Approaching legal response for the duty to prevent transboundary air pollution in South Korea

This article evaluates exploring legal responses to transboundary air pollution. Among the many relevant lessons the Trail Smelter has for environmental governance in Northeast Asia, the first and foremost point is that it used the law to confront the transboundary air pollution problem. I will overview the past history, the present statutory structure, and the future challenges of Korean environmental law. Because Korea is one of “the incumbent economic leaders of developing Asia,” its development efforts are illustrative of “the pitfalls and tradeoffs awaiting developing nations as they attempt to nurture a growing economy without poisoning the environment.” Lessons from Korea’s experience may help prevent developing countries from repeating the same mistakes Korea has made. Finally, I would like to suggest some additional concepts that could guide negotiators in setting the form of the treaty. First, wherever possible, the agreement should leverage co-benefits. Co-benefits exist when objectives of more than one policy can be satisfied with a single measure. Secondly, a transboundary air pollution treaty should concentrate on early adoption of clean energy investment in Asia rather than end-of-the-pipe control. Finally, any agreement should be consistent with the ideal of green growth, namely the creation of economic value through environmentally protective actions. For example, the treaty could enhance intra-country investment and trade in emission reduction technologies and processes and renewable energy by incorporating a commitment to lower barriers to trade and investment in these technologies. Market mechanisms such as regional emissions trading for sulfur dioxide or mutual recognition of renewable energy credits could also be considered.