Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States.” Does that mean that the transboundary radiation has put Japan in violation of international law?
In a word, No.
Although the quoted language, from the 1992 Rio Declaration, sounds as if any transboundary damage would violate international law, almost no one interprets the prevention principle so strictly. To be an obligation under customary international law, the principle would have to reflect states’ customary practice, and states don’t prevent all transboundary pollution. Last year, in a case between Argentina and Uruguay, the International Court of Justice characterized the principle this way: “A State is . . . obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”
So the ICJ believes that a state is only required to prevent “significant” transboundary harm. That seems more likely to reflect state practice, although you might question whether states comply even with this lower standard, given the amount of transboundary pollution that still occurs. If the ICJ is right, Japan hasn’t failed to comply with the principle, since the radiation that has crossed the Atlantic is at low levels not expected to cause any significant harm. Even at higher levels, the transboundary radiation wouldn’t violate international law as long as Japan has done all it can to prevent it from occurring – a condition that the regulatory failures described in Rebecca’s post below may call into question. (Whether or not Japan has complied with the prevention principle, international law may impose liability for transboundary harm, but that’s an issue for another post.)
The obligation to prevent harm isn’t the only relevant international obligation, though. It’s also generally thought that states facing environmental emergencies with potential transboundary effects have an obligation to notify their neighbors and keep them informed. In this latter respect, Japan may be more open to criticism, for issuing general statements that do not provide other countries much detail about the problem. On Thursday, China urged Japan to be more forthcoming, a message that will likely grow louder as fears of radiation increase among the people of China and other nearby countries.
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| March 22, 2011
Friday, the first traces of the plume of radioactive gas from the damaged Japanese reactors were reported to reach California. The cornerstone of international environmental law is often said to be the “prevention principle,” which says that states have “the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the […]
Rebecca Bratspies | March 21, 2011
The twin natural disasters that struck Japan this month, earthquake and tsunami, left a trail of devastation in their path. Entire villages were lost. The death toll currently stands at more than 8,000 but is expected to rise much higher (more than 13,000 are missing). Even as survivors struggle for shelter, warmth and food, the natural […]
Robert Adler | March 18, 2011
A decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA’s Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or “CAFOs”. In National Pork Producers Council, et al. v. United States Environmental Protection […]
Rena Steinzor | March 17, 2011
Who’s the most powerful person in the Executive Branch these days, other than the President, the Vice President, their chiefs of staff, and—on any given day—the Secretaries of Defense or State? If odd Senate bedfellows Olympia Snowe (R-ME) and Tom Coburn (R-OK) have their way, the new, genuinely imperial regulatory czar will be one Dr. […]
Rena Steinzor | March 16, 2011
My bet is that EPA Administrator Lisa Jackson will do a little victory dance in her office before going home this evening. She’s earned it. After 20 years of false starts, EPA is issuing today the first proposed rule to control poisonous mercury emissions from power plants. They’re doing it despite a concerted blast of […]
Rena Steinzor | March 16, 2011
This morning a House Agriculture subcommittee will hold a hearing to “review the Chesapeake Bay TMDL, agricultural conservation practices, and their implications on national watersheds.” Observers should be prepared for a trip to an alternate world. The Chesapeake Bay has suffered for decades now because of nitrogen, phosphorous, and sediment pollution. Once-abundant fish, blue crab, […]
Frank Ackerman | March 15, 2011
Cross-posted from Real Climate Economics. True or false: Risks of a climate catastrophe can be ignored, even as temperatures rise? The economic impact of climate change is no greater than the increased cost of air conditioning in a warmer future? The ideal temperature for agriculture could be 17 degrees C above historical levels? All true, […]
Sidney A. Shapiro | March 11, 2011
This coming April 20 will mark the one-year anniversary of the first day of the BP Oil Spill – a three-month polluta-polluza that eventually became the largest accidental marine oil spill in the history of the world. That was the night that a long series of failures finally came to a head: failures aboard the Deepwater […]
Rena Steinzor | March 11, 2011
Not to be outdone by the Small Business Administration’s aptly named Office of Advocacy, the Chamber of Commerce has issued its own breathless report on how many jobs we could save if we did away with environmental, land use, and utility regulations. Crunching a bunch of dubious numbers, the SBA Office of Advocacy’s consultants, Nicole […]