China’s air pollution has been in the news for quite some time now, and the Chinese government is finally taking this issue seriously. 

Just recently, the City of Beijing declared a war against smog. The central government is also going to spend as much as $275 billion over the next five years to find a way to alleviate this chronic problem. And yet, the smog is now getting thicker and murkier with the increasing consumption of fossil fuels in the northern part of the country as the weather gets cold.

With the strong push from the southeasterly winter wind, the smog has started a transboundary journey to Korea and Japan, and brought, along with it, harmful airborne particles. The western part of Korea, including the Seoul metropolitan area, is vulnerable to the blanket of the transboundary smog.

The problem is, it is not likely that this situation will change anytime soon. Chinese officials expect that it will take at least five to 10 years before they see any meaningful improvement of the quality of air in China. So, coping with the smog will stay high on Korea’s and Japan’s national agenda for the foreseeable future.

It has been for some time now that the spring season on the peninsula has been marked by the yellow dust from its huge neighbor, and now a blanket of smog comes to fill the air each fall and winter.

For its part, China has taken the position of “tough luck” on this issue: There is nothing a country can do about a natural phenomenon such as creation or direction of wind. That is true, to some extent. Obviously, no country is responsible for nature’s operating system. But at the same time an obligation of a state not to cause harm to neighboring countries has also been confirmed by the accumulating body of international environmental law. The U.N. International Law Commission has stated that “the state of origin shall take all appropriate measures to prevent significant transboundary harm.”

In fact, other countries have taken some concrete steps to address this very issue on a regional or bilateral level. The EU has signed a treaty called Convention on Long-Range Transboundary Air Pollution, which regulates transboundary transmission of air pollutants. A bilateral arrangement, termed the Air Quality Agreement, also exists between the United States and Canada to regulate this transboundary air pollution issue in North America. Perhaps we have reached the point where a similar arrangement is needed among the neighboring countries in this region. Or perhaps a similar provision to that effect should be inserted into a prospective FTA currently being negotiated.

Note that one of the bilateral treaties that Korea signed with China right after the normalization of diplomatic relations was the Agreement on Environmental Cooperation concluded in October 1993, which sets forth a bilateral cooperation obligation in the areas of air, water and marine pollution. Obviously, it is time that this bilateral agreement should play a pivotal role in this regard.

It is ironic that on the one hand, we are trying to take advantage of the fast-growing Chinese market by concluding FTAs and other deals (China is Korea’s largest trading partner at the moment), but on the other we are also complaining about the side effects of its rapid economic development. This paradoxical situation will haunt us as we pursue deeper economic integration with China as a result of the Korea-China FTA. There has got to be a silver bullet solution to this problem.

The expectation is high that the new governmental drive in China will make significant progress in the dire state of its air quality. Likewise, regional or bilateral arrangements of all sorts will have to be introduced to tackle this problem. If something is not done in time, sooner or later the facial masks will become a fixture in Seoul and canned fresh air an item of increasing demand at convenience stores.

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law at Hanyang University. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.