1. INTRODUCTION
November 2014 marked the 35th anniversary of the adoption of the 1979 Convention on Long-Range Transboundary Air Pollution (CLRTAP),Footnote 1 negotiated under the auspices of the United Nations Economic Commission for Europe (UNECE). This major regional multilateral environmental agreement (MEA), with its eight Protocols, has evolved into a notable environmental regime.Footnote 2 The long-range transboundary air pollution (LRTAP) regime attempts to address a number of environmental and health problems caused by industrialization, agricultural modernization, and fossil fuel consumption.Footnote 3 This includes the effects of acidification, photochemical smog, ground-level ozone, eutrophication, fine particulate matter (PM2.5, particularly black carbon, a short-lived climate forcer), and contamination by toxic chemicals.
Scholarly opinions on the effectiveness of the LRTAP regime have varied.Footnote 4 This article has three major objectives: to give an overview of the regime, to assess its effectiveness from the standpoint of current thinking in international environmental law, and to think critically about how the effectiveness of regimes is assessed. The current effectiveness discourse is based on interconnected yet separate groupings: legal, normative, problem-solving, institutional, political, and economic effectiveness.Footnote 5 Given this fragmentation, it has been argued that the positivist approach to effectiveness is the most suitable, with normative considerations less relevant, and approaches based on quantitative methods suffering from reductionism.Footnote 6 Two decades ago, Sand’s criteria for effectiveness focused on the treaty objectives and their achievement, the rules and processes concerning state participation, implementation, information sharing, the provisions for operation, review and adjustment, and codification programming (including both formal and informal instruments).Footnote 7 The conceptual approach has subsequently been broadened. Bodansky has identified four major determining factors of effectiveness: (i) the nature of the problem; (ii) the international political system; (iii) the characteristics of the countries involved; and (iv) the design of the regime. As Bodansky notes, there is a belief that regime design (the ‘institutional and legal characteristics’ of a regime) plays an important role in determining effectiveness.Footnote 8 Bodansky cautions, however, that in light of ‘the extent that states trade off different design elements against one another, we cannot analyze these elements in isolation; we need to consider them as a whole’.Footnote 9 The current inability to resolve how the trade-offs should be made, with each problem having its own particular dynamics and the end product reflecting a necessary compromise, is suggestive to Bodansky of international environmental law being ‘an art and a craft’, rather than a panacea.Footnote 10 The respective approaches of Sand and Bodansky overlap considerably. This article merges the two to analyze the effectiveness of the LRTAP regime and test the robustness of Sand’s and Bodansky’s criteria, focusing on three main areas.Footnote 11
Legal effectiveness
Legal effectiveness relates to compliance and to what is being complied with. High levels of compliance are indicative of behavioural change and, by association, effectiveness.Footnote 12 This approach can engage with ideas such as ambitiousness, treaty content, the environmental outcomes, and even the ‘spirit’ of the instrument.Footnote 13 Legally precise rules reduce ambiguity and highlight cases of non-compliance more easily, while the types of commitment (or regulatory framework) will exert a strong influence over whether the problem is resolved. Related to the issue of content, the legality of the instruments also contributes to effectiveness. Binding instruments are generally considered the most effective. However, soft law instruments have political and legal significance, allowing states to participate in times of uncertainty (lack of political agreement, for example), thereby increasing the potential for behavioural change.Footnote 14
Institutional effectiveness
Institutional effectiveness focuses on the ability of the regime to create a cooperative approach, which promotes and assists states in reaching compliance.Footnote 15 Lack of cooperation, and inadequate means to increase compliance through rules, procedures, and institutions for reporting, monitoring and review, dispute settlement, and non-compliance, will ultimately undermine effectiveness.Footnote 16
Normative effectiveness
The normative approach is an assessment of the regime’s achievement in, or reflection of, normative principles such as justice, fairness and participation.Footnote 17 Procedural justice is viewed as the basis for legitimacy, which should produce greater compliance.Footnote 18 Such an analysis can consider the legitimacy and fairness of the rules concerning participation and decision making, the participation of all the relevant states, the assignment of implementation responsibilities, the degree of burden sharing, and financial assistance.Footnote 19 Included in this is the extent to which the regime empowers domestic supporters through, for example, a role in decision making or the policy process. This is a way of increasing legitimacy, improving the quality of decisions, and achieving a greater degree of consensus.Footnote 20
2. EXAMINING THE LEGAL EFFECTIVENESS OF THE LRTAP REGIME
2.1. The Commitments and Compliance
During the negotiations for the CLRTAP, polluting states staunchly opposed the sulphur dioxide (SO2) reduction targets that were needed to control acid rain.Footnote 21 The compromise reached to ensure their participation resulted in a ‘loose’ framework conventionFootnote 22 that, as Rosencranz noted, contained ‘no numerical goals, limits, timetables, abatement measures or enforcement provisions’.Footnote 23 Instead, the Convention laid out the procedural framework, with significant provisions on ‘notification and consultation, research, use of control technology, monitoring of pollutants and rainfall’.Footnote 24 In Article 2, the contracting parties agreed in vague and flexible language that ‘taking due account of the facts and problems involved’, they were ‘determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution’.Footnote 25
As a significant ‘first step’ towards firm obligations to control and reduce air pollution and LRTAP,Footnote 26 the majority of the original parties have adhered to the vague general obligation expressed in Article 2 – but assessing compliance poses some difficult analytical problems. Ultimately, the successful adoption of the Protocols has determined the significance and effectiveness of the Convention.Footnote 27 The Protocols are characterized by good levels of compliance (see Table 1 in the Appendix to this article).Footnote 28 From a simple compliance perspective, the regime is effective because the contracting parties in general have fulfilled their commitments, bar a few cases of non-compliance concerning data reporting and the reduction of individual pollutants. The commitments on nitrogen oxide (NOX), volatile organic compounds (VOCs), and persistent organic pollutants (POPs) have proved difficult for some states to achieve.Footnote 29 The Protocols were recently amended; this is addressed in Section 2.4.
Implementation and the importance of the European Union
European Union (EU) air pollution law was partly adopted to fulfil the commitments under the LRTAP regime.Footnote 30 The EU (formerly the European (Economic) Community (EEC/EC)) acceded to the majority of the Protocols, but lacked the required support to approve the 1985 Sulphur Protocol IFootnote 31 and the 1991 VOCs Protocol.Footnote 32 After the 1992 Maastricht Treaty,Footnote 33 EU policy on the environment became the driving force in the internal EU context, with the LRTAP instruments supplementing this process.
Law and policy relevant to LRTAP did exist in the EU prior to the adoption of the CLRTAP in 1979Footnote 34 and, during the period 1980 to 1992, the EU legislated on a broad range of pollutants, with a focus on pollution sources.Footnote 35 Two Directives from this period were specifically linked to the LRTAP regime: Directive 84/360/EEC on the Combating of Air Pollution from Industrial Plants (Air Framework Directive),Footnote 36 which created emission limit values for new plants, and Directive 88/609/EEC on the Limitation of Emissions of certain Pollutants into the Air from Large Combustion Plants (Large Combustion Plants Directive),Footnote 37 which set reduction targets for existing plants. The decentralized approach taken in these Directives was in keeping with the 1985 Sulphur Protocol I,Footnote 38 and was a progenitor to national emissions ceilings.Footnote 39 After the major milestone of Directive 96/62/EC on Ambient Air Quality Assessment and Management (Air Quality Framework Directive),Footnote 40 there was a notable growth in EU air pollution legislation. Four daughter Directives to the Air Quality Framework Directive created limit values and target values for a range of pollutants (1999–2004),Footnote 41 and Directive 2001/81/EC established National Emission Ceilings for Certain Atmospheric Pollutants.Footnote 42 In 2001, the Commission launched the Clean Air for Europe (CAFE) Programme,Footnote 43 which produced a Thematic Strategy on Air Pollution.Footnote 44 Consistent with this strategy was Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe,Footnote 45 and Directive 2008/1/EC concerning Integrated Pollution Prevention and Control (IPPC Directive).Footnote 46
EU law has certainly gone beyond the boundaries of the LRTAP regime, but its developments still reflect the spirit of the regime, particularly the 1999 Gothenburg ProtocolFootnote 47 in the recent period.Footnote 48 There is a significant degree of overlap and linkage between the EU and the LRTAP regime in terms of the institutions, participating states, the actors involved, and the norms and rules.Footnote 49 The latter still has a significant advantage in terms of its broader international membership.Footnote 50 Nonetheless, the EU has made substantial contributions to the effectiveness of the LRTAP regime.
2.2. The Use of Binding/Non-binding Instruments
Non-binding instruments played a key role in the regime’s early formation. For example, Sweden and a group of like-minded states agreed to reduce their sulphur emissions by 30% (the ‘30% Club’) in the Declaration on Acid Rain 1984.Footnote 51 Motivated by the slow progress at the international level and their desire to move forward on the effects of acid rain, the 30% Club gained political leverage and shamed uncooperative states. It significantly influenced the development of the 1985 Sulphur Protocol I,Footnote 52 which replicated the 30% commitment.Footnote 53 However, when a similar approach was taken four years later with the Sofia Declaration on 30% Reduction of NOX Emissions,Footnote 54 adopted concurrently with the 1988 NOX Protocol,Footnote 55 the limitations of non-binding instruments became apparent. Only three of the 12 states that adopted the Sofia Declaration achieved the 30% reduction in NOX emissions by 1998, and the Declaration had little effect on NOX reductions. Furthermore, it did not influence the regime’s implementation strategies, which were advancing towards national emissions ceilings (NECs) by the early 1990s and no longer required generic across-the-board reductions for NOX.Footnote 56 The difference in impact between the Declaration on Acid Rain and the Declaration on 30% Reduction of NOX Emissions may well be explained by their different origins. The former was an attempt led by Scandinavian states to move the regime towards binding commitments, whereas the latter was heavily backed by non-governmental organizations (NGOs). This may explain why state incentives to comply were low.Footnote 57
In terms of effectiveness, the LRTAP regime conforms with Bodansky’s assertion that non-binding instruments tend to be used at regime formation, and can contribute to ‘learning by doing’.Footnote 58 However, there is evidently a trade-off between legality and participation. As the regime has evolved, binding instruments have produced the more sophisticated elements (NECs, for example). EU law has also firmed up the LRTAP commitments, for the EU Member States at least. Contrasted to this is the lack of participation by some of the countries of Eastern Europe, the Caucasus and Central Asia (EECCA), which may be better served by soft law instruments. These could maintain the regime’s profile and provide the states with political leverage to gain financial and technical support from the advanced economies. To some extent, this is now occurring through the establishment of the EECCA Coordinating Group.Footnote 59 Each case is singular and involves specific trade-offs, which makes it extremely problematic to evaluate how effectively a regime uses non-binding instruments, or whether the binding/non-binding ratio is optimal. Nevertheless, it would appear that, on balance, the regime has benefited from the use of binding instruments, although there is scope to use non-binding instruments more effectively to foster participation in the regime.
2.3. The Precision of the Rules
The Convention and its Protocols moved from vagueness to precision as the regime matured. The Convention’s substantive provisions are mandatory, yet represent general principles as opposed to firm commitments as a result of the presence of qualifying clauses and soft law expressions. This generates vagueness: it is difficult to ascertain specific cases of non-compliance.Footnote 60 However, imprecision is also an asset, for it provides flexibility and facilitates participation in the Convention process. From this perspective, the Convention arguably is effective not despite but because of its vagueness.Footnote 61
The Protocols contain precise rules and fewer qualifying expressions. The 30% Club viewed binding commitments as providing the best outcome for the environment. In Article 2 of the 1985 Sulphur Protocol IFootnote 62 states agreed to reduce ‘national annual sulphur emissions or their transboundary fluxes by at least 30 per cent’ of 1980 levels.Footnote 63 The shift to firm reduction commitments raised the stakes and resulted in parties deciding not to accede to the Protocol, including a number of key states such as Poland, Spain, the United Kingdom (UK), the United States (US), and Yugoslavia. However, although legally precise, scholars have questioned the Protocol’s real impact. It has been suggested that the 30% target was achieved primarily through de-industrialization and changes in energy policy unrelated to the parties’ implementation efforts.Footnote 64
Subsequent Protocols developed specification standards in the form of recommendatory Annexes. These became progressively mandatory and stringent in nature. The regime has attempted to prioritize precision over vagueness but, inevitably, flexible standards have been deployed when negotiating parties could not agree on firm rules. Yet, overall, greater precision has increased effectiveness by reducing uncertainty and making cases of non-compliance more readily observable.Footnote 65 The regime conforms to the idea of trade-offs, with a core group prepared to move forward on emissions reductions even though a sizeable number of states may not ratify the Protocols. This may be a better outcome for the environment than the alternative – namely the possibility that no international standards are adopted.
The regime adopts a cautious approach towards the application of international environmental law principles to LRTAP. The Trail Smelter Arbitration is a precedent;Footnote 66 the emergence of the ‘no harm’ principle contained in Principle 21 of the Stockholm Declaration 1972Footnote 67 had a clear influence (repeated in the CLRTAP Preamble), but more recent principles feature less prominently. The principle of common but differentiated responsibilitiesFootnote 68 and the concept of sustainable developmentFootnote 69 are under-represented in the legal agreements. The provisions on information exchange and consultation notwithstanding, formal obligations to undertake environmental impact assessments are absent.Footnote 70 The regime has incorporated precautionary approaches in the Preambles to the Protocols from 1994 onwards.Footnote 71 Because the science is well established for the specified pollutants, scientific uncertainty is now rarely cited as a reason for delaying action on LRTAP.Footnote 72
Environmental principles mostly emerged after the CLRTAP was adopted. Later Protocols failed to integrate them substantially. This results in a significant degree of ambiguity concerning their role, and influences implementation strategies. Nonetheless, the regime has been relatively successful in using precise rules and a narrow understanding of environmental principles. However, it is argued that the incorporation of the remaining environmental principles would reduce ambiguity and therefore increase effectiveness.
2.4. Implementation Strategies
The LRTAP regime has developed a firm basis in command-and-control techniques.Footnote 73 In the 1979 Convention, states could only agree on a generic performance standard for national control measures based on the concept of best available technology economically feasible (the BATEF standard).Footnote 74 The 30% reduction target applicable to all states in the 1985 Sulphur Protocol IFootnote 75 was considered too inflexible to achieve higher sulphur emissions reductions, although the target was achieved.Footnote 76 Technology-specific and environmental quality requirements were necessary, but politically difficult to achieve. Signatory states needed to balance sovereignty concerns and the accommodation of national industries and interests with the need for a level playing field and a greater focus on environmental vulnerability. The argument shifted in favour of standardization and environmental quality, but the tension has never been fully resolved.
The 1988 NOX ProtocolFootnote 77 included the ‘critical loads’ concept, whereby European areas are given a ‘quantitative estimate of the exposure to one or more pollutants below which significant harmful effects on specified sensitive elements of the environment do not occur according to present knowledge’.Footnote 78 The 1994 Sulphur Protocol IIFootnote 79 and the 1999 Gothenburg ProtocolFootnote 80 integrated these environmental quality standards and introduced a general commitment not to exceed critical loads in the long term.Footnote 81 Critical loads are applied to the management of acidity and nutrient nitrogen (sulphur and nitrogen). The ‘critical levels’ concept was also developed. This focuses on the health and environmental effects of exposure to pollutant concentrations in the atmosphere, an approach used for ground-level ozone, particulate matter, and ammonia.Footnote 82 For the remaining pollutants, the regime has used traditional approaches of bans, phase-outs, limits, and restricted use, mainly as a result of the availability of alternatives.Footnote 83
Haas and McCabe argue that the critical loads approach was ‘virtually revolutionary in diplomacy’,Footnote 84 because it attempted to assign national targets according to environmental vulnerability. The translation into policy occurred through integrated assessment models, such as the Regional Acidification Information System (RAINS) models.Footnote 85 The models were developed in close cooperation with scientists and policy makers, and had ‘considerable credibility’.Footnote 86 Institutional support through workshops of the Working Group on Strategies, together with the use of three models, fostered respect for the process and contributed to an impression of flexibility.Footnote 87
However, although RAINS modelled least cost-reduction scenarios, and the 5% most sensitive areas in each grid of the critical loads map were excluded from the reduction targets on the ground of costs,Footnote 88 the states negotiated a weaker general emissions reduction target in the 1994 Sulphur Protocol II, again citing costs. The Protocol aimed to reduce the gap between critical loads and emissions by 60% (60% gap closure).Footnote 89 Gap closure was referred to again in the 1999 Gothenburg Protocol. Because of these compromises, the regime could be criticized for being biased towards economic concerns, rather than achieving optimal environmental outcomes.Footnote 90 The European Commission was so dissatisfied with the Gothenburg Protocol’s emissions reduction commitments, for example, that it did not sign it.Footnote 91 The EU acceded in 2003, after the adoption of more stringent NECs in Directive 2001/81/EC,Footnote 92 reasoning that implementation of the Gothenburg Protocol would ‘contribute to achieving Community goals for protection of the environment and human health’.Footnote 93 Scientific uncertainty regarding critical loads also remains an issue, and precaution is needed when considering the exceedance boundaries.Footnote 94 Despite these concerns, the critical loads approach remains a superior method to the politically unpalatable across-the-board imposition of emissions reduction. If the gap between emissions and critical loads is successfully closed, it will be a remarkable achievement.
The 1988 NOX Protocol had a non-mandatory Technical Annex on Control Technologies. Subsequent Protocols attempted to develop mandatory standards on control technologies and measures, alongside the mandatory emissions limits and content levels. Many of these were based on what states had agreed to elsewhere,Footnote 95 or on domestic/EU legislation. The BATEF standard, which integrates cost effectiveness and technology, moulded these developments. A tangible impact of the standard is the regime’s preference for end-of-pipe technical solutions (for example, the catalytic converter).Footnote 96
During the early period of the regime, this standard offered a viable route to achieving reductions, but the limits are being reached.Footnote 97 The BATEF standard has attracted criticism because it enables states to prioritize economic considerations over environmental outcomes, depending on the weighting. It may thus serve to justify inaction by those unwilling to invest in pollution abatement measures.Footnote 98 The shift to the term ‘best available techniques’ (BAT) has somewhat diffused this criticism, and commitments to promote renewable energy were finally included in the 1994 Sulphur Protocol II.Footnote 99 Kelly and his co-authors suggest that to remain effective, the LRTAP regime is likely to need to embrace ‘alternative approaches to emission reductions’.Footnote 100 Furthermore, as Kütting has noted, the ‘predominance of fossil fuels’ in the UNECE economies has not been significantly questioned.Footnote 101
The 1999 Gothenburg Protocol expanded implementation strategies by simultaneously attempting to regulate sulphur, NOX, VOCs and ammonia emissions (hence, it has been described as the Multi-Effect Protocol). Flexible approaches to reductions were tentatively included, such as the recommended VOC reduction-offsetting scheme.Footnote 102 There are no provisions for international emissions trading, although some states have implemented national schemes.Footnote 103 The Executive Body (EB) has issued guidance on the various options, including the possibility of achieving co-benefits on climate change with the EU emissions trading scheme.Footnote 104 The Protocol requires states to phase out market-based incentives for the regulated pollutants (such as tax exemptions and subsidies).Footnote 105 Thus, to an extent, structural issues are now being addressed.
The recent Protocol amendments have not diverged from this regulatory approach. The 2009 POPs Protocol amendments put in place further restrictions and regulate additional POPs, provide new emission limit values for waste incineration, and provide BAT guidance to control emissions.Footnote 106 The 2012 Heavy Metals Protocol amendments provide stricter emission limit values for the specified sources, and extend the source categories.Footnote 107 The 2012 Gothenburg Protocol amendments set new 2020 emissions ceilings for existing pollutants as well as for PM and black soot.Footnote 108 Economic uncertainty and austerity, however, led states to water down their commitments in line with economic projections to 2020. The 2012 Gothenburg Protocol amendments do not appear to have gone much further than business-as-usual.Footnote 109 As Ågren notes, it is ‘a great disappointment that the overall level of ambition is still far from sufficient to adequately protect health and the environment’.Footnote 110
There is no definitive answer to which regulatory approach is more effective (command-and-control or market-based), nor whether it is better to have a regulatory mix. As Bodansky notes, the problem ‘lies less in formulating desirable policy options than in getting these policies adopted and implemented’.Footnote 111 For this reason, assessing the effectiveness of the commitments is difficult because ultimately their success relies on political will. This analysis points to a certain degree of muddling through, and highlights the trade-offs made to achieve agreement. States cannot be prevented from negotiating weaker reduction commitments, and the effects-based approach to LRTAP was not a complete solution to state ambivalence. The regime has an unfortunate dynamic whereby the required emissions reductions are perhaps too lenient for developed states, but are perceived by the states with economies in transition (EIT) as complex and costly to implement.Footnote 112 This is particularly concerning if we recall that the LRTAP regime is weak in terms of recognizing common but differentiated responsibilities. Thus, in adopting relatively advanced implementation strategies, a degree of state participation may have been sacrificed.
3. EFFECTIVENESS AND INSTITUTIONAL DESIGN OF THE LRTAP REGIME
3.1. The Core Institutions
The core institutional feature established by the CLRTAP was the EB, with its subsidiary bodies and Bureau (an inter-sessional forum).Footnote 113 The European Monitoring and Evaluation Programme (EMEP) has also been a key supporting body.Footnote 114 The Executive Secretary of the UNECE is designated the Secretariat, with the Secretariat functions provided by the Air Pollution Section of the UNECE Environment and Human Settlement Division.Footnote 115 Currently there are three subsidiary bodies to the EB: (i) the Working Group on Effects (WGE);Footnote 116 (ii) the EMEP Steering Body,Footnote 117 with four task forces and four EMEP Centres;Footnote 118 and (iii) the Working Group on Strategies and Review (WGSR), the principal negotiating body.Footnote 119 The regime has a well-developed institutional framework, is supported by a range of subsidiary bodies, and has established links with international institutions.
Studies focusing on the regime’s early period (the 1980s and 1990s) have viewed it as institutionally effective and dynamic.Footnote 120 Indeed, the initial institutional framework contributed to the regime’s later successes. The institutions are viewed as having aided state cooperation, consensus, and the negotiation of the Protocols.Footnote 121 The WGSR has been particularly important for the interaction of science and policy.Footnote 122 The subsidiary bodies have benefited from a relatively good exchange of information through national reporting, which has aided transparency. This has enabled methodological harmonization and the development and implementation of the critical loads/levels approach.Footnote 123 The regime is considered one of the most ‘science-based’ in existence, and could be held up as a ‘model’ in this regard.Footnote 124
A limitation of the regime is that no central funding mechanism exists. This arrangement has not kept pace with the regime’s evolution and possibly jeopardizes its institutional effectiveness. EMEP has a skewed funding system that relies mainly on mandatory contributions from a few lead states (such as France, Germany, and the UK). The majority of non-EMEP activities have been funded by donor countries, or through the UNECE’s limited resources. The Secretariat relies on these resources.Footnote 125 It has been ‘overworked’ and has struggled at times to attend meetings in host states.Footnote 126 Despite these limitations, it has reportedly performed its functions relatively successfully.Footnote 127 The funding issue reflects the reluctant agreement reached during the Convention negotiations and the state-centric approach taken by the parties.Footnote 128 Although aware of this weakness, in the early 2000s the parties failed to create a centralized funding mechanism to distribute costs more fairly;Footnote 129 instead, all parties were asked to contribute to the non-EMEP core activities.Footnote 130 To this end, the EB provided guidelines that followed the allocation methods for the revised contributions to the 1984 EMEP Protocol.Footnote 131 However, these measures were inadequate and, in 2010, the new CLRTAP Long-term Strategy and Implementation Action Plan reiterated the need for adequate funding of non-EMEP core activities and of the Secretariat.Footnote 132 Estimates in the 2014–15 Implementation Work PlanFootnote 133 indicated a budget shortfall of at least US$1 million. The regime remains underfunded, and is arguably less effective consequently.
Funding weaknesses may be problematic if the regime attempts to create institutional connections between other MEAs, or conduct outreach and knowledge-sharing activities in the wider UNECE area/developing world (as promoted by the Global Atmospheric Pollution (GAP) Forum).Footnote 134 With regard to Europe, this issue has created fewer difficulties. For example, in 1989 the UNECE and the Baltic Marine Environment Protection Commission (HELCOM) entered into a Memorandum of Understanding for cooperation with regard to data on airborne pollution.Footnote 135 Furthermore, scientific collaboration has occurred through involvement in the Task Force on Hemispheric Air Pollution, the United Nations Environment Programme (UNEP), and the GAP Forum.Footnote 136 According to Reis and his co-authors, the Task Force on Reactive Nitrogen has developed ‘partnerships with UNEP and the Organization for Economic Cooperation and Development, as well as the biodiversity and water conventions’.Footnote 137 Such efforts need to be intensified; this will require enhanced cooperation at a high institutional level and, consequently, better funding.
When considering the criteria for effectiveness, the CLRTAP highlights that although we can take a holistic approach, not all criteria are equal – successfully formed and functioning institutions are crucial. On a basic level the institutions function well; however, opportunities for expanded activities are limited, and this may reduce effectiveness in the long term.
3.2. International Implementation Procedures
Dispute settlement
The Convention contained no process for third-party settlement, and only required parties to seek a solution by negotiation or by any other acceptable method.Footnote 138 This formulation was repeated verbatim in the Protocols up to the 1994 Sulphur Protocol II, which added the possibility of submitting disputes to the International Court of Justice (ICJ). If states cannot agree on the mode of dispute settlement, they are required to submit the dispute to a conciliation commission if requested by a party to the dispute. The commission may make a recommendatory award if appropriate, to be respected in good faith.Footnote 139 However, as is the case with numerous MEAs, no formal disputes have arisen.Footnote 140 The procedure possibly acts as an incentive to avoid disputes and contributes to the culture of consensus. Alternatively, it may be that dispute settlement provisions play a minimal role in determining the effectiveness of the regime.Footnote 141
Reporting, review, and non-compliance procedures
Reporting contributes to the regime’s effectiveness as it promotes transparency and is an integral component of the compliance procedures. Initially framed as a requirement to exchange available information in Article 8 of the Convention, the 1985 Sulphur Protocol I established dual reporting commitments with regard to national emissions data and information on the programmes, policies and strategies undertaken to achieve the Protocol’s commitments.Footnote 142 As implementation strategies became more complex, states were required to report on the implementation of their commitments under the Protocols in general.Footnote 143 The annual national reports and the ‘major reviews’ of Strategies and Policies for Air Pollution Abatement, which are undertaken every four years, can be used for naming-and-shaming, although they are not intended for this purpose.Footnote 144 Data transparency is further aided by the collaboration between the EMEP Centre on Emission Inventories and Projections and the EEA, which enables the publication of the Air Pollutant Emission Inventory Guidebook (formally CORe INventory AIR),Footnote 145 and also through the European Pollutant Release and Transfer Register (E-PRTR).Footnote 146 The register collects data for a range of pollutants (such as those resulting in LRTAP and climate change) by industrial source.
The Convention provided no clear non-compliance procedures. A major development was the establishment of the Implementation Committee (IC) by the 1994 Sulphur Protocol II, which became the compliance procedure for all Protocols.Footnote 147 It was modelled on the IC of the Montreal Protocol on Substances that Deplete the Ozone Layer,Footnote 148 which was developed in 1990–92.Footnote 149 Its functions include (i) the review of compliance with reporting obligations; (ii) consideration of submissions or referrals,Footnote 150 with the adoption of any necessary reports or recommendations; (iii) the preparation of detailed compliance reports on specific obligations; (iv) consideration of systemic compliance issues; and (v) the production of annual compliance reports for the EB, with recommendations if necessary. The EB may then adopt a decision on the non-compliance.Footnote 151
The IC takes a facilitative and cooperative approach to non-compliance. Naming-and-shaming happens in the EB decisions, which adopt language such as ‘express disappointment’ and ‘note with concern’.Footnote 152 EB decisions are likely to have the most impact at state level, while the use of official international diplomatic routes and publicity on the UNECE website may have a broader, if modest, outreach to the public and the media. The activities of the IC notably improved the levels of reporting after its first compliance reviewFootnote 153 – for example, reporting for the 1988 NOX Protocol increased from 82% in 1998 to 99% in 2003.Footnote 154
Serious cases of non-compliance have been rare, although the IC has dealt with some lengthy periods of non-compliance by individual states, which have attracted repeated EB decisions (see Table 1 at Appendix below). It is highly unlikely that the naming-and-shaming approach will harden to include sanctions,Footnote 155 while a further strengthening of the reporting requirements will only go so far in achieving compliance with the reduction commitments.Footnote 156 In Eastern Europe, EU expansion is bringing greater indirect incentives for compliance, as states that do not comply with the LRTAP-related Directives may be referred to the European Court of Justice (ECJ).Footnote 157 Most scholars have concluded that the IC is effective, compliance levels have improved, and most states implement the IC’s recommendations.Footnote 158
4. THE NORMATIVE EFFECTIVENESS OF THE LRTAP REGIME
4.1. Legitimacy – Rules on Decision Making and Participation
According to Bodansky, the legitimacy of international environmental law is derived through consensus, with states negotiating rules that they believe are fair and ‘in their self-interest’, rather than through a recognition of ‘the rulemaking authority of international institutions’.Footnote 159 Based on state practice, the regime has high legitimacy because states have been committed to the process for the past 35 years, during which time significant legal codification has occurred.
Decision making is a key determinant of whether states view the process as legitimate.Footnote 160 Decision making by consensus provides greater legitimacy than majority voting as common ground between states is found. However, it may slow the rate of response to new developments and may lead to lowest-common-denominator agreements, which are unambitious or ambiguous if they attempt to include a range of competing state positions.Footnote 161 Majority voting provides greater flexibility, but can lead to states opting out if allowed to.Footnote 162 The CLRTAP resulted from consensus-based decision making, and embedded this approach.Footnote 163 Although the EB decided to adopt the UNECE rules of procedure, which operate by majority vote, for most of their history the Convention bodies have decided by consensus to further the spirit of cooperation (although unanimity is not required).Footnote 164 This approach did not achieve full ratification levels, but it secured the participation of the willing, avoided conflict and therefore increased legitimacy.Footnote 165 It did not prevent the 1980s Protocols from being considered lowest-common-denominator agreements, although this is understandable given the Cold War context and the reluctance by the polluting states to undertake international commitments.Footnote 166 In 2010, the EB adopted new rules of procedure for its sessions, which suggest that majority voting may play an increased role in the regime.Footnote 167
Participation is limited to the Member States and states with consultative status to the UNECE.Footnote 168 States must be a party to the CLRTAP to participate in the Protocols. UNECE plays an important facilitative role and arguably provides a greater sense of legitimacy and support to the Convention process.Footnote 169 The symbolic and political value of the East–West membership was a great asset.Footnote 170 The recognition of the EU (then the EEC) as a signatory to CLRTAP and subsequent Protocols was considered a diplomatic breakthrough and a significant episode of détente in the Cold War.Footnote 171
From the 1990s onwards, as the problem of hemispheric air pollution (POPs, mercury, ozone, and particulate matter) gained prominence,Footnote 172 the possibility was mooted to amend the legal instruments so that states outside the UNECE region (such as the Eastern Asia states) could participate in the regime. However, achieving consensus on this issue was viewed as unlikely and time-intensive.Footnote 173 The UNECE membership criterion has possibly been a limiting factor in the post-Cold war era, and highlights the need for global rather than regional approaches.Footnote 174 The 1998 POPs ProtocolFootnote 175 had a substantial awareness-raising impact and was a contributing factor to the successful adoption, in 2001, of the Stockholm Convention on Persistent Organic Pollutants.Footnote 176 The 1998 Heavy Metals ProtocolFootnote 177 influenced the 2013 Minamata Convention on Mercury, which addresses the intercontinental transport of mercury.Footnote 178 The regional agreements, programmes and action plans that were developed through UNEP in Asia, Africa, Latin America, and the Caribbean, after the 1992 United Nations Conference on Environment and Development (UNCED or Rio Earth Summit)Footnote 179 have broadly treated the CLRTAP as an exemplary system. The main components for emulation are cooperation and the need for adequate air pollution monitoring.Footnote 180 The UN International Law Commission (ILC) has recently begun preparatory work for global draft articles on the ‘protection of the atmosphere’; the CLRTAP features in this work.Footnote 181 If the CLRTAP participation rules are a limitation, they have not precluded the parties from promulgating international law in other forums. As a precedent, the regime has contributed to the adoption of global treaties and rules on air pollution.
4.2. State Participation
Not all parties to the CLRTAP have ratified every Protocol. By 1988, the Convention had 35 signatories and 32 parties.Footnote 182 An important event in the regime’s history was the string of accessions to the Convention by the newly independent states (NIS) in Eastern Europe during the early 1990s. With the break-up of the Soviet Union (USSR) and Yugoslavia, there are now 51 parties, including nearly every Western European state, Turkey, the majority of the EECCA states, the US, and Canada.Footnote 183 A smaller group has ratified the Protocols. The advanced economies of Western Europe have ratified all, or nearly all, of the Protocols. The smaller economies have selectively ratified, primarily because of concerns over their stringency, the cost of compliance, and the impact on their industrial development (Ireland and Greece, for example). A small number of states (such as Turkey) have not ratified any pollution-specific Protocols. However, all of the Protocols have entered into force, which is an exceptional achievement. Hopefully, the recent amendments will achieve a similar level of support.
There is a distinct North American approach to LRTAP because of the continent’s geography, of which the CLRTAP is a component.Footnote 184 The US and Canada have selectively ratified the Protocols, preferring to find bilateral solutions.Footnote 185 The US has also engaged in agreements with Mexico.Footnote 186 In general, US domestic politics dictated action on LRTAP in North America, although the regime may have contributed to awareness raising.Footnote 187 Bilateral agreements exist also in Europe, for example, between Finland and Russia.Footnote 188 Moreover, the development of EU environmental law has created overlapping obligations for the Member States (see Section 2.1 above). Participation in the regime therefore should be seen as nested within a framework of international and European bilateral law and policy, driven by the national context.
Efforts to include the EIT/EECCA countries have achieved mixed results. The EU has had some influence on participation levels with regard to the Protocols. Evidence suggests that ratification by Eastern European countries is often influenced by impending EU membership.Footnote 189 Turkey, a long-standing candidate country, has barely engaged with the regime. In its view, ‘due regard’ should be given to its status as a developing country, a position whereby it exempts itself from accepting international standards.Footnote 190 Russia, Belarus and Ukraine ceased to ratify the Protocols created after 1990, while Kazakhstan, Kyrgyzstan and the states of the Southern Caucasus have only ratified the Convention. The end of Cold War diplomacy, which had secured Soviet participation, partly explains these outcomes. They are also a legacy of the USSR’s sole focus on controlling emissions near the European border. Furthermore, LRTAP was of minor importance to the NIS, and the leading European states were indifferent to LRTAP contained in the Eastern UNECE regions. Consequently, the less developed states in the Eastern region did not receive adequate financial assistance, technology transfer or joint implementation.Footnote 191 Despite gaining around 15 new parties to the CLRTAP, a third of UNECE members have not engaged with the Protocols; however, their decision not to participate has come at a price: a loss of influence in the regime, particularly in the case of Russia.Footnote 192 State participation is a key area where the regime needs to make substantial improvements. This issue has undermined environmental effectiveness, as these states are subject only to minimal obligations to control, reduce and prevent LRTAP.
4.3. Assignment of Implementation Responsibilities and the Degree of Burden Sharing
The CLRTAP was intentionally liability-neutral and the extent to which responsibility has been addressed is open to interpretation.Footnote 193 A key point for investigation is whether states with the highest capacity and inclination to comply carry the greatest burden, as this arguably strengthens the regime’s effectiveness.Footnote 194 Initially this was not the case: the early Protocols allocated the same emissions reduction percentage to all states. As the regime developed, the emergence of differentiated targets attempted to reconcile economic considerations with environmental vulnerability and political will. The development of flexible emissions management areas for VOCs and sulphur fostered participation by Canada and Norway, and enabled them to focus on LRTAP with less stringent commitments for the rest of their territories. Although the development of NECs enabled greater implementation responsibilities to be assigned to Western European states, the commitments for the highly polluting EIT states do not conform with the idea of burden sharing, as the latter lack both the capacity and the inclination to comply.Footnote 195
The 1991 VOCs ProtocolFootnote 196 and the 1994 Sulphur Protocol IIFootnote 197 introduced differentiated targets. For example, those states with the greatest inclination and capacity to reduce sulphur emissions, such as Germany and the Nordic states, took an ambitious NEC equivalent to a reduction of around 80% of 1980 levels by 2000. France and the UK obtained a ten-year extension to achieve a similar reduction. Highly polluting EIT states also received additional time, but cost efficiency and environmental criteria apparently overrode considerations of capacity and inclination. For example, Poland needed to reduce emissions by around 66% to reach its 2010 ceiling. RAINS modelling had demonstrated that large reductions in Poland would achieve the greatest cost efficiency.Footnote 198 However, in the early 1990s, the Polish economy was relatively weak (as were most of the NIS), whilst the post-Communist government faced significant governance challengesFootnote 199 and would have struggled to invest more in order to reach its target without increased donor support. The fairness of the targets was therefore questionable, and many highly polluting EIT countries chose not to participate. Whether this justifies Poland’s continued ambivalence to the LRTAP regime in 2014, after ten years of EU membership, is a different matter.
Differentiated targets have become a feature of the regime, with mixed results in terms of ratification. The 1998 Heavy Metals ProtocolFootnote 200 allowed the EIT countries ten instead of five years in which to achieve compliance with the product control measures.Footnote 201 The 2012 amendments of the Heavy Metals ProtocolFootnote 202 and the 1999 Gothenburg ProtocolFootnote 203 introduced further differentials to appeal specifically to new parties to the Protocol. The Gothenburg Protocol affords new parties an extension for the development of implementation plans with a final implementation deadline of 31 December 2030.Footnote 204 The 2012 amendments to the Heavy Metals Protocol contained similar extensions for the implementation of BAT and limit values to existing stationary sources.Footnote 205 Such differential targets may produce better environmental outcomes in the long term if these measures are sufficiently attractive to prospective parties.
Financial assistance
A cost-sharing mechanism or specific provisions on the transfer of technology to the non-EU EECCA countries could offset the weaknesses of the regime’s regulatory approach, increase ratification and the implementation of the Protocols, and produce better environmental outcomes.Footnote 206 These have not been established, even though the EB has explored the possibility of financial mechanisms. There is a limit to the regime’s ability to foster cooperation. Since the mid-1990s, the parties have been invited to contribute to the Trust Fund so that the participation of one government representative from each of the EIT states can be funded;Footnote 207 this appears to have increased their participation in the negotiations.Footnote 208 The 2010 Long-term Strategy reiterated the need for adequate funding to improve participation, and Decision 2012/26 called for a high-level meeting on actions to promote better air quality within the countries of EECCA.Footnote 209 The creation of the EECCA Coordinating Group in 2011, which focuses on the Russian sphere of influence, is a significant step towards creating a dual process that may lead to greater participation. Belarus, Russia, Kazakhstan, and Moldova have signalled their intention to become parties to the later Protocols,Footnote 210 but Azerbaijan, Uzbekistan, Tajikistan and Kyrgyzstan are unlikely to do so in the short term.Footnote 211
Donor countries, EU-sponsored projects, and the UN Development Account (UNDA) provide support for projects in the EECCA countries. These projects have concentrated on the creation of emissions inventories, monitoring, and the ratification of the most recent Protocols.Footnote 212 Although a useful first step, programmes with greater ambition are needed. The absence of burden sharing through a funding mechanism or a formal system of joint implementation to aid the least developed states in the UNECE area has reduced effectiveness.Footnote 213
4.4. The Empowerment of Domestic Stakeholders
Prior to the 1999 Gothenburg Protocol, the regime contained no specific provisions on public access to information. This Protocol required states to ‘promote’ the provision of information to the general public on issues such as national annual emissions, compliance information, pollution levels, and the health and environmental effects of the pollutants.Footnote 214 While this was a significant development, it is somewhat undermined by its weak phraseology. The deficiency in provisions on public access to information arises partly out of the East–West politics of the early period of the LRTAP regime and the culture of industrial secrecy of the USSR. Moreover, environmental issues are politically sensitive and states may wish to control the flow of information. Nonetheless, as a result of the activities of the regime and the current emphasis on transparency – as embodied by the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental MattersFootnote 215 and its implementation in UNECE Member States including the EU – there is now a large amount of reported emissions data publically available.
Intergovernmental organizations, NGOsFootnote 216 and industrial groups may attend meetings as observers, whilst NGOs must have consultative status with the UNECE to attend working group meetings.Footnote 217 The unofficial Heads of Delegations meetings that take place during the negotiations of the Protocols have been ‘exclusive’,Footnote 218 and NGOs do not appear to have participated as observers of the work of the IC.Footnote 219 NGOs have a limited influence and no role in decision making. However, their involvement in the final negotiations might not produce better outcomes; it could slow the negotiation process or reduce the opportunities for diplomacy.Footnote 220 Domestic successes for NGOs occurred mainly in the early years of the regime, and some NGOs lobbied intensely for the ratification of the legal agreements.Footnote 221 The limited resources of NGOs, combined with the emergence of other environmental problems (such as climate change) and the increased role of the EU, saw NGOs switch their focus, although they have maintained an interest.Footnote 222 There is very little public participation in the regime.Footnote 223
The regime’s engagement with industry groups in respect of the BATEF standard has produced some notable outcomes. Technical seminars brought together members of the industrial, scientific and policy-making communities, and enabled innovative technologies to be demonstrated as technically and economically feasible, thus aiding their deployment.Footnote 224 Industry groups have also been regular observers at LRTAP meetings and seminars.
The regime was the major source of information on LRTAP in the 1980s, although much of this information was inaccessible to the public. The internet may have increased accessibility, particularly in highly developed European states where internet usage is higher.Footnote 225 However, awareness of the Convention and LRTAP in general has declined across key stakeholder groups (the public, politicians and local NGOs, for example).Footnote 226 As Ågren has noted, the regime needs to improve communication to increase domestic knowledge and awareness of air pollution, while simultaneously raising its profile. Solutions for this problem, such as an effective communications strategy and a travel fund to aid the participation of NGOs, will require additional funding.Footnote 227 The 2010 Long-term Strategy and 2011 Action Plan has included the need for an improved communications strategy.Footnote 228 With the implementation of higher pollution reduction requirements in the next decade, success will depend more on public opinion and support.Footnote 229 It will be interesting to see whether the regime can avoid controversy, particularly in the context of European budget austerity.
Evaluating the empowerment of stakeholders is extremely difficult as much is out of the control of the LRTAP regime. However, beyond the provision of information, effective empowerment in the domestic process remains problematic.
5. CONCLUSION
The combined approaches to effectiveness taken by Sand and Bodansky constitute a useful basis for the exploration of the LRTAP regime. This study has shown that compliance, institutional, and normative effectiveness can be measured reasonably well. In general, the LRTAP regime conforms to Bodansky’s notion of ‘trade-offs’ and ‘art and craft’.
The regime faces significant challenges concerning participation, implementation procedures, empowerment of domestic stakeholders, and funding. The most recent EMEP Status Reports indicate that,Footnote 230 although there is much to be optimistic about regarding the remarkable reductions in acidification, lead pollution, and certain POPs, significant progress still needs to made on eutrophication, ground level ozone, photochemical smog, PM, and heavy metals and POPs more generally.
With the increased role of the EU and the somewhat autonomous North American framework, it is difficult to ascribe an overall level of effectiveness to the regime as there is a significant degree of overlap. Nonetheless, the regime has shown that states can agree on contentious issues and achieve results. As a model regional MEA, the regime’s replication in other regions may be problematic, especially for developing countries. States must have the necessary financial and administrative capacities to comply with this type of regime. The Convention’s basic method of creating sound institutions, and its engagement with science, has nevertheless provided a model for subsequent international treaties.
APPENDIX
Compliance with the Protocols’ Major Objectives
Open access
