From Smelter Fumes to Silk Road Winds: Exploring Legal Solutions to Transboundary Air Pollution over Korea

Laura Henry, Yonsei University Graduate School of Law
Jasper Kim, Ewha University School of International Affairs
Dongho Lee, Paul, Hastings, Janofsky and Walker

Abstract

While Northeast Asia notably lacks any regional environmental governance mechanism with binding mutual obligations, effectively curbing transboundary air pollution is of increasing urgency given the dependence of China on coal-fired power plants to meet its pressing energy needs and growing demand internally for internal combustion vehicles. We argue that the current collective policy response is inadequate to confront the risks posed by transboundary air pollution. A legal response is both practically necessary and morally required. The purpose of the article is to review a variety of legal methods for the resolution of transboundary air pollution disputes and to assess the current state of environmental dispute resolution mechanisms in Northeast Asia in order to suggest affirmative solutions to the transboundary air pollution over Korea. Arguing for the legalization of regional environmental cooperation on air pollution, this article for the first time presents a comprehensive comparative analysis of the contemporary practice of transboundary pollution dispute resolution between the major Northeast Asian countries with that of European and North American countries. The roots of Northeast Asia’s non-legal approach to transboundary environmental harm are explored within the contemporary regional security and economic structure. Current avenues for the resolution of transboundary environmental disputes are examined in the national court systems and through environmental treaties concluded between China, Japan and Korea. The article concludes with proposals for contextually relevant international norms as the basis for negotiations and institution-building in Northeast Asia for the prevention of transboundary pollution.