The 1979 Convention on Long-Range Transboundary Air Pollution: Assessing its Effectiveness as a Multilateral Environmental Regime after 35 Years

Abstract

There is no definitive approach to assessing the effectiveness of international environmental regimes. In order to explore the regime established by the 1979 Geneva Convention on Long-Range Transboundary Air Pollution this article broadly integrates the approach to effectiveness taken by Peter H. Sand in The Effectiveness of International Environmental Agreements, and Daniel Bodansky in The Art and Craft of International Environmental Law. The article finds that compliance, institutional, and normative effectiveness can be evaluated relatively confidently. An effectiveness assessment of the long-range transboundary air pollution (LRTAP) regime indicates that, on the whole, it has helped states to reach agreement on contentious issues and achieve results in air pollution reduction. However, it faces significant challenges with regard to participation, implementation procedures, empowerment of domestic stakeholders, and funding. The article provides an in-depth and up-to-date look at the LRTAP regime, including the most recent amendments and its relationship with European Union and international law.

1. INTRODUCTION

November 2014 marked the 35^th anniversary of the adoption of the 1979 Convention on Long-Range Transboundary Air Pollution (CLRTAP),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.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.³ This includes the effects of acidification, photochemical smog, ground-level ozone, eutrophication, fine particulate matter (PM_2.5, particularly black carbon, a short-lived climate forcer), and contamination by toxic chemicals.

Scholarly opinions on the effectiveness of the LRTAP regime have varied.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.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.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).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.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’.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.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.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.¹² This approach can engage with ideas such as ambitiousness, treaty content, the environmental outcomes, and even the ‘spirit’ of the instrument.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.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.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.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.¹⁷ Procedural justice is viewed as the basis for legitimacy, which should produce greater compliance.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.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.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.²¹ The compromise reached to ensure their participation resulted in a ‘loose’ framework convention²² that, as Rosencranz noted, contained ‘no numerical goals, limits, timetables, abatement measures or enforcement provisions’.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’.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’.²⁵

As a significant ‘first step’ towards firm obligations to control and reduce air pollution and LRTAP,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.²⁷ The Protocols are characterized by good levels of compliance (see Table 1 in the Appendix to this article).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 (NO_X), volatile organic compounds (VOCs), and persistent organic pollutants (POPs) have proved difficult for some states to achieve.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.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 I³¹ and the 1991 VOCs Protocol.³² After the 1992 Maastricht Treaty,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 1979³⁴ and, during the period 1980 to 1992, the EU legislated on a broad range of pollutants, with a focus on pollution sources.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),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),³⁷ which set reduction targets for existing plants. The decentralized approach taken in these Directives was in keeping with the 1985 Sulphur Protocol I,³⁸ and was a progenitor to national emissions ceilings.³⁹ After the major milestone of Directive 96/62/EC on Ambient Air Quality Assessment and Management (Air Quality Framework Directive),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),⁴¹ and Directive 2001/81/EC established National Emission Ceilings for Certain Atmospheric Pollutants.⁴² In 2001, the Commission launched the Clean Air for Europe (CAFE) Programme,⁴³ which produced a Thematic Strategy on Air Pollution.⁴⁴ Consistent with this strategy was Directive 2008/50/EC on Ambient Air Quality and Cleaner Air for Europe,⁴⁵ and Directive 2008/1/EC concerning Integrated Pollution Prevention and Control (IPPC Directive).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 Protocol⁴⁷ in the recent period.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.⁴⁹ The latter still has a significant advantage in terms of its broader international membership.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 1984.⁵¹ 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,⁵² which replicated the 30% commitment.⁵³ However, when a similar approach was taken four years later with the Sofia Declaration on 30% Reduction of NO_X Emissions,⁵⁴ adopted concurrently with the 1988 NO_X Protocol,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 NO_X emissions by 1998, and the Declaration had little effect on NO_X 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 NO_X.⁵⁶ The difference in impact between the Declaration on Acid Rain and the Declaration on 30% Reduction of NO_X 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.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’.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.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.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.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 I⁶² states agreed to reduce ‘national annual sulphur emissions or their transboundary fluxes by at least 30 per cent’ of 1980 levels.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.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.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;⁶⁶ the emergence of the ‘no harm’ principle contained in Principle 21 of the Stockholm Declaration 1972⁶⁷ had a clear influence (repeated in the CLRTAP Preamble), but more recent principles feature less prominently. The principle of common but differentiated responsibilities⁶⁸ and the concept of sustainable development⁶⁹ are under-represented in the legal agreements. The provisions on information exchange and consultation notwithstanding, formal obligations to undertake environmental impact assessments are absent.⁷⁰ The regime has incorporated precautionary approaches in the Preambles to the Protocols from 1994 onwards.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.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.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).⁷⁴ The 30% reduction target applicable to all states in the 1985 Sulphur Protocol I⁷⁵ was considered too inflexible to achieve higher sulphur emissions reductions, although the target was achieved.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 NO_X Protocol⁷⁷ 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’.⁷⁸ The 1994 Sulphur Protocol II⁷⁹ and the 1999 Gothenburg Protocol⁸⁰ integrated these environmental quality standards and introduced a general commitment not to exceed critical loads in the long term.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.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.⁸³

Haas and McCabe argue that the critical loads approach was ‘virtually revolutionary in diplomacy’,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.⁸⁵ The models were developed in close cooperation with scientists and policy makers, and had ‘considerable credibility’.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.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,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).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.⁹⁰ The European Commission was so dissatisfied with the Gothenburg Protocol’s emissions reduction commitments, for example, that it did not sign it.⁹¹ The EU acceded in 2003, after the adoption of more stringent NECs in Directive 2001/81/EC,⁹² reasoning that implementation of the Gothenburg Protocol would ‘contribute to achieving Community goals for protection of the environment and human health’.⁹³ Scientific uncertainty regarding critical loads also remains an issue, and precaution is needed when considering the exceedance boundaries.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 NO_X 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,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).⁹⁶

During the early period of the regime, this standard offered a viable route to achieving reductions, but the limits are being reached.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.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.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’.¹⁰⁰ Furthermore, as Kütting has noted, the ‘predominance of fossil fuels’ in the UNECE economies has not been significantly questioned.¹⁰¹

The 1999 Gothenburg Protocol expanded implementation strategies by simultaneously attempting to regulate sulphur, NO_X, 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.¹⁰² There are no provisions for international emissions trading, although some states have implemented national schemes.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.¹⁰⁴ The Protocol requires states to phase out market-based incentives for the regulated pollutants (such as tax exemptions and subsidies).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.¹⁰⁶ The 2012 Heavy Metals Protocol amendments provide stricter emission limit values for the specified sources, and extend the source categories.¹⁰⁷ The 2012 Gothenburg Protocol amendments set new 2020 emissions ceilings for existing pollutants as well as for PM and black soot.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.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’.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’.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.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).¹¹³ The European Monitoring and Evaluation Programme (EMEP) has also been a key supporting body.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.¹¹⁵ Currently there are three subsidiary bodies to the EB: (i) the Working Group on Effects (WGE);¹¹⁶ (ii) the EMEP Steering Body,¹¹⁷ with four task forces and four EMEP Centres;¹¹⁸ and (iii) the Working Group on Strategies and Review (WGSR), the principal negotiating body.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.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.¹²¹ The WGSR has been particularly important for the interaction of science and policy.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.¹²³ The regime is considered one of the most ‘science-based’ in existence, and could be held up as a ‘model’ in this regard.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.¹²⁵ It has been ‘overworked’ and has struggled at times to attend meetings in host states.¹²⁶ Despite these limitations, it has reportedly performed its functions relatively successfully.¹²⁷ The funding issue reflects the reluctant agreement reached during the Convention negotiations and the state-centric approach taken by the parties.¹²⁸ Although aware of this weakness, in the early 2000s the parties failed to create a centralized funding mechanism to distribute costs more fairly;¹²⁹ instead, all parties were asked to contribute to the non-EMEP core activities.¹³⁰ To this end, the EB provided guidelines that followed the allocation methods for the revised contributions to the 1984 EMEP Protocol.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.¹³² Estimates in the 2014–15 Implementation Work Plan¹³³ 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).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.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.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’.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.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.¹³⁹ However, as is the case with numerous MEAs, no formal disputes have arisen.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.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.¹⁴² As implementation strategies became more complex, states were required to report on the implementation of their commitments under the Protocols in general.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.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),¹⁴⁵ and also through the European Pollutant Release and Transfer Register (E-PRTR).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.¹⁴⁷ It was modelled on the IC of the Montreal Protocol on Substances that Deplete the Ozone Layer,¹⁴⁸ which was developed in 1990–92.¹⁴⁹ Its functions include (i) the review of compliance with reporting obligations; (ii) consideration of submissions or referrals,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.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’.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 review¹⁵³ – for example, reporting for the 1988 NO_X Protocol increased from 82% in 1998 to 99% in 2003.¹⁵⁴

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,¹⁵⁵ while a further strengthening of the reporting requirements will only go so far in achieving compliance with the reduction commitments.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).¹⁵⁷ Most scholars have concluded that the IC is effective, compliance levels have improved, and most states implement the IC’s recommendations.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’.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.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.¹⁶¹ Majority voting provides greater flexibility, but can lead to states opting out if allowed to.¹⁶² The CLRTAP resulted from consensus-based decision making, and embedded this approach.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).¹⁶⁴ This approach did not achieve full ratification levels, but it secured the participation of the willing, avoided conflict and therefore increased legitimacy.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.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.¹⁶⁷

Participation is limited to the Member States and states with consultative status to the UNECE.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.¹⁶⁹ The symbolic and political value of the East–West membership was a great asset.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.¹⁷¹

From the 1990s onwards, as the problem of hemispheric air pollution (POPs, mercury, ozone, and particulate matter) gained prominence,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.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.¹⁷⁴ The 1998 POPs Protocol¹⁷⁵ 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.¹⁷⁶ The 1998 Heavy Metals Protocol¹⁷⁷ influenced the 2013 Minamata Convention on Mercury, which addresses the intercontinental transport of mercury.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)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.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.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.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.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.¹⁸⁴ The US and Canada have selectively ratified the Protocols, preferring to find bilateral solutions.¹⁸⁵ The US has also engaged in agreements with Mexico.¹⁸⁶ In general, US domestic politics dictated action on LRTAP in North America, although the regime may have contributed to awareness raising.¹⁸⁷ Bilateral agreements exist also in Europe, for example, between Finland and Russia.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.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.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.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.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.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.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.¹⁹⁵

The 1991 VOCs Protocol¹⁹⁶ and the 1994 Sulphur Protocol II¹⁹⁷ 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.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 challenges¹⁹⁹ 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 Protocol²⁰⁰ allowed the EIT countries ten instead of five years in which to achieve compliance with the product control measures.²⁰¹ The 2012 amendments of the Heavy Metals Protocol²⁰² and the 1999 Gothenburg Protocol²⁰³ 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 2030.²⁰⁴ The 2012 amendments to the Heavy Metals Protocol contained similar extensions for the implementation of BAT and limit values to existing stationary sources.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.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;²⁰⁷ this appears to have increased their participation in the negotiations.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.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,²¹⁰ but Azerbaijan, Uzbekistan, Tajikistan and Kyrgyzstan are unlikely to do so in the short term.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.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.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.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 Matters²¹⁵ and its implementation in UNECE Member States including the EU – there is now a large amount of reported emissions data publically available.

Intergovernmental organizations, NGOs²¹⁶ and industrial groups may attend meetings as observers, whilst NGOs must have consultative status with the UNECE to attend working group meetings.²¹⁷ The unofficial Heads of Delegations meetings that take place during the negotiations of the Protocols have been ‘exclusive’,²¹⁸ and NGOs do not appear to have participated as observers of the work of the IC.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.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.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.²²² There is very little public participation in the regime.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.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.²²⁵ However, awareness of the Convention and LRTAP in general has declined across key stakeholder groups (the public, politicians and local NGOs, for example).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.²²⁷ The 2010 Long-term Strategy and 2011 Action Plan has included the need for an improved communications strategy.²²⁸ With the implementation of higher pollution reduction requirements in the next decade, success will depend more on public opinion and support.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,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.