Control inercial derivativo (E2)

The duty to prevent environmental harm requires the adoption of measures to avoid harm and reduce or eliminate the risk of harm. Many international agreements dictate or suggest the type or content of implementing laws and regulations deemed necessary or appropriate. Overall, states must make efforts to prevent environmental damage that is foreseeable through the normal operations of an activity or the use of a product and prevent or mit- igate accidental transboundary harm. Laws and regulations generally should apply to all activities and products within the state, whether of for- eign or domestic origin, to comply with international trade rules.

Treaties often contain a general obligation to apply the best available technology (BAT) or use the best practicable means. This requirement can be seen as deriving in part from the customary international obligation of “due diligence” to prevent environmental harm. Several international texts define best available technology or related terms. The Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, Mar. 17, 1992) defines “best available technology” in Annex I as

the latest stage of development of processes, facilities or methods of operation which indicate the practical suitability of a particular mea- sure for limiting discharges, emissions and waste.

The Convention for the Protection of the Marine Environment in the North-East Atlantic defines the similar term “best available techniques” as

the latest stage of development (state of the art) of processes, of facil- ities or of methods of operation which indicate the practical suitabil- ity of a particular measure for limiting discharges, emissions and waste. The same instrument defines the term “best environmental practice” as the application of the most appropriate combination of environmental control measures and strategies ranging from education and information to establishing a system of licensing.

To aid states in determining which are the best available technologies, techniques, or practices, some international agreements specify criteria to which special consideration shall be given. These include: comparable processes, technological advances and changes, economic feasibility, time limitations, the nature and volume of the discharges and effluents con- cerned, low and non-waste technology.

Public authorities may require activities within their jurisdiction to apply the best available technology or techniques and verify their application through authorization, permits, licenses and monitoring, or through other administrative or judicial enforcement.

a. Standard-Setting

International agreements sometimes call on states parties to establish stan- dards for products and processes that impact the environment. Standards are prescriptive norms that govern products or processes or set limits on the amount of pollutants or emissions produced. Four categories of stan- dards are common: process, product, emission, and quality standards.

In international environmental law, process standards specify design requirements or operating procedures applicable to fixed installations, such as factories, or designate permissible means and methods of activities like hunting or fishing. Sometimes, a particular process or technique is imposed on operations, such as the installation of purification or filtration systems in production facilities. International process standards include the require- ment that hazardous waste be incinerated (1991 Antarctic Environment Protocol), the ban on driftnet fishing (1989 Wellington Driftnet Convention), and operating procedures for biotechnology (EU Directives). Process standards often are used to regulate the operations of particu- larly hazardous activities or substances. In a far-reaching provision, the Montreal Protocol on the Ozone Layer calls on states parties to determine the feasibility of banning or restricting the import from non-state parties of products produced with, but not containing, ozone-depleting substances. The provision is unusual in regulating trade with non-parties and because process standards that apply to imported products raise questions about their compatibility with the international trading regime set up under GATT and the WTO.

Product standards, in contrast, are used for items that are created or manufactured for sale or distribution. Such standards may regulate:

• The physical or chemical composition of items, such as pharmaceu- ticals or detergents. Examples include regulations that control the sulphur content of fuels or list substances whose presence is forbid- den in certain products, for instance, mercury in pesticides.

• The technical performance of products, such as maximum levels of pollutant or noise emissions from motor vehicles or specifications of required product components, such as catalytic converters.

• The handling, presentation, and packaging of products, particularly those that are toxic. Packaging regulations may focus on waste min- imization and safety.

For economic reasons, product standards usually are adopted for an entire industry. In general, standards for new products are drafted to reflect the best available pollution control technology, in some cases requir- ing a percentage reduction of pollutants emitted in comparison with older sources. International product standards include the 1991 Amendments to MARPOL 73/78 requiring construction of new oil tankers with “double hulls,” the ban on trade in products containing ozone-depleting substances (1987 Montreal Protocol, Art. 4(3) as amended), and the requirement to provide unleaded fuel for motor vehicles (Sofia Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, Art. 4).

Emission standards are required by international agreements, such as the Protocols to the 1979 Convention on Long-Range Transboundary Air Pollution and the regional seas agreements. They call on states parties to specify the quantity or concentration of pollutants that can be emitted in discharges from a specific source. As a general rule, emission standards apply to fixed installations, such as factories or homes; mobile sources of pollution are more often regulated by product standards. Emission stan- dards establish obligations of result, leaving to the polluter the choice of means to conform to the norm. Often the environmental milieu of the dis- charge, e.g., groundwater, air, soil, is a variant factor. Emission standards may also change according to the number of polluters and the capacity of the sector to absorb pollutants. Different standards may be imposed in response to particular climatic conditions, for example persistent fog or inversion layers.

Emission standards are based on several assumptions: (1) a certain level of some contaminants will not produce any undesirable effect; (2) there is a finite capacity of each environment to accommodate substances with- out unacceptable consequences (the assimilative capacity); and (3) the assimilative capacity can be quantified, apportioned to each actor, and uti- lized. Each of these assumptions has been questioned, because all chemi- cals discharged into the environment are likely to lead to statistically

significant deterioration. Pollution occurs when the effects of the conta- mination can be measured. Emission standards most often reflect a polit- ical decision about the amount of pollution that is deemed acceptable.

Finally, quality standards fix the maximum allowable level of pollution in an environmental milieu or target during normal periods. A quality stan- dard may set the level of mercury permissible in rivers, the level of sulfur dioxide in the air, or noise level of airplanes in the proximity of residen- tial areas. Quality standards often vary according to the particular use made of the environmental resource. For example, different water quality stan- dards may be set for drinking water and for waters used for bathing or fish- ing. Quality standards also can vary in geographic scope, covering national or regional zones, or a particular resource, such as a river or lake, but each quality standard establishes base norms against which compliance or deviance are measured. The 1992 UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes calls on each party to define, where appropriate, water-quality objectives and to adopt water-quality criteria, setting forth guidelines for this purpose in Annex III. Some bilateral and regional agreements on freshwaters and air fore- see or mandate water-quality objectives, as well.

b. Restrictions and Prohibitions

If an activity, product, or process threatens environmental harm, strict mea- sures can be imposed in an effort to reduce or eliminate the harm. When the likelihood of harm is too great, the measure may call for a total prod- uct or process ban. The numbers and types of restrictions are almost unlim- ited, but certain ones are commonly used.

Environmental treaties often call for restricting or banning hazardous products, processes, or activities. They frequently are named in easily amended lists appended to the treaty. Such lists permit individualizing sit- uations and give the agreement some flexibility. Lists also avoid too much technical detail being included in the basic text. The use of lists is very common in combating pollution by dumping of wastes, discharge of haz- ardous substances during normal operations, and the protection of wild flora and fauna, especially endangered species.

Lists have been widely employed in protocols to environmental treaties, beginning with the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, Nov. 13, 1972). This Agreement has two lists, the first containing those substances absolutely prohibited (the black list) and the second list setting forth those substances that must be licensed for disposal (the grey list). The model of black and grey lists it established was subsequently employed in UNEP regional seas agreements for controlling land-based sources of pollution. Substances are classified and limits established on the basis of their toxicity, persistence, and bioaccumulation.

Recent work has sought to estimate the “critical loads” and “critical lev- els” of pollutant concentrations, as developed in the context of the 1979 Convention on Long-Range Transboundary Air Pollution. Critical load is defined in Art. 1(7) of its NOx Protocol as “a quantitative estimate of the exposure to one or more pollutants below which significant harmful effects on specified sensitive elements of the environment do not occur accord- ing to present knowledge.” Art. 1(8) of the Volatile Organic Compounds Protocol defines the related notion of critical level: “concentrations of pol- lutants in the atmosphere for a specified exposure time below which direct adverse effects on receptors, such as human beings, plants, ecosystems or materials do not occur according to present knowledge” whose discharge is prohibited or submitted to prior authorization.

Critics of the listing approach claim that its utility is limited, because it is inherently responsive to previously identified problems, is often based upon uncertain dose-response relationships, and is not specific or flexible enough to be truly protective. Several hundred new substances are intro- duced each year and may cause considerable harm before their environ- mental impacts are known, especially given the possibilities that pollutants are transformed after coming into contact with others upon release. Setting legal limits for the acceptable concentration of substances requires a judg- ment on the amount of damage that is acceptable as a consequence of human activities and how much the population is willing to pay for reduc- ing or lowering the risks of such damage.

The listing approach also raises practical problems in enforcement. A substance, such as mercury or cadmium, usually is discharged in the envi- ronment as a component of many different products rather than in its pure form. To implement the 1976 Convention related to the Protection of the Rhine against Pollution by Chemicals, for example, an investigation was conducted into the uses of most of the listed substances. It was esti- mated that the number of listed substances and materials had to be mul- tiplied by hundreds to take into account all compounds containing them. As a result of such problems, some conventions have moved to “reverse listing,” specifying in annexes those substances or activities that are per- mitted rather than those that are prohibited. The 1989 Basel Convention on Transboundary Movements of Hazardous Wastes adopted this approach, prohibiting all discharges except those that are explicitly autho- rized in individual cases. Its annexes list categories of wastes not only according to constituent substances and materials, but also according to their generating activities (e.g., clinical wastes, wastes from the production, formulation, and use of organic solvents) and hazardous characteristics (e.g., explosive, flammable, poisonous). The 1992 Convention on Protection of the Baltic Marine Environment also uses reverse listing. The precautionary approach suggests that the method of reverse listing is jus- tified, because it requires those seeking to act or to release a new substance or product to prove that it will cause no significant harm.

Treaties for the protection of biological diversity frequently require the imposition of limits on taking specimens of protected resources. General protective measures may restrict injury to and destruction or taking of some or all wild plants and animals. The revised African Convention on the Conservation of Nature and Natural Resources (Maputo, July 11, 2003), requires adoption of adequate legislation to regulate hunting, cap- turing, and fishing, and to prohibit certain means of hunting and fishing. Art. 9. Annexes specify measures to be taken regarding threatened or endangered species, which benefit from the most stringent protective legal measures. Hunting and collecting restrictions prohibit non-selective means of killing or capturing specimens of wildlife. The 1979 Bern Convention on the Conservation of European Wildlife and Natural Habitats similarly includes a special Appendix listing prohibited means of hunting mammals and birds.

Migratory species are subject to special protection by treaties, such as the 1979 Bonn Convention on the Conservation of Migratory Species of Wild Animals, which is aimed at all range states, i.e., those through which such species transit and in which they spend part of their lives. States par- ties to the Bonn Convention are obliged to ban or regulate the taking of these animals in cases where the conservation status of such animals—the sum of influences on their long-term distribution and abundance—is unfavorable.

Taking restrictions and prohibitions may apply to non-living as well as living resources, although such measures are imposed more frequently for flora and fauna. Principle 5 of the Stockholm Declaration states that “the non-renewable resources of the earth must be employed in such a way as to guard against the danger of their future exhaustion and to ensure that benefits from such employment are shared by all mankind.” International agreements regulate the taking of non-living resources in international commons areas (the deep-seabed, Antarctica, and outer space), and shared freshwater resources.

c. Land Use Regulation

Land use controls play a major role in environmental law for both urban and rural areas, through zoning, physical planning, and the creation of protected areas. The Convention on Biological Diversity, the Ramsar Wetlands Convention, the World Heritage Convention, regional seas pro- tocols on specially protected areas, and other global and regional nature protection agreements mandate land use regulation by states parties. In a broad sense the entire Antarctic Treaty system can be viewed as interna- tional regulation of this type.

Zoning helps equitably distribute activities harmful to the environment in order to limit potential damage and allows application of different legal rules from zone to zone for more effective protection. Physical planning

merges provisions for infrastructure and town and country planning in order to integrate conservation of the environment into social and eco- nomic development.

Land use planning and zoning regulations are often expressed in neg- ative terms, as prohibitions or restrictions on any undesirable utilization or change in utilization of the area, but planning also may encourage and promote land uses that are considered economically beneficial or com- patible with environmental objectives and land use management plans. Because of the evolution of environmental protection schemes and the numerous levels of government involved, land use regulations can become extremely complex.

Several international environmental instruments require states parties to set aside areas for specific management and the in situ conservation of biological diversity. Other special areas are mandated to protect monu- ments and sites of outstanding importance for geological, physiographi- cal, paleontological, or other scientific reasons, or for aesthetic purposes. “Buffer zones” surrounding protected areas help preserve them from harmful outside influences. Activities that do not have adverse effects on the protected area may be allowed to continue. “Interconnected corri- dors,” created through land use regulations or private contracts and other incentives, are necessary to allow genetic exchanges to occur between pro- tected areas and may be international in scope. Corridors can be linear, such as along river banks if natural vegetation is maintained, or may con- sist of strings or patches of natural vegetation from which animals (and plants) can move. Some corridors have been established regionally. See, e.g., Agreement on the Mesoamerican Biological Corridor (1996). Effective use of protected areas requires comprehensive conservation and management plans.

d. Licensing

Licenses represent a middle ground between unregulated practices and absolute prohibition. Most treaty-based licensing systems operate on the basis of a list or an inventory of activities necessitating a license, because they pose foreseeable risks to the environment. These lists may constitute part of the basic agreement or be contained in a supplementary legal instrument, as in the Annexes to the London Dumping Convention. Most agreements make no distinction between profit-making and non-profit- making enterprises, except that they often exempt military operations from their scope. Licenses are also required under many agreements regulating takings of shared natural resources like fish or freshwaters.

EU Directive 85/337/EEC plays a significant role in licensing proce- dures in Europe. Its Art. 6 provides that any demand for authorization of a public or private project that could have effect on the environment, as well as information received on this subject, should be made public. States

also should ensure that opportunity is given to concerned members of the public to express an opinion before the project is approved, estab- lishing the means to provide information and consultation. The particu- lar characteristics of the projects or sites concerned may determine what sector of the public is affected, control the location where the informa- tion can be consulted, and establish the particular methods of informa- tion (poster, newspapers, displays). States also may determine the manner according to which the public should be consulted, whether it is by writ- ten submission, public inquiry, or other, and fix the appropriate time lim- its for the various stages of the procedure. Once the inquiry is closed, the authority may grant a license with appropriate conditions or give partial or temporary authorization or refuse a license entirely. If the license is refused, there may be grounds for appeal to a judicial body for review of the decision. In most cases, there are both time limits and restrictions on who may take the appeal.

International requirements obliging states parties to license items in international trade are increasing, part of the strong trend toward trans- parency attending the movement and use of substances, products, and activities that may have a negative impact on the environment. The deliv- ery of export licenses and permits is often subject to the prior authorization of the importing state. Such consent is required by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes. The 1998 Convention on Prior Informed Consent, which emerged from ear-