water Pollution

67. Supra, footnote 25, at p. 22.

Thus, it is recognized in the Helsinki Rules (which although not a

The sole concern addressed is that of detrimental change that

82. See the commentary to art. IX at p. 495.

Italian case of Societe Energie Electrique v. Compagnia Imprese

88. 64 Foro Italiano 1, 1036, (1939), 9 Ann. Dig. 120.

usually extend at least to an amount for the actualloss. 95 There is a

The action through international organizations such as the

104. V.N.G.A. Res. 2997 (XXVII) of December 15th, 1972.

not clear. What dangers to the environment of other states indicat-

[C]ommunity of interest in a navigable river that becomes the basis of a

140. Supra, footnote 29.

ing water pollution in an international drainage basin that would

148. Supra, footnote 40.

risk of transboundary pollution information should be provided to

guidelines as to liability, type of damage, due diligence, notifica-

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