From smelter fumes to silk road winds: exploring legal responses to transboundary air pollution over South Korea. (Introduction to II. Exploring Legal Solutions for Transboundary Air Pollution Over South Korea C. The International Joint Commission and the U.S.-Canada Air Quality Agreement: Accountability Through Delegation 2. The Institutional Role of the IJC, p. 565-595)

• Published date: 22 September 2012
• Author: Henry, Laura S.,Kim, Jasper,Lee, Dongho,Henry, Laura S.^Kim, Jasper^Lee, Dongho
• Date: 22 September 2012

TABLE OF CONTENTS
                INTRODUCTION
                I. SOUTH KOREA'S POLICIES ON TRANSBOUNDARY AIR POLLUTION
                 A. Regional Scientific Cooperation and Technical Assistance
                 for Mitigating Transboundary Air Pollution
                 B. Reasons for South Korea's Non-Legal Response
                 1. Economic Relations with China
                 2. Historical Distrust
                 3. Bureaucratic Competition and Institutional Barriers
                 4. The Developmental Gap
                II. EXPLORING LEGAL SOLUTIONS FOR TRANSBOUNDARY AIR
                 POLLUTION OVER SOUTH KOREA
                 A. Why Legalization
                 1. The Nature of Transboundary Air Pollution
                 2. Rules and Principles versus Policies
                 3. Legalizing Institutions: Obligation, Precision and
                 Delegation
                 B. The Trails Smelter Case: The Duty to Prevent
                 Transboundary Environmental Harm
                 C. The International Joint Commission and the U.S.-Canada
                 Air Quality Agreement: Accountability Through Delegation
                 1. The Agreement on Air Quality
                 2. The Institutional Role of the IJC
                 a. Scientific Investigation and Policy
                 Recommendations
                 b. Compliance and Public Accountability
                 D. The Convention for Long-Range Transboundary Air
                 Pollution: Institutionalization of Prevention
                 1. Unilateral Enforcement and the Pakootas Case
                 2. Using Private Law to Recover for Transboundary
                 Environmental Harm
                III. THE CONTEXT FOR TRANSBOUNDARY ENVIRONMENTAL DISPUTE
                 RESOLUTION 1N ASIA
                 A. Low Rate of Diffusion of Environmental Litigation
                 B. Adherence to Territorial Principle of Prescriptive and
                 Judicial Jurisdiction
                 C. Patterns of Northeast Asian Participation in Environmental
                 Treaties
                 1. Multilateral Environmental Treaties to which the
                 Three Countries are Members, Their Implementing
                 Procedures and Their Dispute Resolution Provisions
                 a. Implementing Mechanisms
                 b. Adversarial Dispute Resolution
                 2. Bilateral Agreements of the Three Countries
                 Concerning Shared Natural Resources
                 a. South Korea and Japan
                 b. South Korea and China
                 c. China and Japan
                 D. Addressing the Environment Through Industrial Policy
                 Low Carbon-Green Growth
                IV. THE PATH TOWARD LEGALIZATION
                 A. Relevant International Environmental Law Norms
                 1. The Duty to Prevent Transboundary Environmental
                 Harm and Principle 2 of the Rio Declaration
                 2. The Precautionary Principle
                 3. Sustainable Development
                 4. Common but Differentiated Responsibilities
                 ("CBDR ")
                 5. The Polluter Pays Principle
                 B. Transparency, Public Participation in Decision-making and
                 Access to Justice
                 C. Three Foci for Cooperation: Co-benefits, Sustainable
                 Energy Investment and Green Growth
                CONCLUSION
                

INTRODUCTION

As China's industrialization has entered full swing, transboundary pollution has swept eastward across the Manchurian Plain and the Yellow Sea into neighboring Northeast Asian countries. The desertification of Mongolia and Northwestern China due to global warming has fueled seasonal yellow dust storms descending on Korea in increased frequency and intensity in recent years, (1) acting as a vector for various kinds of air pollution. On top of sulfur dioxide and nitrous oxide that cause acid deposition which, in turn, destroys crops and forests, southeasterly winds carry fine particulate matter, aerosols, ozone, and heavy metals with more significant negative consequences on the health of humans and other species. (2) Soaring demand for energy in China (supplied mainly by coal-fired power plants) is casting deep uncertainty on regional air quality for the future, given the historically unprecedented scale and pace of deployment of plants in such a densely populated region. (3) It is widely assumed that coal will be China's principal source of energy for many decades to come, comprising as much as 70% of energy demand. (4) According to the IEA World Energy Outlook for 2011, China will account for more than half of the global share of coal use in 2020 with conservative assumptions. (5) However, as China rapidly becomes a major world market for internal combustion vehicles, increasing carbon monoxide emissions from vehicles are expected to contribute heavily to transboundary pollution in Asia and overtake power plants as the primary source of air pollution. (6)

Although Japan, South Korea, and China contribute to the air pollution problems of each other to some degree, South Korea is the most vulnerable to transboundary pollution from China. One expert estimated that 49% of the air pollution in South Korea can be attributed to China. (7)

Some reports estimate that as much as 50% of acid rain in South Korea can be attributed to transboundary pollution from China. (8) South Korea has recently attained significant unilateral improvements in air quality. (9) These achievements are threatened by China's continuing and rapid expansion of coal-fired electricity capacity (10) and its expected increased consumption of vehicles with internal combustion engines.

South Korea has neither strongly advocated interstate agreements nor resorted to international dispute resolution to prevent the transboundary atmospheric pollution confronting its population. Even though progress has been steadily made in the diplomatic sphere manifesting a clear intent to cope with the problem, (11) South Korea has carefully refrained from characterizing air pollution from China as a "dispute" or a "problem" as such. Rather, South Korea has approached the issue foremost as an occasion for inter-ministerial and scientific cooperation. As described below, South Korea provides funding and technical assistance to various regional and sub-regional organizations dedicated to measuring and mitigating transboundary air pollution.

South Korea's reluctance to use legal solutions for transboundary air pollution in this respect is entirely in concert diplomatically with its Northeast Asian neighbors, who have consistently eschewed binding agreements on matters of transborder environmental harm. 12 South Korea does participate with Japan and China in universal multilateral environmental framework conventions concerning dust storms arising from desertification (13) and long-range air pollution, (14) though it does so without committing to protocols with binding emissions limits. However, South Korea has concluded no bilateral or regional treaties with any of its immediate neighbors on the subject of transboundary air pollution. Regional or bilateral agreements acknowledging State duties to prevent transboundary harm on the environment are unknown to Northeast Asia. (15) In contrast to the multilateral regulatory approach of the European states embodied in the Convention on Long-Range Transboundary Air Pollution ("LRTAP Convention") (16) and the bilateral commitments in the U.S.-Canada Air Quality Agreement, (17) the Northeast Asian pattern of environmental cooperation exemplifies a trend against legalization. (18) This non-legal, non-confrontational approach has not been called into question locally in Northeast Asia by the NGO and regional scientific community, which has yet to play an assertive role in demanding transnational legal standards. (19)

Unfortunately, the current collective policy response does not match the magnitude of the health and environmental problems confronting the region arising from China's current energy consumption path. (20) While multilateral development aid from the Asian Development Bank ("ADB") and other institutions have increased awareness in China and resulted in the installation of flue gas desulfurization technology in most new power plants, (21) this technology does not affect emissions of heavy metals and other fine particulates from the plants. Further, these measures do not address impending accelerating mobile source issues at all. While China has made enormous progress in the legislation of environmental regulation, it currently lacks dependable enforcement that will prevent harm to its neighbors.

The purpose of this article is to review a variety of external legal approaches to transboundary air pollution and to assess the current state of environmental dispute resolution mechanisms and common environmental norms in Northeast Asia in order to stimulate legal solutions to the transboundary air pollution over South Korea. We believe an effective legal solution will ultimately entail the creation of an environmental governance institution for transboundary air pollution or the functional enhancement of a current institution with delegated authority to implement or further establish precisely defined rules on permissible levels of pollution, as demonstrated by the precedents discussed below. (22)

As the historic doctrinal font of the modern international law of transboundary environmental harm, the seminal 1941 Trail Smelter arbitration (23) ("Trail Smelter case") between the United States and Canada is the natural starting point for discussing relevant international law norms as well as the evolution of transnational environmental dispute resolution methods outside of Asia. The Trail Smelter case occurred at a transition point in international environmental law, (24) representing the prototypical example of interstate dispute settlement using an international arbitral tribunal and a classical ex-post procedure that allocates liability for transboundary harm based on State responsibility. (25)

In the 1930s, at the request of farmers in the U.S. state of Washington who asserted that the fumes from a copper mine in Trail, British Columbia, Canada had damaged their crops and forests, the U.S. government "espoused" the claims of its citizens against Canada in an arbitration administered by the International Joint Commission ("IJC"). The IJC was established under the 1909 Boundary Waters Treaty (26) between the United States and Great Britain, concerning Canada. Although it is obvious that a procedural solution like the Trail Smelter arbitration could never be applied for long-range transboundary air pollution of the sort at issue in South Korea, many features of this quintessentially legal solution to transboundary pollution are...