Extraterritoriality, Environmental damage, and the Korean fine dust case
On April 5th, 2017 a heterogeneous group of exponents from the civil society, including NGOs and ordinary Korean citizens, filed a lawsuit against the South Korean and the Chinese governments, seeking relief for 3000000 KRW for the mental distress allegedly caused to the plaintiffs by the increased levels of fine dust in the air.
What Korea has been experiencing in the last few years has no precedents the country’s history: recently, pollution levels have risen consistently and, ironically, in the years following the filing of the lawsuit the PM level in the air has risen to the highest levels ever registered. Many link the deterioration of the air conditions to China’s fast industrialization. In 2017, the city of Seoul alone issued fine dust warnings on 10 days, up five times the warnings issued in 2013. This year, 2019, the daily average level of PM 2.5 particles broke records in Seoul on March 5th, hitting 135 micrograms and the second-highest level was on January 14th, when the average PM 2.5 level in Seoul reached 129 micrograms .
The leader of the campaign that followed the lawsuit is Choi Yul, a former Korean student leader in the 1970s that was later imprisoned for his political activism. At the time of release, Mr Yul founded the first non-governmental organization (“NGO”) on environment, namely the Korean Research Institute of Environmental Problems, which addressed pollution problems related to the fast-growing national industrialization. Today, Mr Yul is the President of Korean Green Foundation[i], an NGO founded in 2002 to raise awareness on the issues of the environment and pollution, on whose behalf the lawsuit was filed. Aided by attorney Kyung-jae Ahn, in the last two years Mr Yul has sought to raise the Korean people’s awareness on the issue of fine dust of the critical air conditions that Korea is facing nowadays. “The reason Kyung-jae Ahn and I chose to file a lawsuit was to draw the attention of the general public and incite to action the government in both Korea and China” - he declared in a written statement published on the website of the International Institute for Asian studies in summer 2017 , some months after the opening of the first hearing.
Taking into account the context in which it was filed, in the following article, the author will try to identify the major questions that the lawsuit has posed from an international law perspective.
First of all, the dispute involves two defendants: the South Korean government, on the one hand and the Chinese government, on the other and the plaintiffs have raised different causes of action against each of them. As to the former, plaintiffs publicly alleged that South Korea neglected to provide the appropriate countermeasures needed in order to combat fine dust and failed to clarify its exact causes . As to the latter, plaintiffs provided that China must be held responsible for the environmental damage caused since, as a member of the international community, “[it] had the obligation to control pollutants at an acceptable level” . It is specifically on the Chinese position that the author will focus, by seeking to assess the criticalities of an extraterritorial application of domestic law towards a foreign government, in the context of trans-boundary air pollution.
The Korean Green Foundation’s lawsuit is the first one to have been filed on the issue of trans-boundary air pollution in the country. In addition to the subjective intent that pushed the parties to file the lawsuit, the plaintiffs’ demands may draw attention to the issue of the availability of means of international law in redressing environmental damage. In this case, the plaintiffs asked to submit the authorities of a foreign sovereign State, i.e.the Chinese government, to the jurisdiction of a Korean national court and apply to it its domestic laws. Moreover, under a substantial point of view, there is still much uncertainty on the extent of a State’s international responsibility (in this case, China’s) for not having controlled pollutants on its territory at an acceptable level.
As to the first point raised, this case may well be qualified as a case of “extraterritoriality” or “extraterritorial application of the law”, which has been defined as a method of “applying the law towards people, situations, laws and legal connotations that are located or are being made outside a given state's borders but, nevertheless, are subject to its legal acts” .
Generally prohibited in international law, extraterritoriality is limited by the principle that every State has the right to define its own internal policies independently and with the exclusion of any foreign influences. Given that application of domestic law by a State beyond its territory constitutes an extraordinary action in international law, extraterritoriality is subjected to rigid restrictions and needs a thorough justification to be applied .
Nevertheless, the international practice has showed that exceptions to the general denial of extraterritoriality may exist. Justifications generally rely on the implementation of specific provisions at the internal level, and require acceptance of the foreign State in order for them to be enacted. Theories have been elaborated with respect to the nature of the relationship that must exist between the two States involved, in order for laws to be applied extraterritorially. Among them, the sensible liason doctrine, which provides that the extraterritorial application of a law of one State is allowed insofar as that law is the one to which the defined legal situation is most closely related with . The standards of closeness of relationship may differ from case to case.
Different from the sensible liason doctrine is the effects doctrine, which allows the State’s exercise of extraterritorial jurisdiction over an act taking place outside its territory where that act “produces” or “is intended to produce” or “is foreseen as producing” effects in that State . Particularly, this doctrine has been applied by Singapore in the context of the 2014 Transboundary Haze Pollution Act (THPA) , which was enacted to address the issue of air pollution caused by the large-scale deforestation that is taking place in in South East Asia with the purpose of growing new plantations related to the palm-oil and paper industries . This law enables extraterritorial application to acts taking place outside Singapore: it allows both civil actions and to prosecute in Singapore companies, partnerships or individuals that have links to plantations outside Singapore by holding them responsible if certain presumptions are met. Among them, under Section 8 of the THPA, where it is proved that “there is haze pollution in Singapore; at or about the time of the haze pollution in Singapore, there is a land or forest fire on any land situated outside Singapore; and based on satellite information, wind velocity and direction and other meteorological information at or about the time of the haze pollution in Singapore, the smoke resulting from that fire is moving in the direction of Singapore, it shall be presumed, until the contrary is proved, that there is haze pollution in Singapore involving smoke resulting from that land or forest fire”.
For the purposes of the present article, readers may also find a useful reference in one of the most celebrated cases on trans-boundary air pollution, namely theTrail Smelter dispute, which involved the governments of the United States and Canada and was decided by an ad-hoc arbitral tribunal in 1941 . The case concerned a smelter of zinc and lead based in Trail, British Columbia (Canada), whose activities had significantly grown, to the extent that it became "one of the best and largest equipped smelting plants on the American continent” . Together with the increase of the Trail Smelter activities came a rise in the level of sulphur dioxide produced and released in the air. According to the Arbitral Tribunal, these increased levels of released sulphur dioxide caused trans-boundary environmental damage to the territory of the United States for at least ten years. These bases allowed the arbitrators to conclude that, under the principles of international law, “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence” .
It has been maintained that the Trail Smelter caseestablished the principle that a State may not use or allow its nationals to use its own territory in such a manner as to cause injury to a neighbouring country , in so determining the perimeter of the States’ duties with regards to trans-boundary environmental harm. Nonetheless, two issues remained open: first, the extent of the State’s accountability in absence of specific treaties provisions and, second, the availability of the instruments of international law for access to remedy, in absence of international courts or ad-hoc tribunals .
In this respect, States have applied extraterritoriality in various contexts as an optional tool to compensate the lack of international provisions. For instance, extraterritoriality has been admitted in limited cases of violations of human rights, whereby regional treaties provide an effective remedy to victims that suffered harm while not being within the jurisdiction of a State and towards whom the allegedly responsible States failed to fulfil their obligations . Precisely, this is the case of the European Convention of Human Rights (ECHR), which provides that all of its signatory States “shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention” . Until now, to the author’s knowledge, the European Court of Human Rights, which is the competent body to decide complaints filed by States or individuals concerning violations of the ECHR, has identified four cases in which extraterritorial application of the law is allowed. First, where a State party exercises “effective overall control” over another territory; second, where State authorities act abroad or their actions produce extraterritorial effects; third, in extradition cases involving the risk that an individual’s rights will be violated once he leaves the territory of the signatory State; last, in diplomatic and consular cases .
Moving back to the present case, due to the lack of a Korean domestic law concerning extraterritoriality  and in light of the international practice, no determination can be made in respect of the legality of an extraterritorial application of the Korean law towards the fine dust issue. Additionally, the Chinese government has argued that the lawsuit constitutes a violation of China’s sovereignty since “a government cannot be a defendant in another country's court” . Although not explicitly mentioned by the parties, this principle is also enshrined in the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property 2004, which provides that “A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State”  . In light of that, some conclusions can be drawn on the effectiveness and, yet, dangerousness, of the extraterritorial application of the domestic law in cases of trans-boundary air pollution, such as the Korean fine dust case.
On the one hand, extraterritoriality seems to constitute the only legal tool available producing direct effects on the part of the victims suffering from environmental damage. However, its use would still be perilous in respect of the reactions of the other States towards the exercise of extraterritorial jurisdiction on their territory. In fact, frictions may rise in the foreign policies of the States involved: in international law and relations, exercise of jurisdiction over the territory is significant because sovereignty over land is one of the elements that defines what constitutes a state . In light of that, Helge Schafer sustains that extraterritoriality consists in adopting an act of domestic law, which is to “affect legal relations abroad” . In that respect, perplexities on the use of extraterritoriality have also been raised in the Rio Declaration on environment and development of 1992 , which discourages recourse to extraterritoriality in cases of trans-boundary air pollution and provides that environmental measures addressing problems of environmental damage should be adopted on the basis of international consensus.
To conclude, the environment is the living space of human beings and the right to a health environment constitutes the condicio sine qua nonfor the enjoyment of their fundamental rights. To this extent, environmental damage may be regarded as a form of violation of human rights. However, the issue of trans-boundary air pollution poses some difficulties under both a substantial and a procedural point of view. On the one hand, it raises the problem of the determination of the extent of the privates’ and the States’ duty to preserve the environment and of their consequent liability. On the other hand, it sheds light on the thorny question of the admissibility of extraterritoriality, which still constitutes a perilous tool for the peaceful coexistence of States and whose enactment does not depend upon its legality, but, instead, on the exercisable power of one State against the other.
***The views expressed herein do not necessarily represent the opinions of JTMS or Yonsei Institute for North Korean Studies
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[i]For more information about the Korea Green Foundation, readers may be interested in visiting their official website at: http://intra.greenfund.org/greenfund_eng/ [accessed: 25 June 2019, 11.01 AM KST]