The Baltic Sea Area and Long-Range Atmospheric Pollution –
How Regional Cooperation Fits Into the Larger Picture
Jutta Brunn6e*
Les dtveloppements rcents en droit environne-
mental international sont marquds par une prise
de conscience: les probl6mes environnementaux
sont interdtpendants et des solutions globales
sont ntcessaires pour y remtdier. Cependant, le
droit en cette mati~re se limite encore A une
approche sectorielle qui met l’accent sur les
sources ponctuelles de pollution, sur certains
types de polluants, sur une forme donnte de pro-
pagation, ou sur des zones gdographiques ddlimi-
tees. L’auteure pretend que ces approches secto-
rielles doivent faire appel i des strategies plus
globales. Elle identifie les divers palliers d’acti-
vit6 internationale qui sont pertinents A une solu-
tion aux probl~mes rgionaux et prsente A cette
fin l’exemple de la pollution atmosphtrique de ]a
mer Baltique. On est ici en prsence d’un pro-
blame touchant une mer rgionale. Cependant, ]a
pollution atmosphdrique provient de l’extrieur
de cette rdgion, en partie du moins. Par cons6-
quent, une initiative qui vise a combattre cette
pollution mais qui demeure purement rgionale
est voute a l’6chec. L’auteure donne un aperqu
gtnral de ‘6volution du droit international por-
tant sur la protection des mers. Elle passe ensuite
en revue le droit international de l’environnement
et la cooperation internationale dans la rgion de
]a mer Baltique et compare la situation qui y prl-
vaut aux solutions qui furent adoptes dans d’au-
tres r6gions aux prises avec un probl6me de pol-
lution maritime caus6 par l’atmosph~re. L’auteure
6value l’approche qui fut adopte pour la mer
Baltique A la lumi~re des conditions 6cono-
miques, dcologiques et politiques qui y rlgnent.
Elle affirme qu’on a tout A gagner A essayer
<
Baltique, cela signifie qu’il est possible d’invo-
quer a profit le droit cofitumier et les conventions
globales qui lient les Etats non baltes lors que la
raglementation rgionale est inefficace. Cepen-
dant les Etats baltes doivent chercher d’abord et
avant tout ii canaliser les efforts que ]a Commu-
nautd europ~enne et le Conseil 6conomique de
l’europe deploient dans le cadre de leurs mtca-
nismes de protection de l’environnement. Seule
une cooperation accrue avec ces organisations et
une utilisation des ressources et programmes dtjh
en place pourront assurer une protection efficace
de l’environnement de la mer Baltique.
Recent development of international environmen-
tal law is characterized by a growing recognition
of interdependence and of the need for compre-
hensive approaches to solving environmental
problems. At the same time, much of the existing
international environmental law, in focusing on
individual sources, pollutants, environmental
media, or geographical areas, proceeds in a see-
toral fashion. The author argues that sectoral
approaches must seek to draw upon more com-
prehensive strategies. Using the example of
atmospheric pollution of the Baltic Sea, she iden-
tifies the various levels of international activity
that are relevant to the solution of regional prob-
lems. Atmospheric pollution of the Baltic is a
problem affecting a regional sea. However, at
least in part, it originates outside the region.
Therefore, an exclusively regional approach to
combating pollution cannot be successful. The
author sketches the general development of the
law of marine environmental protection. She then
reviews international environmental law and
cooperation in the Baltic region and provides a
comparison with other regional approaches to
marine pollution through the atmosphere. The
author evaluates the Baltic approach in view of
the special economic, ecological and political
conditions in the region. She argues that much is
to be gained by attempting “to fit regional coop-
eration into the larger picture.” In the case of the
Baltic Sea area this means that some benefits can
be derived from customary law and global con-
ventions which bind non-Baltic states where
regional law cannot. First and foremost, however,
the Baltic states must seek to influence the efforts
made within the environmental protection
regimes of the European Community and the
Economic Commission
for Europe. Only
increased cooperation with these organizations
and utilisation of existing resources and programs
will lead to effective environmental protection for
the Baltic Sea.
* Of the Faculty of Law, McGill University.
McGill Law Journal 1991
Revue de droit de McGill
McGILL LAW JOURNAL
[Vol. 36
Synopsis
Introduction
1.
International Law and the Protection of the Environment
H. The Case of the Baltic Sea Area
A. The Ecological Situation
B. The Development of Environmental Cooperation in the Baltic
Region
1. The East-West Dimension
2.
Cooperation and the Baltic Environment
a. Cooperation within the Baltic Region
b. Other Regional and Global Cooperation
C. The Helsinki Convention
1. General Aspects
2. Vessel-Source Pollution, Dumping, Sea-Bed Activities and
3.
Spills
Pollution from Land-Based Sources Including Airborne
Pollution
4. Other Approaches to Airborne Pollution of the Marine
Environment
a. The Paris Convention
b. The North Sea Ministerial Conferences
c. The Barcelona Convention
d. U.N.E.P. and the Regional Seas Programme
e.
The Law of the Sea Convention
5. HELCOM’s Role in Enhancing Cooperation
6.
Rules and Cooperation Outside the Helsinki Convention and
Their Effect on Airborne Pollution of the Baltic Sea Area
a. Customary Law
b. The Law of the Sea Convention
c.
d. The 1979 E.C.E. Convention on Long-Range Transboun-
The Paris Convention
dary Air Pollution
The European Communities
The Nordic Convention
e.
f.
1991]
BALTIC SEA AREA
7.
Recent Action on Airborne Pollution Under the Helsinki
Convention
a. Monitoring and Data Collection
b. Recommendations Related to the Reduction of Ah’borne
Pollution
c. Revision of the Helsinki Convention
Conclusion
Introduction
International environmental law has come a long way since the days when
it had to borrow principles from other areas of international law or municipal
law.’ Not only has a set of customary rules developed from this heritage, the last
two decades have also witnessed an increase in international agreements and
innovative approaches.
The rapid development must largely be attributed to the increasing number
and complexity of international environmental problems and our growing
understanding of their implications. Beyond the customary rules, international
environmental law developed in a problem-oriented and, consequently, a sec-
toral manner. For a long time environmental problems were perceived as self-
contained and separable issues. International approaches, therefore, addressed
them as individual problems. International action was commonly geared to deal
with a given source of pollution or a particular pollutant, or focused on a certain
medium (air, rivers, sea) or region.
However, it has become evident that ecological, economic, and political
interdependence require integrated or coordinated approaches. The 1972 Stock-
holm Conference and resulting Declaration on the Human Environment paved
the way for new international thinking.2 The environmental crises of the past
five years as well as the Brundtland Report’ suggest that we may be at a turning
‘In the former case, international environmental law drew from notions of territorial sovereignty
and territorial integrity; in the latter case it drew, notably, from the maxim of sic utere tuo ut alie-
num non laedas; see M. Kloepfer, “Grenziiberschreitende Umweltbelastungen als Rechtsproblem”
(1984) 99 Deutsches Verwaltungsblatt 245 at 252 & 254.
2 UN Doe. A/Conf. 28/14, reprinted in (1972) 11 I.L.M. 1416 [hereinafter Declaration on the
3World Commission on Environment and Development (W.C.E.D.), Our Common Future
Human Environment].
(Oxford: Oxford University Press, 1987) [hereinafter Brundtland Report].
REVUE DE DROIT DE McGILL
[Vol. 36
point. In the Brundtland Report, for example, we find the following passage on
marine pollution:
The oceans are marked by a fundamental unity from which there is no escape.
Interconnected cycles of energy, climate, marine living resources and human
activities move through coastal waters, regional seas and the closed oceans. The
effects of urban, industrial and agricultural growth are contained within no exclu-
sive economic zone; they pass through currents of water and air from nation to
nation, and through complex food chains from species to species, distributing the
burdens of development, if not the benefits, to both rich and poor (emphasis
added).
4
If we take advantage of our opportunities, we may now be able to accel-
erate the shift in emphasis from sovereign to common interests which is begin-
ning to be noticeable.’ The knowledge and the ideas –
legal and other – have
been around for a while.’ Perhaps these seeds will finally find fertile ground. A
change is needed from a policy based on the sectoral management of resources
to what one writer has termed an “Earth Policy”: the sustainable management
of what is our global environment and what must be perceived and treated as
such.7
However, these aspects are not the focus of this article. The above com-
ments are merely intended to suggest the need to keep the overall picture in per-
spective and to ensure that any sectoral approach is compatible with it. This arti-
cle proposes to explore how international law, given the continuing reality of
decentralized environmental decision-making, addresses interdependence today.
It hopes to show that, notwithstanding the need for comprehensive approaches,
prudently coordinated sectoral protection measures will remain an indispensable
element of international environmental management.
An example of regional cooperation which uniquely illustrates this point is
environmental protection in the Baltic Sea area. The Convention on the Protec-
tion of the Marine Environment of the Baltic Sea Area of March 22, 19748 rep-
resents long-standing regional cooperation in protecting a marine medium. Rec-
ognizing ecological interdependence, the participating states chose a
comprehensive approach and adopted a convention covering all types and
sources of pollution. We will see further on, however, that ecological interde-
pendence is not limited to the regional scope, but that pollution originating out-
41bid. at 262.
5J. Brunnre, “‘Common Interest’ – Echoes from an Empty Shell? Some Thoughts on Common
Interest and International Environmental Law” (1989) 49 Zeitschrift fiur ausl~indisches ffentliches
Recht und V6lkerrecht 791 [hereinafter “Common Interest”].
6See B. Ward & R. Dubos, Only One Earth: The Care and Maintenance of a Small Planet (Lon-
7E.U. von Weizsdcker, Erdpolitik – 6kologische Realpolitik an der Schwelle zum Jahrhundert
don: A. Deutsch, 1972).
der Umwelt (Darmstadt: Wissenschaftliche Buchgesellschaft, 1989) at 203ff.
8Reprinted in (1974) 13 I.L.M. 544 [hereinafter Helsinki Convention].
1991]
BALTIC SEA AREA
side a region can have an impact on its marine environment.9 This creates the
need to coordinate Baltic protection efforts with efforts external to the region.
The Baltic region also illustrates economic interdependence, both among the
countries and between the countries and their marine environment. Additionally,
the Baltic region is a good example of cooperation between East and West and
bears witness to the impact of East-West relations on cooperation. Finally, from
a technical perspective, we find the range of “tools” provided by international
environmental law –
at work in the Baltic Sea area.
custom, treaty law, soft law, institutional cooperation –
I.
International Law and the Protection of the Marine Environment
The law of the sea has been shaped by the competing interests of coastal
states and sea-going nations. This competition can be traced back to the famous
dispute between John Selden and Hugo Grotius over the ideas of mare clausum
and mare liberum.’ The notion of the freedom of the high seas, as being open
to all states for use and exploitation, remains a fundamental principle underlying
the law of the sea. However, coastal state interests have been, quite literally,
gaining ground. Technological development and resulting economic interests
have led to a considerable expansion of coastal state jurisdiction into areas that
were formerly part of the high seas. Environmental protection interests have
recently reinforced the trend which can be described as a shift in emphasis from
freedom to cooperative management and conservation.”
Maritime jurisdiction can, in principle, flow only from flag state or coastal
state powers. This has had great impact on the law for the protection of the
marine environment. As regards the high seas, environmental protection rules
and their enforcement depend on the flag states’ powers over their vessels, air-
craft or marine structures, on the existing body of customary law, and on inter-
national agreements. Only the flag state is, usually, in a position to enforce any
of these rules. 2 Environmental protection in areas under coastal state jurisdic-
tion is derived from the coastal states’ laws as well as from custom and inter-
national agreements. The extent of a coastal state’s powers depends on whether
it exercises them in its internal waters, territorial waters, exclusive economic
zone, fishing zone, or over its continental shelf. 3
International law deals with the protection of the marine environment on
several levels: general, global, and regional. At the general level, rules are of a
9J.W. MacNeill, Environmental Management (Ottawa: Information Canada, 1971) at 10-16.
‘0See R. Soni, Control of Marine Pollution in International Law (Cape Town: Juta, 1985) at 19ff.
“S.A. Williams & A.L.C. de Mestral, An Introduction to International Law, 2d ed. (Toronto:
Butterworths, 1987) at 203.
12See M.N. Shaw, International Law, 2d ed. (Cambridge: Grotius Publications, 1986) at 317.
3For an overview see, supra, note 11 at 207ff.
McGILL LAW JOURNAL
[Vol. 36
rather basic nature and the result of balancing interests by interpreting the notion
of the freedom of the high seas. 4 While the disposal of wastes or pollution as
such may be a legitimate use of the high seas, it finds its limits in the interests
of other states in the ocean’s use.” In light of the present ecological condition
of the oceans, it can be argued that serious pollution is no longer covered by the
freedom of the high seas.’ 6 This limit is based on the res communis character of
the oceans. 7 A similar argument can be derived from the more recent concept
of “common heritage of mankind.”‘ 8 However, the question of whether there is
customary law protecting the environment of spaces beyond national jurisdic-
tion continues to be contentious. 9 Principle 21 of the Declaration on the Human
Environment supports this idea:
States have, in accordance with the Charter of the United Nations and the princi-
ples of international law, the sovereign right to exploit their own natural resources
pursuant to their own environmental policies, and the responsibility to ensure that
acts within their jurisdiction or control do not cause damage to the environment
of other states or of areas beyond the limits of national jurisdiction (emphasis
added).
Principle 21 also encapsulates the generally accepted rules of customary
international environmental law. These rules developed without reference to the
marine environment and are strongly linked to a territorial element.2″ Two basic
substantive rules can be identified. The first is the prohibition of transfrontier
pollution causing serious damage in another state’s territory.2′ The second is the
principle of equitable utilization of a resource shared by two or more states.22
State practice with respect to these concepts in a marine context is scarce, but
the concepts are considered to be applicable to marine pollution.’
14″General” is used here to describe rules not addressing specific marine pollution problems.
‘5Abfallbeseitigung atif Hoher See – Vilkerrecht und Recht der Bundesrepublik Deutschland
(Werkheft 31) by P. Ehlers & P. Kunig (Hamburg: Instituts fir Internationale Angelegenheiten der
Universitfit Hamburg, 1978) at 9.
16M. Tulokas, “The Baltic Sea and Pollution” (1981) 25 Scandinavian Stud. L. 205 at 210.
17Supra, note 10 at 135.
18See R. Wolfrum, “The Principle of the Common Heritage of Mankind” (1983) 43 Zeitschrift
ftir auslindisches 6ffentliches Recht und V6lkerrecht 312; A. Cassese, International Law in a
Divided World (Oxford: Clarendon Press, 1986) at 376-92.
19Art. 19(d) of the International Law Commission’s Draft Articles on State Responsibility point
in this direction; see YBILC 1980 1I (Part 2); supra, note 5 at 800ff; supra, note 10 at 69-72 &
142ff.
2 00n the development and scope of the existing customary rule, see J. Brunnde, Acid Rain and
International Law and Regulation (Dobbs Ferry, N.Y.: Transnational
Ozone Layer Depletion –
Publishers, 1988) at 83ff [hereinafter Acid Rain and Ozone Layer Depletion].
21See Trail Smelter Arbitration, United States v. Canada (1941), 3 R.I.A.A. 1905 at 1907 [here-
inafter Trail Smelter]; United Kingdom v. Albania (Corfi Channel), [1949] I.C.J. Rep. 4 at 22.
2 See Lac LanouxArbitration, France v. Spain (1957), 12 R.I.A.A. 281 at 315,24 Int’l L.R. 101.
23See A.E. Boyle, “Marine Pollution under the Law of the Sea Convention” (1985) 79 Am. J.
of Int’l L. 347 at 366; supra, note 10 at 140.
1991]
BALTIC SEA AREA
The general treaty law has been equally conservative in its approach to the
protection of the marine environment. The 1958 Geneva Conventions refer only
to selected aspects of environmental protection. Articles 24 and 25 of the Con-
vention on the High Seas address oil pollution and radio-active wastes.’ Article
5 of Convention on the Continental Shelf deals with the protection of living
resources from sea bed activities. 5
Rather than on a general level, the development of marine environmental
law took place through global and regional conventions and proceeded in a
problem-oriented way. The conventions address either a particular pollutant or
aim at the main sources of marine pollution: shipping, dumping, sea-bed activ-
ities, land-based activities, and atmospheric input.26 The United Nations Envi-
ronment Programme (U.N.E.P.) successfully sponsors the Regional Seas Pro-
gramme which now comprises ten comprehensive regional approaches to
marine environmental protection.’ Six of these are formally operating and two
are awaiting a sufficient number of ratifications.28
The 1982 United Nations Convention on the Law of the Sea,’ which has
not yet come into force, was intended to provide a comprehensive basis for the
law of marine environmental protection. Not only did it seek to codify custom-
ary rules, it also attempted to cover all sources and types of pollution.” The Law
of the Sea Convention imposes a basic obligation on states to protect and pre-
serve the marine environment, to take all measures necessary to prevent, reduce
and control marine pollution, and to ensure that activities under their jurisdic-
tion or control do not cause pollution damage beyond areas where they exercise
sovereign rights (article 194). Noteworthy is the Law of the Sea Convention’s
attempt to create a slightly different balance of flag state and coastal state inter-
ests. It provides the coastal states with more extensive rule-making and enforce-
2429 April 1958, 450 U.N.T.S. 82.
2129 April 1958, 499 U.N.T.S. 312.
26The wealth of agreements is beyond the scope of this article. Agreements and provisions rel-
evant to this article will be discussed infra. For information on the existing treaties on marine envi-
ronmental protection and for an exhaustive list see H. Hohmann, “Meeresumweltschutz als globale
und regionale Aufgabe” (1989) 37 Vereinte Nationen 53.
27U.N.E.P., “Achievements and Planned Development of U.N.E.P.’s Regional Seas Programme
and Comparable Programmes Sponsored by Other Bodies” U.N.E.P. Regional Seas Reports and
Studies No. 1 (1982) at 41-43; see also infra, notes 117, 118 and accompanying text.
28N. Gebremedhin, “Lessons from the U.N.E.P. Regional Seas Programme” in A.H. Westing,
ed., Comprehensive Regional Security for the Baltic- An Environmental Approach (Oslo: Inter-
national Peace Research Institute, 1989) 90 at 90.
inafter Law of the Sea Convention].
29U.N. Doe. A/Conf. 62/122 with Corr. 3 and Corr. 8; reprinted in (1982) 21 I.L.M. 1261 [here-
30B.A. Boczek, “Global and Regional Approaches to the Protection and Preservation of the
Marine Environment” (1984) 16 Case West. Reserve J. Int’l L. 39 at 66 [hereinafter “Global and
Regional Approaches”].
REVUE DE DROIT DE McGILL
[Vol. 36
ment powers.3′ Most importantly, however, the Law of the Sea Convention cre-
ates a duty to develop rules on all sources of marine pollution. Previously, states
only had the power, but not the duty, to regulate marine pollution.32 Consistent
with its aim to provide a framework for environmental protection, the Law of
the Sea Convention does not specify the standards to be adopted. In some cases,
however, it makes reference to accepted international rules and standards as a
minimum level of regulation.33
Returning to the example of the Baltic Sea area, this article will now exam-
global
ine the interplay between the different approaches to marine pollution –
and regional, general and sectoral, customary and treaty-based.
II. The Case of the Baltic Sea Area
A. The Ecological Situation
The Preamble of the Helsinki Convention captures the main features of the
problems facing the Baltic Sea area:
BEARING in mind the exceptional hydrographic and ecological characteristics of
the Baltic Sea Area and the sensitivity of its living resources to changes in the
environment;
NOTING the rapid development of human activities in the Baltic Sea Area, the
considerable population living within its catchment area and the highly urbanized
and industrialized state of the Contracting Parties as well as their intensive agri-
culture and forestry;
NOTING with deep concern the increasing pollution of the Baltic Sea Area, orig-
inating from many sources such as discharges through rivers, estuaries, outfalls
and pipelines, dumping and normal operations of vessels as well as through air-
borne pollutants; [emphasis added]
The Baltic Sea’s “exceptional hydrographic and ecological characteristics”
make it particularly vulnerable to pollution. Surrounded by the Baltic states of
Denmark, Finland, Germany, Poland, Sweden, and the Soviet Union, the Baltic
Sea’s only connection with the North Sea is a channel between Denmark and
Sweden. The channel’s southern portion, the Kattegatt, is considered part of the
Baltic Sea area.’ The Baltic Sea is very shallow, with an average depth of only
52 metres, and consists almost entirely of continental shelf in its 415,000 square
kilometre area.35 Its water is brackish because the salt water flowing in from the
31Boyle, supra, note 23 at 352.
32Ibid. at 351.
331bid. at 353ff; concerning atmospheric pollution see infra, notes 120-22 and accompanying
text.
Humbrot, 1988) 141.
34D. Kimminich et al., eds, Handwbrterbuch des Umweltschutzes, vol. 2 (Berlin: Duncker &
35T.D. Kaasik, “The Geography of the Baltic Sea Region” in Westing, ed., supra, note 28, 15
at 15; B.A. Boczek, “International Protection of the Baltic Sea Environment Against Pollution: A
1991]
BALTIC SEA AREA
North Sea is offset by fresh water inflow from a drainage area almost four times
as large as the Baltic Sea itself.36 The fresh water input results in a stratification
of the sea water into a surface layer of low salinity and a bottom layer of saltier,
heavier water.37 Since the bottom layer is virtually sealed off from the surface,
its oxygen content is naturally very low.38 This phenomenon is enhanced by the
fact that the turnover time for the water in the Baltic Sea is extremely long. An
exchange of approximately 90% of its water through the narrow entrance to the
North Sea is estimated to take 25 years.39 The long turnover time and the low
water temperatures of the bottom layer slow the process of natural decomposi-
tion of pollutants.4″
While the Baltic Sea was considered clean until the mid 1960s, population
density and increased industrial activity in its catchment area have contributed
to its present state as one of the most polluted marine environments in the
world.4 Seventy-one million people, their industries, agriculture, forestry, ship-
ping, and waste disposal result in a relentless input of enormous quantities of
pollutants.42 Eutrophication (the depletion of oxygen), accumulation of toxic
substances in living and non-living components of the ecosystem, oil spills and
other accidental discharges of hazardous or noxious substances are generally
considered to be the most serious problems.43
The main portion of pollutant input into the Baltic Sea –
about 80% –
stems from land-based sources.’ Due to the aforementioned low oxygen content
of the sea water, the high input of nutrients is of particular concern.45 Over the
past few decades the water’s oxygen content decreased to the point where, in
several basin areas, the bottom water was oxygen depleted.46 This is now being
Study in Marine Regionalism” (1978) 72 Amer. J. Int’l. L. 782 at 784 [hereinafter “International
Protection”].
36Kaasik, ibid. at 16.
37Nordic Council of Ministers, Europe’s Air – Europe’s Environment, Report to the Nordic
Council’s International Conference on Transboundary Air Pollution (Stockholm: Ministry of the
Environment, 1986) at 67.
38L. Zmudzinski, “Environmental Quality in the Baltic Region” in Westing, ed., supra, note 28,
39 Kaasik, supra, note 35 at 19.
40A. Westing, “Environmental Approaches to Regional Security” in Westing, ed., supra, note 28,
1 at 9.
4 1Supra, note 38 at 47.
42Supra, note 40, at 3; see also B.A. Boczek, “The Baltic Sea: A Study in Marine Regionalism”
43E. Leppikoski, “Man’s Impact on the Baltic Ecosystem” (1980) 9 AMBIO 174 at 175; B.
(1980) 23 German Y.B. of Int’l L. 196 at 205ff [hereinafter “Baltic Sea”].
46 at 47.
Hagerhall, “Saving the Baltic: A Race Against Mankind” (1990) 2 Our Planet 8.
prehensive picture of the Baltic Sea’s ecological situation.
44″International Protection,” supra, note 35 at 787, and supra, note 38 at 48ff for a more com-
45In order to illustrate atmospheric pollution problems in the Baltic Sea Area, this article focuses
46Nordic Council of Ministers, supra, note 37 at 66; O.E.C.D., The State of the Environment
on eutrophication problems and the input of nitrogen and phosphorous.
1985 (Paris: O.E.C.D., 1985) at 84; Lepplikoski, supra, note 43 at 174.
McGILL LAW JOURNAL
[Vol. 36
attributed to excess eutrophication resulting from the input of nutrients, notably
nitrogen and phosphorous, into the Baltic Sea.47 The depletion of oxygen even-
tually leads to the build-up of hydrogen sulphide, a poisonous gas which, dis-
solved in water, kills animals on the seabed and makes fish avoid the water. 8
The latter aspect is of considerable economic importance since, during eutroph-
ication processes, the economically valuable fish fauna appear to be replaced by
fish not traditionally used for food purposes.49 In the 1960s and 1970s the area
in which oxygen deficiency greatly altered bottom-living animal communities
was assumed to comprise 25% of the entire Baltic Sea.”
More than 500,000 tons of nitrogen and approximately 50,000 tons of
phosphorous yearly –
stemming mainly from municipal, industrial, and agri-
enter the Baltic Sea.5 Fifty-five percent of the nitrogen and
cultural sources –
sixty-five percent of the phosphorous are thought to enter the Baltic via rivers,
the remainder via the atmosphere. 2 This makes atmospheric transport a major
source of nutrient input into the Baltic Sea. 3 Pollutants enter the sea as fallout
in precipitation (wet deposition) or by way of sedimentation of aerosol particles
and direct absorption of gases and particles by the water surface (dry deposi-
tion).’ Swedish researchers believe that soil-blown dust and biogenic material
such as pollen and spores are the major sources of atmospheric phosphorous.
Atmospheric transport was found also to contribute to the input of heavy
metals and organic substances into the Baltic Sea. 6 Data on the deposition of
47Eutrophication becomes a concern when the number of plants, algae and other organisms rap-
idly increases and their subsequent decomposition results in a shortage of oxygen which, in turn,
kills other plants and animals; see Zmudzinski, supra, note 38 at 50; Nordic Council of Ministers,
ibid. at 65ff.
4SNordic Council of Ministers, ibid. at-68.
49Lepp~ikoski, supra, note 43 at 176.
50Ibid. at 177.
51Zmudzinski, supra, note 38 at 50. The National Swedish Environment Protection Board esti-
mated the total input in the 1980s to be 1,197,500 tons of nitrogen and 77,300 tons of phosphorous;
see Nordic Council of Ministers, supra, note 37 at 67. On industrial pollutant input in general see
L. Bruneau, “Pollution from Industries in the Drainage Area of the Baltic” (1980) 9 AMBIO 145.
52Zmudzinski, ibid.
53Studies commissioned by HELCOM point to an array of invariables and estimate that the 1986
input of nitrogen ranges between 270,000 and 630,000 tons and the wet deposition of phosphorous
is approximately 5,800 tons. See Baltic Marine Environment Protection Commission – Helsinki
Commission, Deposition of Airborne Pollutants to the Baltic Sea Area 1983-1985 and 1986, Baltic
Sea Environment Proceedings No. 32 (Helsinki 1989) 2ff [hereinafter HELCOM No. 32]. Esti-
mates of the National Swedish Environment Protection Board for the 1980s hover around 322,000
tons of nitrogen and 5,000 tons of phosphorous; see Nordic Council of Ministers, supra, note 37
at 67.
54H. Rodhe, R. Sdderlund & J. Ekstedt, “Deposition of Airborne Pollutants on the Baltic” (1980)
9 AMBIO 168 at 168.
55Ibid. at 170.
56 Ibid. at 171.
1991]
BALTIC SEA AREA
heavy metals are limited. But, for 1986 it was estimated that 35 tons of cad-
mium, 470 tons of copper, 1560 tons of lead, and 3400 tons of zinc were depos-
ited on the Baltic Sea. 7 P.C.B. and D.D.T. input was considered the most severe
pollution problem in the Baltic region.58 In the late 1960s the concentrations of
these substances in seals, birds of prey, and fish were up to ten times higher in
samples from the Baltic than in samples from sea areas west of Sweden. 9 Due
to the restriction in the use of these substances, however, concentrations had
begun to decrease by 1980.60
In considering the following discussion of efforts to cooperate in the pro-
tection of the Baltic Sea environment, it is important to stress two aspects of the
pollution scenario. Firstly, most pollutants –
from vessels via dumping or from
land-based sources –
originate within the region. Secondly, the pollutants
transported through the atmosphere originate, at least in part, in states other than
the littoral states.
B. The Development of Environmental Cooperation in the Baltic Region
1.
The East-West Dimension
Although the pollution problems in the Baltic Sea area had reached crisis
dimensions by the 1960s, it was not until 1974 that the Helsinki Convention was
adopted as a comprehensive cooperative effort at the regional level.
One must recall that for decades the Baltic region was at the crossroads of
two hostile economic, political and military systems. Four of the littoral states
(Denmark, Finland, the Federal Republic of Germany and Sweden) were dem-
ocratic and their economies were capitalist and market-oriented. The other three
(the German Democratic Republic, Poland and the Soviet Union) were socialist
states with centrally-planned economies.6 Economically, Denmark and the Fed-
eral Republic of Germany were tied into the European Communities. Finland
and Sweden were part of the European Free Trade Agreement (E.F.T.A.), while
the German Democratic Republic, Poland and the Soviet Union formed part of
the Council of Mutual Economic Assistance.62 Membership in competing mil-
itary alliances compounded the fragmentation within the region. Denmark and
the Federal Republic of Germany were part of the North Atlantic Treaty Orga-
57HELCOM, No. 32, supra, note 53 at 3, 7. The study points out that deposition levels of lead
decreased from an estimated 2300 tons in 1983-1985, a phenomenon attributed to the reduced use
of lead additives, see supra, at 7.
58Leppikoski, supra, note 43 at 178, 179.
59Ibid. at 179.
60Ibid. at 180.
61J.j Vesa, “Political Security in the Baltic Region” in Westing, ed., supra, note 28, 35 at 36.
621bid. at 37.
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nization (N.A.T.O.), the German Democratic Republic, Poland and the Soviet
Union belonged to the Warsaw Pact, while Finland and Sweden were neutral.63
Regional cooperation was thus hampered by post World War II tensions,
with the smouldering German question being a major obstacle to meaningful
environmental protection. In line with the western view, the Federal Republic
of Germany refused to enter into any agreement to which the German Demo-
cratic Republic was a party, fearing that this might imply recognition of the lat-
ter as a sovereign state.6′ Relations between the two Germanies entered a new
stage with Willy Brandt’s “Ostpolitik,” the diplomatic recognition of the Ger-
man Democratic Republic, and the “Grundlagenvertrag” (Treaty on the Basis of
Intra-German Relations) of 1972, intended to “normalize the intra-German rela-
tions.”’65
2.
Cooperation and the Baltic Environment
The end of the political deadlock coincided with the Stockholm Conferen-
ce’s unprecedented call for international efforts to protect the environment. Fin-
land initiated preparatory talks in 1973. By 1974 a group of government repre-
sentatives and legal and technical experts had prepared a draft convention on the
protection of the Baltic Sea environment.66 The Helsinki Convention was
adopted during a diplomatic conference hosted by Finland in March 1974 and
entered into force in 1980.67 It brought an end to a situation in which environ-
mental protection efforts, apart from long-standing scientific cooperation, had
been fragmented at best.68 They had been scattered over a multitude of agree-
ments which were merely bilateral, included only some of the littoral states, or
addressed only one aspect of the pollution problem facing the region. These ear-
lier agreements will be reviewed in the following pages.
a. Cooperation within the Baltic Region
Even fisheries issues had only been dealt with in various bilateral or sub-
regional agreements.69 They were not addressed in a more comprehensive fash-
ion until the 1973 (Gdansk) Convention on Fishing and the Conservation of the
Living Resources in the Baltic Sea and the Belts” which entered into force in
1974. This convention, which applies to all species of fish and other living
63Ibid.
64″Baltic Sea,” supra, note 42 at 213.
65December 21, 1972, reprinted in (1973) 12 I.L.M. 16.
66B. Johnson, “The Baltic Convention” (1976) 25 Int’l & Comp. L.Q. 1 at 5.
67Supra, note 61 at 40.
680n the history of scientific cooperation see K. Voigt, “The Baltic Sea –
Pollution Problems
and Natural Environmental Changes” (1983) 33 Impact of Science on Society 413 at 415, 419.
69See “Baltic Sea,” supra, note 42 at 210-13; “International Protection,” supra, note 35 at 799.
70Reprinted in (1973) 12 I.L.M. 1291 [hereinafter Gdansk Convention].
1991]
BALTIC SEA AREA
resources, commits the parties to close cooperation to preserve and increase the
living resources in the area. It establishes the International Baltic Fishery Com-
mission to coordinate its implementation. However, the Gdansk Convention
does not limit the parties’ jurisdiction over territorial seas or fishing zones.7′
Only a month prior to the adoption of the Helsinki Convention, in February
1974, Denmark, Finland, Norway, and Sweden signed the Nordic Convention
on the Protection of the Environment.72 The idea had originated in the Nordic
Council in 1972 and the Nordic Convention’s aim was the harmonization of the
Nordic countries’ environmental protection legislation. To facilitate environ-
mentally relevant administrative and judicial procedures, national boundaries
were eliminated. National authorities in the state of origin have to consider envi-
ronmental damage caused in the territory of another party and nationals of
another party are not to be discriminated against when they seek access to these
authorities or to the courts.73 The Nordic Convention is relevant to the protection
of the Baltic Sea environment in that it applies to the parties’ continental shelves
(Article XIII) and covers, according to Article I,
the discharge of solid or liquid waste, gas or any other substance into water-
courses, lakes or the sea and the use of land, the sea-bed, buildings or installations
in any other way which entails, or may entail an environmental nuisance by water
pollution or any other effect on water condition, sand drift, air pollution ….
b. Other Regional and Global Cooperation
Several global or regional treaties apply, in whole or in part, to the Baltic
Sea and its pollution problems.74 The 1954 International Convention for the
Prevention of the Pollution of the Sea by Oil established “prohibited zones” of
at least 50 miles from the coastlines where deliberate operational discharges by
tankers were prohibited.75 This Convention has been superseded by the Conven-
tion for the Prevention of Pollution from Ships76 of 1973 which entered into
force in 1983. It is wider in scope than its predecessor and covers all pollution
arising from the navigation or operation of ships. It also establishes “special
areas” in which rigorous rules prohibit all discharges of oil and a number of
other particularly dangerous substances. The Baltic Sea is one of the designated
“special areas.”77
71B. Broms, “Multilateral Agreements in the Baltic Region” in Westing, ed., supra, note 28, 62
7219 February 1974, reprinted in (1974) 13 I.L.M. 591 (the Convention entered into force in
at 62.
1976) [hereinafter Nordic Convention].
73See Acid Rain and Ozone Layer Depletion, supra, note 20 at 172-73.
74For an overview see Boczek, “Baltic Sea,” supra, note 42 at 211-12.
75(As amended) 12 May 1954, (1959) 327 U.N.T.S. 3, reprinted in (1972) 11 I.L.M. 267.
762 November 1973, reprinted in (1973) 12 I.L.M. 1319 (the Convention and its Annex I entered
into force in 1983; Annexes II and V in 1987 and 1989 respectively; Annexes III and IV are not
yet in force) [hereinafter MARPOL Convention]; see Hohmann, supra, note 26 at 58.
77Hohmann, ibid. at 56.
McGILL LAW JOURNAL
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The focus of early agreements on oil pollution is evident in a number of
other conventions which address only this type of pollution.7″ The attention paid
to oil pollution is also evidenced by the fact that, apart from radio-active waste
and pollution arising from sea-bed activities, oil pollution is the only kind of
pollution specifically mentioned in the 1958 Geneva Conventions.79
The pollution of the seas by dumping is covered in both a regional and a
global convention. The (Oslo) Convention for the Prevention of Marine Pollu-
tion by Dumping from Ships and Aircraft8 of February 15, 1972 applies to the
Northeast Atlantic, the Arctic and the Kattegatt while excluding the Baltic Sea
proper. The global (London) Convention on the Prevention of Dumping of
Wastes and Other Matte 81 of December 9, 1972 applies to the high seas and the
territorial waters of its parties. Both conventions adopt the same approach of
dividing substances into three lists. The disposal of substances listed in Annex
I (black list) is prohibited. The dumping of Annex II (grey list) substances
requires a permit from the relevant national authority. Substances listed in
Annex Im may be dumped under certain conditions with prior general permis-
sion.8″
Finally, the Convention for the Prevention of Marine Pollution from Land-
Based Sources83 of June 4, 1974 also uses lists to categorize discharges from
water courses, coastal establishments or outfalls, underwater sources and pipe-
lines. While applying to the parties’ internal waters, the Paris Convention, like
the Oslo Convention, does not cover the Baltic Sea itself, but only the Katte-
gattl
C. The Helsinki Convention
1.
General Aspects
The above account shows that, apart from the general rules of the Geneva
Conventions and the customary rules discussed earlier, only the international
781nternational Convention Relating to the Intervention on the High Seas in Cases of Oil Pol-
lution Casualties, 29 November 1969, 970 U.N.T.S. 212, reprinted in (1970) 9 I.L.M. 25; Inter-
national Convention for Civil Liability for Oil Pollution Damage, 29 November 1969, 973
U.N.T.S. 3, reprinted in (1970) 9 I.L.M. 45; International Convention on the Establishment of an
International Fund for Compensation of Oil Pollution Damage, 18 December 1971, reprinted in
(1972) 11 I.L.M. 284.
79See supra, notes 24 & 25 and accompanying text.
8015 February 1972, (1974) 932 U.N.T.S. 3, reprinted in (1972) 10 I.L.M. 262.
8129 December 1972, reprinted in (1972) 11 I.L.M. 1294 [hereinafter London Convention].
82 See Tulokas, supra, note 16 at 56.
834 June 1974, reprinted in (1974) 13 I.L.M. 352 [hereinafter Paris Convention].
84See “Baltic Sea,” supra, note 42 at 212; on the scope of the Paris Convention and its protocols
see infra, notes 103-104 and accompanying text.
1991]
BALTIC SEA AREA
conventions addressing oil pollution, vessel source pollution and pollution by
dumping were applicable to the Baltic Sea area prior to the Helsinki Convention.
The special conditions in this region and the absence of rules addressing the
foremost concern of pollution from land-based sources demanded cooperation
that focused on the special needs of the region. The Helsinki Convention draws
on the experience of the aforementioned agreements and adopts several features
of their regulatory approaches. Their existence is also acknowledged in Article
21 according to which the parties’ rights and obligations arising from earlier
conventions are not affected. The Helsinki Convention only takes precedence if
its provisions are more stringent. 5 It has frequently been hailed as the first com-
prehensive approach to marine pollution. However, as the following analysis
will show, the price for a broadened scope may have been narrowed substantive
provisions.
The Helsinki Convention’s geographical scope spans the entire Baltic
Straits and the Kattegatt up to a line running between Skagern and Gothenburg
(Article 1). The latter delimitation was chosen to match the “special area” des-
ignated under the MARPOL Convention.6
Article 4 outlines the extent of the Helsinki Convention’s applicability. It
covers the water body and sea-bed as well as their living resources and other
forms of life (article 4(1)). While the high seas are governed entirely by the Hel-
sinki Convention, its implementation in territorial waters is the exclusive
domain of the coastal states. 7 The Helsinki Convention does not apply to the
parties’ internal waters (article 4(3)), an aspect of some significance to the pre-
vention of pollution from land-based sources.8″ The Helsinki Convention’s
applicability is further limited by the exclusion of military vessels or aircraft
(article 4(4)).
Within its area of applicability the Helsinki Convention addresses all pos-
sible types of pollutant input. Article 3 sets out the parties’ fundamental obliga-
tion as one to “individually or jointly take all appropriate … measures … to abate
and prevent pollution and to protect and enhance the marine environment.”
They are also called upon to “not cause an increase in the pollution of the sea
areas outside the region.” A further general rule is contained in article 5 which
obligates the parties to counteract introduction of hazardous substances listed in
Annex I (D.D.T.s and P.C.B.s). s9
national waters of Sweden and Denmark.
S5 Tulokas, supra, note 16 at 215.
S6See Johnson, supra, note 66 at 5, who points out that the entrances to the Baltic Sea are the
S7Regarding the territorial seas currently claimed see B.A. Boczek, “The Baltic Region in its
88See infra, notes 99 & 180 and accompanying text.
89 0n the positive effect of this measure see Leppaikoski, supra, note 43 and accompanying text.
Historical Context” in Westing, ed., supra, note 28, 23 at 32.
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[Vol. 36
2.
Vessel-Source Pollution, Dumping, Sea-Bed Activities and Spills
The Helsinki Convention’s approach to individual sources of pollution cor-
responds to the previously discussed agreements in that the Helsinki Conven-
tion’s rather general provisions are complemented by a series of annexes. 90
These outline in greater detail the measures to be taken regarding individual
pollution sources and contain lists of hazardous and noxious substances. This
approach has proven beneficial since annexes are easier to change or up-date
than the Convention itself.9′
The Helsinki Convention’s most extensive provisions are devoted to pollt-
tion fi-om ships.92 This can be explained by the large number of agreements
existing prior to the Helsinki Convention and the fact that the MARPOL Con-
vention had been adopted only a few months before. In fact, most of the Hel-
sinki Convention’s provisions correspond to those applicable to special areas
under the MARPOL Convention.93 The significance of the adoption of MARPOL
rules on a regional basis lies in the fact that, among the parties, the rules of
Annexes III and IV of the MARPOL Convention are applicable although the
annexes have not yet entered into force.94 As a result, the Baltic Sea enjoys the
world’s most rigorous protection from vessel source pollution. The relevant pro-
vision is article 7 which commits the Baltic states to measures to protect the
Baltic Sea from pollution by “deliberate, negligent or accidental discharge of
oil, harmful substances other than oil, … sewage and garbage from ships …. 95
Details are set out at great length in Annex IV and amount to an almost com-
plete prohibition of oil and waste discharges, while the discharge of chemicals
is, depending on their level of danger, permitted to a limited extent.
Article 9 of the Helsinki Convention prohibits dumping from ships and air-
craft. Exceptions are made only in cases of emergency and regarding dredge
spoils, which may be discharged with special permission and under the condi-
tions set out in Annex V. This makes the Helsinki Convention’s rules more strin-
gent than those of the London Convention to which they otherwise correspond.
90No reservations may be made to the Helsinki Convention; supra, note 8 at art. 25.
911nfra, note 124 and accompanying text.
92For a good overview see Johnson, supra, note 66 at 9-11.
93Tulokas, supra, note 16 at 218.
94Hohmann, supra, note 26 at 57; it should be noted that this effect extended to all of MARPOL’s
annexes until they entered into force between 1983 and 1989; see supra, note 76; it should further
be noted that the rules in MARPOL’s Annex HI and IV currently apply to the ships of third states
within the littoral states’ territorial waters, see Tulokas, supra, note 16 at 219.
95Article 8 is specifically devoted to the abatement of harmful effects of pleasure craft activities;
supra, note 8.
96″Baltic Sea,” supra, note 42 at 217; Tulokas, supra, note 16 at 220-21.
1991)
BALTIC SEA AREA
Article 10 obligates the parties to take all appropriate measures to prevent
pollution resulting from the exploration of the sea-bed and its subsoil. However,
as one writer points out, these provisions are of limited practical value since the
few projects taking place in the Baltic Sea area are confined to the extraction
of sand or gravel.97
Article 11 and Annex VI of the Helsinki Convention further commit the
parties to intensive cooperation in the elimination and minimization of spills of
oil or other harmful substances.9″
3.
Pollution from Land-Based Sources Including Airborne Pollution
“Land-based pollution” is defined in the Helsinki Convention’s article 2(2)
and means pollution of the sea caused by “discharges from land reaching the sea
waterbome, airborne or directly from the coast, … ” (emphasis added). How-
ever, if the Helsinki Convention’s protection level regarding land-based pollu-
tion is already low, its provisions pertaining to airborne pollution are marginal.
The general obligation to counteract the introduction of Annex I substances
from land-based sources (article 5) applies to atmospheric pollution as well.
Article 6 and Annex II distinguish between land-based pollution in general, and
airborne pollution. The contracting parties are to take all appropriate measures
to control and strictly limit pollution by noxious substances listed in Annex II
(article 6(2)). Accordingly, significant quantities of such substances as mercury,
cadmium, lead, or radio-active materials may be introduced only with prior spe-
cial permit (article 6(3)). By contrast, article 6(8) only requires the parties to
“endeavour to use the best practicable means in order to minimize the airborne
pollution of the Baltic Sea Area by noxious substances.” In keeping with this
requirement, Annex II declares its list of noxious substances valid only for
waterborne introduction into the sea. Regarding airborne introduction, the
Annex merely states that the parties “shall also endeavour to use the best prac-
ticable means to prevent harmful substances and materials from being intro-
duced.” This phrase lowers the protection level from harmful substances that is
provided elsewhere in the Helsinki Convention. The relevant article 6(6) reads:
To control and minimize pollution of the Baltic Sea area by harmftil substances,
the Contracting Parties shall, in addition to the provisions of Article 5 …. aim at
attaining and applying the criteria enumerated in Annex 1I ….
Annex III regulates the prevention of pollution from land-based sources in
some detail but makes no further reference to airborne pollution. In light of the
fact that land-based pollution is the main source of pollutant input into the Bal-
97P. Ehlers, “Zehn Jahre Helsinki bereinkommen – Ein Bericht” (1984) 4 Natur und Recht 138
at 142.
9 For an overview see Johnson, supra, note 66 at 11-12.
McGILL LAW JOURNAL
[Vol. 36
tic Sea, the protection level accorded by the Helsinki Convention is dispropor-
tionately low. This is not only a result of the extremely general nature of the pro-
visions just reviewed. It must also be noted that considerable amounts of land-
based pollution stem from the parties’ internal waters which are excluded from
the Helsinki Convention’s applicability.99 At first glance this appears all the
more odd in view of the detailed rules adopted regarding vessel-source pollu-
tion. However, it had already been suggested that the Convention could draw
upon extensive practice in this regard and, therefore, operate in a relatively
uncontentious area. Also, when dealing with pollution from ships, one deals
with identifiable sources of pollution. By contrast, the realm of land-based pol-
lution, notably if transported through the atmosphere, had received little previ-
ous attention.” In part, this must be attributed to the diffuse nature of atmo-
spheric pollution and the difficulties in identifying its sources. Furthermore, the
regulation of land-based pollution and atmospheric pollution is particularly sen-
sitive to the parties’ sovereign interests. Atmospheric pollution generally orig-
inates well inside the territories of the respective countries.
At the time of the Helsinki Convention’s conclusion, the Baltic region and
other states were not addressing atmospheric pollution in a meaningful way.
Awareness of the long-range effects of air pollution was just beginning to grow,
mostly due to the Scandinavian concern about acidification problems.” As is
well known, the economic interests of the states concerned constituted a major
obstacle on the way from awareness to action. Curbing emissions was –
and
continues to be –
a costly undertaking and governments are reluctant to impose
such burdens on their economies. In the Baltic context the problem was com-
pounded by the fact that Eastern Europe contributed a major portion of the
atmospheric pollution but was –
unable to afford abatement
measures.’0
and remains –
4.
Other Approaches to Airborne Pollution of the Marine Environment
In light of these factors, the Helsinki Convention’s approach to atmospheric
pollution is not surprising and the mere fact that this source of pollution was
included at all is laudable. This assessment is confirmed upon looking at other
approaches to atmospheric pollution. All of the more detailed measures were
initiated relatively recently, whereas early arrangements were quite similar to
99Article 4(3) attempts to remedy this by calling upon the parties to ensure the purposes of the
Helsinki Convention are fulfilled in these waters; supra, note 8.
10On subsequent action see infra, under Section 4.
01See Acid Rain and Ozone Layer Depletion, supra, note 20 at 9 & 82.
0 2On air pollution in the U.S.S.R. and Eastern Europe see J. McCormick, Acid Earth – The
1
Global Threat of Acid Pollution (London: Earthscan, 1985) at 113ff; F. Painton, “Darkness at
Noon” TIME (9 April 1990) 50; M. Simons, “Rising Iron Curtain Exposes Haunting Veil of Pol-
luted Air” The New York Times (8 April 1990) 1.
1991]
BALTIC SEA AREA
the Helsinki Convention. This is true both in terms of their scope and their will-
ingness to address atmospheric pollution as a part of pollution from land-based
sources.
a. The Paris Convention
The Paris Convention calls upon the parties to “eliminate” pollution of the
marine environment from land-based sources by substances on its “black list,”
and to “limit strictly” pollution by substances on its “grey list.”1 3 Discharges
require prior approval by the appropriate national authority. In addition, the par-
ties are to endeavour to forestall any new pollution from land-based sources.
Atmospheric pollution was included in the original Convention only in the
definition of pollution from land-based sources. This situation will be remedied
by the Protocol Amending the Convention for the Prevention of Marine Pollu-
tionfi’om Land-Based Sources of March 26, 19 86.J4 With the Protocol, the par-
ties recognize that the Paris Convention does not contain provisions referring
to the prevention of pollution of the marine area through the atmosphere. It will
insert into the Paris Convention’s Article 3(c) a subsection “iv” which will read:
“by emissions into the atmosphere from land or from man-made structures.”
The Protocol will enter into force when signed by all parties to the Paris Con-
vention. It is open to other states as well, which would then also becomes parties
to the Paris Convention.
b. The North Sea Ministerial Conferences
Regional cooperation with respect to the North Sea environment has
recently focused on atmospheric pollution. Since the North Sea is covered by
the Paris Convention, there is no special approach to its pollution from land-
based sources. Cooperation is effected within the framework of ministerial con-
ferences. During the Second International Conference on the Protection of the
North Sea in 1987, the participants accepted the need to adopt specific measures
regarding the input of pollutants via the atmosphere. 5 At this year’s Third
International Conference, the states committed themselves to reducing the
atmospheric introduction of 17 substances by at least 50% by 1995 at the latest
or by 1999 depending on the substance.”
103See supra, note 83 and accompanying text.
1’Protocol reprinted in K.R. Simmonds, ed., New Directions in the Law of the Sea (New York:
Oceana Publications, 1988) at 29.
05Point XI, Ministerial Declaration of the Second International Conference on the Protection of
the North Sea, London, 24-25 November 1987; text provided by the Minister for Environment,
Conservation of Nature and Reactor Safety, Federal Republic of Germany.
Informationen des Bundesministersfiir Umwelt, Naturschutz und Reaktorsi-
16See Umwelt –
cherheit 3/90, 113.
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[Vol. 36
c. The Barcelona Convention
The most elaborate approach to atmospheric pollution to date has been
taken within the framework of the (Barcelona) Convention for the Protection of
the Mediterranean Sea Against Pollution of February 16, 1976.”07 The Barce-
lona Convention, part of U.N.E.P.’s Regional Seas Programme, prohibits the
discharge of black list substances. Discharges of grey list substances are to be
strictly limited. The Barcelona Convention’s lists of substances are more com-
prehensive than those of the Paris Convention and the requirements regarding
permits are more stringent.’
Article 8 of the Barcelona Convention deals with pollution from land-
based sources. Atmospheric pollution is covered only in the most general fash-
ion and is not specifically mentioned. The parties are to prevent, abate and com-
bat pollution “caused by discharges from rivers, coastal establishments or
outfalls, or emanating fiom any other land-based source within their territories”
[emphasis added].
The Protocol for the Protection of the Mediterranean Sea Against Pollu-
tion fiom Land-Based Sources”9 to the Barcelona Convention focuses on land-
based pollution without including specific rules on atmospheric pollution. How-
ever, article 4(1)(b) declares the Protocol and its obligations applicable to
“pollution from land-based sources transported by the atmosphere, under the
conditions to be defined in an additional annex to this protocol ……
Under the auspices of U.N.E.P. and the World Meteorological Organization
(WMO), work in this regard has been under way since 1988 when an ad hoc
meeting began to discuss the possible elements of an annex dealing specifically
with atmospheric pollution.”0 In May 1990 a draft was submitted to the Barce-
lona Convention parties.”‘ It applies to pollution discharged into the atmosphere
affecting the Athens Protocol area from land-based sources within the parties’
territories, particularly from the energy production, industry, transportation, and
incineration sectors.”2 The draft further applies to discharges from vessels and
1’Reprinted in (1976) 15 I.L.M. 290 [hereinafter Barcelona Convention].
“SHohmann, supra, note 26 at 57.
l’9Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based
Sources, 17 May 1980, reprinted in (1980) 19 I.L.M. 869 (in force since June 17, 1983) [hereinafter
Athens Protocol]; see Hohmann, ibid. at 59.
“0Report of the Ad Hoc Meeting for the Preparation of the Annex IV of Land-Based Sources
Protocol to the Barcelona Convention, Athens, 19-21 December 1988, U.N. Doc. U.N.E.P. (OCA)/
MED WG. 6/1, (21 December 1988).
“‘Information kindly provided by A. Soudine, Senior Scientific Officer, Environment Division,
W.M.O., Geneva: letter of May 24, 1990.
” 2Airborne Pollution of the Mediterranean Sea from Land-Based Sources (Annex IV to the Ath-
ens Protocol) U.N. Doc. U.N.E.P. (OCA)/MED WG. 12/5, (5 April 1990).
1991]
BALTIC SEA AREA
fixed man-made offshore structures.113 The Annex designates several of the sub-
stances which the Athens Protocol lists in its Annex I and which the parties are
required to eliminate under Article 5 of the Athens Protocol. They include orga-
nohalogen and phosphate substances, mercury, and radio-active substances.” 4
Similarly, several of the Annex II substances are listed and must be strictly lim-
ited pursuant to Article 6 of the Athens Protocol. These encompass zinc, copper,
lead, inorganic phosphorous and substances enhancing eutrophication.1 5 The
parties are also called upon to develop common guidelines regarding the height
and location of chimneys, lead content in gasoline and the efficiency of partic-
ulate matter filters in coal-fired power plants.” 6
d. U.N.E.P. and the Regional Seas Programme
Several other of the U.N.E.P. Regional Seas Conventions deal with atmo-
spheric pollution as an aspect of land-based pollution, but are far less advanced
than the Barcelona Convention.”7 Other Regional Seas Programme Conven-
tions address the matter separately from land-based pollution in a very general
article calling on parties to “take all appropriate measures to prevent, reduce and
control pollution in the Convention area resulting from discharges into the
atmosphere from activities under their jurisdiction.””‘ 8
U.N.E.P. has also devoted special attention to marine pollution from land-
based sources outside the Regional Seas Programme. However, the “Montreal
Guidelines on the Protection of the Marine Environment Against Pollution from
Land-Based Sources” limit themselves to including atmospheric pollution in the
definition of land-based pollution.”9
e. The Law of the Sea Convention
The Law of the Sea Convention of 1982 devotes two provisions of its Part
XII exclusively to marine pollution via the atmosphere.’ Under article 212(1),
states “shall”, within the airspace under their sovereignty or with regard to ves-
sels or aircraft under their flag or registry, adopt national laws and regulations
I3See art. 2, ibid.
“4See art. 3, ibid.
“5See art. 4, ibid.
” 6See art. 5, ibid.
Il7See art. 6 of the Kuwait Regional Convention for Co-operation on the Protection of the
Marine Environment from Pollution, April 24, 1978, reprinted in (1978) 17 I.L.M. 511; and art.
6 of the Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment,
Jeddah, 14 February 1982, U.N. Doc. U.N.E.P./GC/INF/II/Rev.1 (1985) 191.
11SSee, e.g., art. 9 of the Convention for the Protection of the Natural Resources and Environ-
ment of the South Pacific Region, Noumea, 25 November 1986, reprinted in (1987) 26 I.L.M. 38.
“9Guidelines reprinted in (1985) 14 Env. Pol. & L. 77.
12Supra, note 29.
McGILL LAW JOURNAL
[Vol. 36
regarding “pollution from or through the atmosphere.” In doing this, states are
to take into account, inter alia, internationally agreed upon rules and standards.
According to article 212(3), they are to “endeavour to establish global and
regional rules, standards and recommended practices and procedures to prevent,
reduce and control such pollution.” With regard to enforcement, article 222
obligates the states to enforce their own rules and standards and to adopt laws
and regulations to implement the international standards established pursuant to
article 212(3).
As one writer suggests, the Law of the Sea Convention’s rules of reference
regarding atmospheric pollution are rather weak. 121 In adopting their own laws,
the states need only “take account” of international rules and standards but are
not obligated to adopt them. By contrast, national rules pertaining to vessel-
source pollution, sea-bed activities or dumping must conform to certain mini-
mum standards derived from the international level. 121 In the same vein, states
are not required to establish international rules on atmospheric pollution, but
must only “endeavour” to do so.
This overview shows that in departing from approaches similar to that of
the Baltic region, considerable progress has been made toward recognizing and
abating atmospheric pollution of the marine environment.
5.
HELCOM’s Role in Enhancing Cooperation
Commenting on the Helsinki Convention’s vague provisions on pollution
from land-based sources, one writer suggested in 1981 that the Convention’s
success and significance would largely depend on future cooperation and the
Indeed the Commission’s powers
role played by the Helsinki Commission.”
and functions in this regard are of considerable importance and the Commission
has actively enhanced regional cooperation. Its work has been quite successful
despite its limited regulatory powers. According to article 13(d) the Commis-
sion, based in Helsinki, can define pollution criteria and objectives for pollution
reduction, particularly with a view -to the prevention of pollution from land-
based sources. Its advisory powers, outlined in article 13(b) and (c), include the
authority to review the Helsinki Convention’s contents and to recommend
amendments to both the Helsinki Convention and its annexes, as well as the lists
of substances.
This latter power is of great significance because, under the conditions of
article 24(1) and (2), the Commission itself may adopt amendments to the
annexes and substance lists. It communicates these amendments to the parties
12’Boyle, supra, note 23 at 354.
122See articles 211(2), 208(3) & 210(6), Law of the Sea Convention and supra, note 33 and
accompanying text.
123Supra, note 16 at 216-17.
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and they are considered to be accepted unless a party objects in writing within
a certain period of time. These decisions must be taken unanimously with each
contracting party having one vote pursuant to article 12(5).
Other HELCOM duties include the continuous observation of the Helsinki
Convention’s implementation (article 13(a)), the promotion of additional protec-
tion measures (article 13(e)), the exchange of scientific information and the pro-
motion of research (article 13(f)). HELCOM is assisted in these functions by
three permanent committees –
the Scientific-Technological Committee, the
Maritime Committee and the Combating Committee –
as well as temporary
working groups. ’24
What has HELCOM done regarding airborne pollution of the Baltic Sea?
Before answering this question one must consider the rules and remedies avail-
able to the area covered by the Helsinki Convention from external sources. Only
when this setting is known can activities within the region be adequately eval-
uated and further measures suggested.
6.
Rules and Cooperation Outside the Helsinki Convention and Their
Effect on Airborne Pollution of the Baltic Sea Area
a. Customary Law
The rules of customary law mentioned earlier do not provide an adequate
answer to the issues at hand.”z The rule prohibiting transfrontier pollution caus-
ing damage to another state’s territory does not protect the high sea areas of the
Baltic Sea from atmospheric input. Some of these areas, however, are particu-
larly threatened by eutrophication. Even in the limited area of the Baltic states’
territorial waters there are several problems in the rule’s application. The rule
protects only from “serious damage.”‘ 26 There is considerable evidence that
atmospheric introduction of phosphorous and nitrogen cause serious eutrophica-
tion.2 Yet scientists also caution that there are invariables in their research and
data. 2′ A second problem would, therefore, arise from the need to establish a
steadfast link between emissions and effect.’29 A third aspect, closely connected
to the second, is the difficulty of attributing a specific portion of the damage to
a given country. The conclusion must be that the aforementioned customary rule
is too general to provide the finely tuned solution the Baltic pollution problems
124See H.A. Velner, “Baltic Marine Environment Protection Commission” in Westing, ed.,
supra, note 28, 75 at 75-76.
’25See supra, notes 19-21 and accompanying text.
2 6See Trail Smelter, supra, note 21; Principle 21 of the Declaration on the Human Environment,
1
supra, note 2.
127Supra, note 47 and accompanying text.
121HELCOM No. 32, supra, note 53 at 3, 7, 11.
129See, supra, note 20 at 136.
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require. This is confirmed by the fact that states have never relied solely on cus-
tomary rules but, at the most, have used them as a starting point for elaborate
treaty-based cooperation. 130 The situation with regard to the high seas is even
more uncertain since there is not even agreement as to the existence of custom-
ary rules protecting states beyond national jurisdiction.’
b. The Law of the Sea Convention
The Law of the Sea Convention does not remedy this situation since its pro-
visions on airborne pollution create no significant new obligations. 32 Therefore,
even if the Law of the Sea Convention were in force, it would not significantly
benefit the protection of the Baltic Sea against airborne pollution. Its protection
levels are not higher than those already anchored in the Helsinki Convention.
The only change which would arise from its application would be that extra-
regional states could be held to the aforementioned loose obligations. The Law
of the Sea Convention confirms the pattern found in the other agreements pre-
viously analyzed: the marginal protection of the marine environment against the
pollution from land-based sources and via the atmosphere is out of proportion
to the significance of these sources.
c. The Paris Convention
At the regional level, the only marine-oriented treaty of possible relevance
is the Paris Convention which was discussed earlier. Its significance for the Bal-
tic Sea Area is marginal since, at best, it covers the entrance to the Baltic Sea.’33
d. The 1979 E.C.E. Convention for Long-Range Transboundary Air Pollution
One must, therefore, turn to agreements that specifically address long-
range air pollution. The only multi-lateral approach to this problem is the 1979
United Nations Economic Commission for Europe (E.C.E.) Convention on
Long-Range Transboundary Air Pollution.'” As a result of its membership, this
convention is of interest to the solution of atmospheric pollution problems in the
Baltic. The contracting parties to the E.C.E. Convention include all the countries
in Eastern and Western Europe whose emissions could affect the Baltic Sea.’35
‘3lbid. at 268.
’31Supra, note 19 and accompanying text.
132Supra, note 21 and accompanying text.
133Supra, note 84 and accompanying text.
13413 November 1979, reprinted in (1979) 18 I.L.M. 1442 [hereinafter E.C.E. Convention].
1350n membership as of September 15, 1989 see Executive Body for the Convention on Long-
Range Transboundary Air Pollution, United Nations Economic Commission for Europe, Annual
Review of Strategies for Air Pollution Abatement, UN ECE Doc. ECE/EB.AIR/R.40, (September
26, 1989) at 15 [hereinafter EB.AIR, Annual Review].
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The E.C.E. Convention, in force since 1982, provides a framework that
establishes broad obligations and cooperative mechanisms, but leaves specific
emissions reductions and the choice of substances to protocols.’36 The parties
commit themselves only to “endeavour to limit and, as far as possible gradually
reduce and prevent air pollution including long-range transboundary air pollu-
tion” (article 2). They are to “develop without undue delay policies and strate-
gies which shall serve as a means of combating air pollution …” (article 3) and
exchange information in this regard as well as increase their research coopera-
tion (articles 3, 7, 8). This approach, which allows the parties to commit them-
– selves gradually to limited obligations, has proven successful.
In the 1985 Helsinki Protocol3 7 the parties agreed to a 30% reduction of
sulphur dioxide (SO 2) emissions by 1993.131 Nineteen states have become party
to the Helsinki Protocol, which entered into force in September 1987. Inherent
in the “flat-rate percentage reduction approach” and the chosen baseline year of
1980 are several problems as to the Helsinki Protocol’s effectiveness. 39 None-
theless, it has led to an overall reduction of sulphur emissions and several par-
ties have committed themselves to exceeding the reduction rates required by the
Helsinki Protocol.40
The 1988 Protocol to the 1979 E.C.E. Convention on Long-Range Trans-
boundaiy Air Pollution (Sofia Protocol),” which is not yet in force, addresses
nitrogen oxides (NO) emissions. However, while it provides for the option of
emission reductions in the future, it is weaker than the Helsinki Protocol in that
it requires the parties only to freeze their emissions at the levels of a base year
of their choice (article 2(1)).142 Yet, ecologically speaking, it could turn out to
be far more effective than its sulphur counterpart. For the first time, the Sofia
Protocol adopts the concept of “critical/target loads” as the basis for emission
reductions (article 2(3)). Emissions must be reduced until acceptable deposition
or concentration values are achieved and the national reduction rates depend on
the sensitivity of the area its emissions affect. 43
136Supra, note 20 at 184-85.
137Supra, note 135 at 15.
138protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, on the Reduc-
tion of Sulphur Emissions by at least 30%, in Executive Body for the Convention on Long-Range
Transboundary Air Pollution, UN ECE, 3rd Sess., Doc. ECE/EB.AIR 18, Annex I, (August 6,
1985) [hereinafter Helsinki Protocol].
139A. Fraenkel, “The Convention on Long-Range Transboundary Air Pollution: Meeting the
140Ibid. at 471.
141protocol to the 1979 E.C.E. Convention on Long-Range Transboundary Air Pollution, Con-
ceming the Control of Emissions of Nitrogen Oxides or Their Transboundary Fluxes, 31 October
1988, reprinted in (1989) 28 I.L.M. 212 [hereinafter Sofia Protocol].
Challenge of International Cooperation” (1989) 30 Harvard Int’l L.J. 447 at 470.
142Supra, note 139 at 473.
143Personal communication with Dr. Hans Martin, Director, Air Quality and Inter-environmental
Research Branch, Atmospheric Environment Service, Environment Canada, (March 30, 1990).
McGILL LAW JOURNAL
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The choice of substances regulated under the protocols reflects the inten-
tion of the contracting states to counteract widespread acidification of the envi-
ronment. Only recently has the E.C.E. also begun to take into consideration
volatile organic compounds (VOx).’4 While such E.C.E. efforts are certainly
beneficial to the Baltic Sea area, they do not provide the much-needed strategy
against eutrophication. It remains to be seen whether this will be changed by the
Sofia Protocol and its “critical loads” approach. In any event, action geared
toward curbing emissions of eutrophication-enhancing substances could be ini-
tiated by the Baltic member states of the E.C.E.. All Baltic states have signed
and ratified the 1979 E.C.E. Convention and have at least signed its protocols.”‘ a
It must, nonetheless, be cautioned that the usefulness of E.C.E. action to the
Baltic may be hampered by the E.C.E.’s need to accommodate North American
interests as well.’46 This is true with respect to the compromises necessary to
satisfy the interests of the United States. 147
Currently, the E.C.E. activities of greatest significance to the Baltic States
are those involving the monitoring of air pollution and its effects. The E.C.E.
funds the European Monitoring and Evaluation Programme (E.M.E.P.) which
measures the concentration of various substances in the atmosphere and calcu-
lates the transport and deposition of air pollutants (articles 2-4 of the E.M.E.P.
Protocol).14 The network now consists of 95 sampling stations in 24 European
countries, several of which include NO, and VOx in their measuring activi-
ties. 149
e. The European Communities
Finally, activities of the European Communities (E.C.) are relevant to the
Baltic since two of the Baltic states – Denmark and Germany –
are members
of the E.C. “‘ Not only are these states bound by E.C. law regarding air pollu-
tion, they can also represent the Baltic cause in the E.C. “‘t This aspect is not
to be underestimated since the Federal Republic of Germany is an influential
member of the E.C.
21.
144Ibid.
145Poland, which has not signed the Helsinki Protocol, is an exception. See, supra, note 135 at
146The United States and Canada are members of the E.C.E. See, supra, note 20 at 175.
1470n the impact of the U.S. position on the negotiation of the Sofia Protocol, see supra, note
139 at 472-73.
14’Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, on Financing
the Monitoring and Evaluation of Air Pollutants in Europe (E.M.E.P.), 28 September 1984,
reprinted in (1985) 24 I.L.M. 484 [hereinafter E.M.E.P. Protocol].
149Supra, note 139 at 460.
150See, supra, note 20, at 162ff.
“‘Ibid. at 166ff; 0. Lomas, “Environmental Protection, Economic Conflict and the European
Communities” (1988) 33 McGill L.J. 506 at 519ff.
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In the Single European Act of 1987, the E.C. inserted articles 130 R-T into
the E.E.C. Treaty.’52 These provisions provide the E.C. with explicit environ-
mental powers. Pursuant to article 130 R (4), the E.C. will take action related
to the environment with respect to the extent to which objectives can be better
attained at the E.C. level than at the level of individual member states. 153
Among the stated priorities of the E.C. are the fight against air and marine
pollution and the prevention of the transfer of problems from one part of the
environment to another. 54 In its Fourth Environment Action Programme
(1987-1992) the E.C. departs from the strictly sectoral approach to environmen-
tal protection and promotes “multimedia” pollution controls.’ 5 – Consistent with
this approach is the E.C.’s goal of reducing land-based pollution via, inter alia,
atmospheric transport. 56 It is also noteworthy that the E.C. wishes to strengthen
its participation in the protection of regional seas and in particular its role under
the Helsinki Convention. 57
f. The Nordic Convention
The Nordic Convention’s usefulness in addressing the issues which are the
focus of this article is limited. The main reason is that it aims at providing rem-
edies to individuals in cases where it is possible to identify the causes of pol-
lution.’ s
7.
Recent Action on Airborne Pollution under the Helsinki Convention
Meanwhile, HELCOM has indeed seized the initiative and built on the
basis of possible reductions of atmospheric pollution provided in the Helsinki
Convention. HELCOM’s activities fall into three categories: action regarding
the monitoring of atmospheric pollution and data collection, recommendations
on emission reductions and the suggestion of changes to the Helsinki Conven-
tion itself.
a. Monitoring and Data Collection
Outside the scope of HELCOM, research on atmospheric pollution of the
Baltic was well under way in the 1970s.’59 HELCOM itself has focused on
Communities (7 December 1982), No. C 328/43.
152″Annex: E.E.C. Fourth Environmental Action Programme (1987-1992)” Off’1 J. European
153Ibid. at C 328/44.
I’5″Council Resolution,” ibid. at C 328/2.
’55Ibid at C 328/18.
156Ibid. at C 328/24.
157Ibid. at C 328/37.
15SSupra, note 72; see, supra, note 20 at 174.
159See, supra, note 54 at 173.
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research and monitoring of atmospheric pollution of the Baltic Sea since the
mid 1980s. It set up an ad hoc Group of Experts on Airborne Pollution of the
Baltic Sea Area (E.G.A.P.).’ 60 E.G.A.P. functions as advisory body to the
Scientific-Technological Committee on matters related to monitoring and
assessment of airborne pollution.’ 6′ In particular it is to (i) compile data on dep-
osition and atmospheric concentrations of pollutants related to the Baltic, (ii) set
up and run a network of stations and collect data on a national basis, (iii) select
and recommend the use of appropriate models for the construction of deposition
fields as well as numerical models for the evaluation of the pollutants’ origin,
and (iv) take advantage of ongoing international activities. Also, E.G.A.P.
advises the Scientific-Technological Committee on the need for reduction mea-
sures and on the preparation of an inventory of substances deposited in signif-
icant quantities. 62
Monitoring activities pursuant to the framework adopted by HELCOM
have already yielded the first results. An evaluation report based on data pro-
vided by all Baltic states for 1983-1986 has just been published.’63 By now all
Baltic states have also provided data for 1988 and are about to provide data for
1989. 64 With its Recommendation 11/1 HELCOM adopted a new framework
for the monitoring of airborne pollution loads. 6 In confirming the Baltic states’
commitment under Article 6 of the Helsinki Convention to “endeavour to use
best practicable means to minimize airborne pollution” and Article 16 on coop-
eration in research and monitoring, HELCOM expressed its desire to limit the
pollution of the Baltic Sea by the atmospheric transport of harmful substances.
It recommended that each Baltic state should have at least one monitoring sta-
tion at sea and set out minimum requirements for the monitoring process. Nitro-
gen compounds have a prominent position in this regard.
HELCOM has also increased its cooperation with other international orga-
nizations. In the fall of 1989 the Commission and the E.C.E. entered into a
Memorandum of Understanding to enable cooperation with regard to data on
airborne pollution. 66 In this regard HELCOM has moved beyond the Paris
16See e.g. the Seminar on Diffusivity, Transport and Deposition Processes of Atmospheric Pol-
lutants to the Baltic Sea; held in conjunction with the Third Meeting of the ad hoc Group of Experts
on Airborne Pollution of the Baltic Sea Area (E.G.A.P.) of the Baltic Marine Environment Protec-
tion Commission – Helsinki Commission, Neubrandenburg, 7-8 May 1986 [unpublished].
161See Baltic Marine Environment Protection Commission – Helsinki Commission, Seventh
Meeting of the Group of Experts on Airborne Pollution of the Baltic Sea Area, Helsinki, 24-27
April 1990, E.G.A.P. 7/10, Annex 2 [hereinafter HELCOM, Seventh Meeting].
1621bid.
163See HELCOM No. 32, supra, note 53.
164Supra, note 161 at 5.
1651bid., Annex 4.
1661bid. HELCOM Annex 6; and Steering Body to E.M.E.P., Executive Body for the Convention
on Long-Range Transboundary Air Pollution, UN ECE, 13th Sess., Doc. ECE/EB.Air/GE. 1/14 at
8 (15 September 1989).
1991]
BALTIC SEA AREA
Commission which is only preparing such cooperation. 67 Under the Memoran-
dum, the E.C.E. authorized international centres of E.M.E.P. to enter into sep-
arate agreements with HELCOM concerning the collection, storage, processing,
evaluation and reporting of data on airborne pollution in the Baltic Sea area.
HELCOM has already entered into such an agreement with the Norwegian Insti-
tute for Air Research. 68
Though it has no formal links with the Paris Commission and the Group
of Experts on the Scientific Aspects of Marine Pollution (G.E.S.A.M.P.),
HELCOM takes note of relevant activities of these bodies. 69
The next evaluation of data on airborne pollution is scheduled for the
autumn of 1991. It is to be prepared in cooperation with E.C.E. experts and is
to include emissions from ships.7 ‘ Monitoring will be based on modelling using
both deposition and meteorological data as well as emission data from different
sources.’ On the basis of these results, HELCOM will be advised regarding
further reduction of air pollution from the diverse sources, taking into account
the action and plans of other international organizations.’72
b. Recommendations Related to the Reduction of Airborne Pollution
Apart from activities related to monitoring, HELCOM has begun in the last
two years to address airborne pollution of the Baltic Sea by adopting recom-
mendations aimed at reducing emissions from various sources. 173 The recom-
mendations use a branch-by-branch approach and address different sectors con-
tributing to land-based pollution via the atmosphere. Recommendation 9/4 of
February 15, 1988 calls for the reduction of emissions of lead from the combus-
tion of leaded gasoline. Recommendation 11/7 of February 14, 1990 concerns
measures aimed at the reduction of emissions to the atmosphere from the iron
and steel industry. 74 On the same day HELCOM adopted Recommendation
11/11 on measures to reduce the emission of harmful chlorofluorocarbons
try of Foreign Affairs, Helsinki, Finland, letter of June 21, 1990.
167Ibid.
168Supra, note 161, Annex 7.
‘691bid at 2.
170Information kindly provided by Ambassador Pertti Harvola, Legal Department of the Minis-
l7’Ibid.
172bid.
1731bid.
174See in this context Baltic Marine Environment Protection Commission – Helsinki Commis-
sion – Report of the Third Meeting of the Working Group on Reduction of Industrial Discharges
(RID), Ltibeck, Federal Republic of Germany, 14-18 May 1990, RID 3/10 [hereinafter HELCOM/
RID, Third Meeting].
McGILL LAW JOURNAL
[Vol. 36
from ships and Recommendation 11/12 on the reduction of air pollution from
ships.
175
c. Revision of the Helsinki Convention
Finally, and perhaps most importantly, HELCOM has undertaken to con-
sider revision of the Helsinki Convention itself and thus to attempt to remedy
some of the shortcomings mentioned earlier. An ad hoc Group for the Revision
of the Convention met for the first time at the end of June 1990.,76 Four aspects
of the revisions under consideration are of particular interest in the present con-
text. The first is the introduction of more legally-binding technical provisions on
the prevention and control of land-based pollution (including airborne pollu-
tion). 177 The second aspect –
the implementation of the “best available technol-
ogy” to reduce land-based pollution – will also receive attention. In this con-
text, it is noteworthy that the Working Group on Reduction of Industrial
Discharges recently suggested a definition of this term as used in Article 6(1)
of the Helsinki Convention. 78 The proposal focuses on “the latest stage of devel-
opment” and lists a number of criteria to determine whether it represents the
“best available technology.” These are (a) comparable processes, facilities and
technologies, (b) technological advance and change in scientific knowledge, (c)
economic feasibility, (d) time limits for application, (e) nature and volume of the
effluent concerned and (f) the precautionary principle. The latter is of particular
interest since the working group’s specification reads:
action should be taken when there is reason to assume that certain damage or
harmful effects on the living resources of the sea are likely to be caused by dis-
charged substances, even where there is no scientific evidence to prove a causal
link between discharges and effects caused by nutrients and by substances consid-
ered to be harmful ….
Consistent with this latter aspect of the contemplated revision is the fact that a
commitment to the precautionary principle as such is also considered by the
working group. 179
Finally, the changes considered also touch upon the application area of the
Convention. The ad hoc group is to look into the possibility of an enlarged
applicability to cover internal waters and the entire catchment area of the Baltic
175See in the latter context related E.C.E. activities, Executive Body for the Convention on Long-
range Transboundary Air Pollution, U.N. E.C.E., 7th Sess., Doc. ECE/EB.AIR/20, December 20,
1989, Annex HI.
176Supra, note 170.
177See Baltic Marine Environment Protection Commission – Helsinki Commission – Eleventh
Meeting, Tasks of the HELCOM ad hoc Group for Revision of the Convention, Helsinki, 13-16
February 1990, HELCOM 11/14, Annex 28 [hereinafter HELCOM, Eleventh Meeting].
178Supra, note 174, Annex 5.
179Supra, note 177.
1991]
BALTIC SEA AREA
Sea.8 While this is of no direct relevance to airborne pollution, it is mentioned
here because it would address one point of criticism and would make the Hel-
sinki Convention match the Paris Convention’s scope in this regard.
Conclusion
The Baltic approach to airborne pollution of the marine environment has
evolved considerably since the adoption of the Helsinki Convention in 1974.
The Helsinki Convention’s provisions in this context –
especially when com-
pared to those on other sources –
leave much to be desired. It was also pointed
out that this is hardly surprising given the time of the Helsinki Convention’s
conclusion and the characteristics of airborne pollution. Economic aspects, sci-
entific uncertainty and, therefore, lack of precedents for cooperation explain
why the Helsinki Convention, could not realistically achieve more at the time.
The progress of cooperation in the Baltic can be evaluated by way of a
comparison with efforts under the Barcelona Convention, the other centre of
activity concerning atmospheric marine pollution.
The Helsinki Convention was in many ways a model for the 1976 Barce-
lona Convention.’ However, with regard to atmospheric pollution the latter
took a different path from that of the Baltic agreement. It started out in a more
general fashion than the Helsinki Convention but, with the 1980 Athens Proto-
col, moved beyond its counterpart. Atmospheric pollution is specifically men-
tioned and receives the same treatment as any other land-based pollution:
Annex I substances must be “eliminated” and Annex II substances must be
“strictly limited.” Accordingly, the Mediterranean approach, unlike the Helsinki
Convention, does not distinguish between airborne and other land-based pollu-
tion. The Athens Protocol does, however, leave the exact delimitation of the
duties of the parties (specification of substances) to the annex which is currently
in the drafting process. It remains to be seen whether the rather ambitious annex
will meet with the approval of the parties to the Convention.’
The Helsinki Convention, by contrast, seemed to start out in a more spe-
cific manner than the Barcelona Convention. In reality, as was suggested earlier,
the already weak rules on land-based pollution were further qualified with
respect to airborne pollution. A double qualification –
the parties only have to
“endeavour” to use the “best available technology” –
provides states with
escape routes on two levels.
Unlike the Barcelona Convention, the Helsinki Convention does not work
by way of protocols. Its obligations arise directly from the Helsinki Convention
‘t t bid.
181″International Protection,” supra, note 35 at 812.
18 2A. Soudine has expressed doubts that this will occur. See supra, note 111.
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and are specified through annexes. Furthermore, HELCOM, in a recent action,
has chosen a different approach to that of the Mediterranean states. Instead of
addressing atmospheric pollution in a comprehensive fashion, it adopted a
branch-by-branch approach (for example industry, gasoline, ships). It is a matter
of opinion whether this approach is ideal. It may facilitate negotiations and the
adoption of solutions tailored to the sector in question. Nonetheless, one should
consider whether this approach should not at least be complemented by an over-
all air pollution strategy. One option would be the adoption of a list of priority
substances to be addressed in all sectors.
A commendable feature of HELCOM’s action is its three-tier approach to
atmospheric pollution. Its strategy on monitoring and data collection is excellent
and tackles the aforementioned problem of uncertainty. International experience
has shown that extensive research and monitoring are indispensable steps on the
way to effective cooperation, not only because they chip away at the “excuse”
of uncertainty, but also because they map out the “where” and “how” of reme-
dial action. In this context the Baltic states may want to follow the E.C.E. map-
ping efforts for the critical loads approach. Perhaps this can contribute to the
solution of the eutrophication problems.
HELCOM’s recommendations concerning airborne pollution follow the
aforementioned branch-by-branch approach and address narrow issues of an
arguably less contentious nature. The recommendation regarding the iron and
steel industry focuses only on dust emissions and is limited to stating that they
“should be avoided.”‘8 The recommendation regarding air pollution from ships
calls for only the “limiting” of this pollution “as soon as possible.””‘ The rec-
ommendations on lead content in gasoline and chlorofluorocarbon emissions
from ships address issues which had already been dealt with internationally.’
Furthermore, all of these recommendations must be seen in light of the limited
obligations of the parties under the Helsinki Convention which requires only
that they “endeavour” to take steps. This is certainly not comparable to the duty
envisaged in the Barcelona Convention to “eliminate” and “strictly limit” the
emissions of certain substances.
HELCOM’s initiative to revise the Helsinki Convention acknowledges the
need “to bring the Convention with Annexes in line with the development since
’86 The introduction of more legally binding technical provisions in the
1974.
field of prevention and control of marine pollution could address some of the
above criticism and introduce more specific rules along the lines of the Athens
Protocol. In any event, it is to be hoped that the planned revision will bring a
‘t 3Supra, note 174.
1841bid.
18Ibid.
’86Supra, note 177.
1991]
BALTIC SEA AREA
stronger commitment to the reduction of airborne pollution. Such a commitment
would give more weight to Baltic requests for indispensable external support.
Perhaps the Baltic states could also re-assert their leadership in regional marine
management they claimed with the Helsinki Convention.
Action regarding the use of “best available technology” could remedy the
“double qualification” aspect. If the criteria of “nature and volume of effluent”
and the “precautionary principle” (the latter also as a general rule) were
accorded adequate weight, the notion of “best available technology” could set
higher standards with respect to the abatement of nitrogen and phosphorous
emissions.
Throughout this article, reference has also been made to the need to fit Bal-
tic cooperation into the larger picture. The World Commission on Environment
and Development has set out three imperatives for ocean management:
The underlying unity of the oceans requires effective global management regimes.
The shared resource characteristics of many regional seas make forms of regional
management mandatory.
The major land-based threats to the oceans require effective national action based
on international cooperation.187
All three of these aspects find support in the Baltic context. The protection
of the marine environment requires global efforts on several counts. At a prac-
tical level there is a need for coordinated research, data collection and exchange
of experience. There are also certain geographic areas and kinds of pollution
that call for a global approach; the high seas and pollution from ships, for exam-
ple, are to a considerable extent outside the reach of effective regional cooper-
ation.8 8 In turn, combating pollution from land-based sources requires a
regional approach tailored to the number of states concerned and the features of
the regional problem.
Action at the global level could facilitate these and any other cooperative
efforts by promoting certain minimum standards. This could be achieved by the
1982 Law of the Sea Convention, either once it enters into force or as customary
law. Such global standards could also alleviate the problem of potential trade
imbalances currently making environmental protection measures unattractive or
impossible for individual states.
Similarly, the global promotion of ideas, such as sustainable development
or the limitation of sovereign interests in favour of common interests, can only
benefit regional cooperation. They can influence regional interaction, particu-
larly if they crystallize into customary law.
187Supra, note 3 at 264.
188See, supra, note 30 at 45, 53.
McGILL LAW JOURNAL
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Realistically, however, such developments can only be expected to
improve the frame of reference for regional action. It has already been shown
that broad customary rules are not sufficient for the adequate management of
complex environmental problems.’89 This is the point at which regional
approaches become indispensable. They can be tailored to the needs of a region.
As a result, they are likely to be more effective because of the increased homo-
geneity of interests and the greater incentive to act. 9 ‘
At the same time, as the Baltic example illustrates, regional approaches
must be coordinated with those of neighbouring regions or larger settings. One
might describe it as a system of “superimposed regions,” beginning with the
core region (in this case, the Baltic), and ranging over a larger setting (E.C.E.
action on air pollution), to a global setting (regarding vessel-source pollution or
perhaps issues such as climate change).
Such “inter-regional” cooperation is beneficial to the Baltic because it can
draw on the experience and resources of larger settings. It is also inevitable
because problems such as air pollution cannot otherwise be tackled.
Nonetheless, regions such as the Baltic must develop their own strategies,
in order to be, at least, in a position to attempt to influence E.C. or E.C.E. activ-
ities with a view to the needs of the Baltic. HELCOM is well on track in this
regard. While it may not be an entirely realistic option, it should also be pointed
out that the Helsinki Convention is open to accession by other states (article 26).
It would accordingly be possible for the states contributing to airbome pollution
in the Baltic to join the regional states in their effort to reduce this kind of pol-
lution. Finally, concerning effective national action, a reporting system could
perhaps enhance the implementation of the Helsinki Convention.’9′
In conclusion, one might add that conditions for more effective coopera-
tion in the Baltic Sea area are improving. Environmental cooperation in the
region has long suffered from the difficulties inherent in East-West relations.
The recent dramatic changes in these relations coincide with the public
acknowledgement by the East of serious environmental problems and the need
for immediate action and assistance. In the Soviet Union, for example, ecolog-
ical activism is on the rise and the Soviet government has signalled its commit-
ment to protecting the global environment.’ 9 Recent Soviet support for environ-
mental protection is all the more promising in light of the shift in its
international legal doctrine toward “new thinking.” One aspect of this new
‘ 9Ibid. at 40.
190Ibid. at 53.
191This type of system is also among the suggested revisions to the Helsinki Convention. See,
192See D. Thompson, “The Greening of the USSR” TIME (2 January 1989) 68; G. Garelik, “The
supra, note 177.
Soviets Clean Up Their Act” TIME (29 January 1990) 46.
1991]
BALTIC SEA AREA
approach is the recognition of international interdependence and of the priority
of global problems such as the protection of the environment.93
An additional boost for Baltic cooperation may come from the unification
of the two Germanies. It not only removes a source of tension in the region, but
also creates an even more influential proponent of environmental protection.
The link between East-West relations and environmental protection, it
should be noted, is by no means a one-way connection. The importance of envi-
ronmental protection and cooperative resource use for regional security has long
been recognized.1 94 And, should East-West relations ever deteriorate again,
well-established environmental cooperation may prove to be invaluable.
193V.S. Vereshchetin & R.A. Myullerson, “New Thinking and International Law” (1988) 3
Sovetskoe Gosudarstvo i Pravo 3 [translated for the Parker School of Foreign and Comparative
Law by L. Kreynin & R. Taylor]; for a critical assessment of the Soviet approach to international
law, see G. Ginsburgs, “Soviet International Law and Baltic Environmental Protection” paper pre-
sented at the International Conference on Ecology and Law in the Baltic Sea Area, Riga, 27-31
August 1990 [unpublished].
194See S. Lodgaard, “Confidence Building in the Baltic Region” in Westing, ed., supra, note 28,
99 at 103.
