Environmental Liability and Compensation Regimes: A Comprehensive Overview
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Ricardo Crespo
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1. General Backround
2. State Responsability
3. Sate Responsability and State Liability
4. Liability in international conventions
5. Civil Liability Regimes
6. Conclusions
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Global commons are at
risk.
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Land contamination as a consequence of industrial
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Improper handling and disposal of waste;
Water contamination as a result of various causes
including discharge of untreated industrial effluents;
Loss of biodiversity due to a wide variety of impacts
including habitat loss and introduction of alien
species.
Tort Law
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Who should be held responsible for environmental
harm?
Who should pay for the costs involved in pollution
clean-up and restoration of the damaged
environment?
What should be the standards for acceptable
cleanups?
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Liability can be seen as a mechanism for
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of pollution-control costs
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Most important principles of environmental
protection are imposed by customary international
law.
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It is clear that this principle is no longer
absolute .
The limitation of territorial sovereignty is the obligation of
states, not to act as to injure the rights of other states.
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Principles of Good Environmental
Governance derived from the Rio
Conference
Intergenerational Equity
Sustainable Use
Precaution
Polluter pays
Good neighbourliness
Equity and fairness
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Decision of the ICJ December 2015, Case between
Costa Rica and Nicaragua: 4 main principles of
International Environmental Law:
1.
Due Diligence ( Part XII Law of the Sea. Environmental
protection of the marine environment)
2.
Prevention: ( Part XII Law of the Sea)
3.
Cooperation : Notification and Consultation.
4.
Prior Environmental Impact Assessment: Pulp Mills
Case- Argentina vs. Uruguay 2010.
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Potential Principles of Customary
International Environmental Law
1
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Principle 21 of the Declaration adopted by the
1972 Stockholm Conference on the Human
Environment
“
States have, in accordance with the Charter of the
United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to
their own environmental policies, and the responsibility to
ensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or
of areas beyond the limits of national jurisdiction.”
1992 Rio Declaration (Principle 2)
“
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”
Principle was repeated by Principle 2 in Declaration
on Environment and Development, adopted by the
1992 Conference held in Rio de Janeiro.
Two most important soft-law instruments that have
dealt with state responsibility for transboundary
harm.
Principle 22 of the Stockholm Declaration provides that
states are to
“...cooperate to develop further the international law
regarding liability and
compensation for the victims of
pollution and other environmental damage caused by
activities within the jurisdiction or control of such States
to areas
beyond their jurisdiction.
Principle 13 of the Rio Declaration called on States to
develop national law regarding liability and compensation
for victims of pollution and other
environmental damage
(Principle 13)
”
States shall also cooperate in an expeditious and more
determined manner to develop further international law
regarding liability and compensation for adverse effects of
environmental damage caused by activities within their
jurisdiction or control to areas beyond their jurisdiction.”
Those principles are now included in various other
binding and non-binding international instruments.
They can be found in the relevant provisions of Article
194 (2) of the Convention on Law of the Sea (1982) and
the Convention on Biological Diversity in Article 3.
The decision in the
Trail Smelter
arbitration
is one of
the most cited decisions by courts and tribunals in the
field of state responsibility and the environment.
The dispute was between United States and Canada
because of the air pollution coming from the Canadian
factory and causing the damage to crops in the United
States.
Trail Smelter
arbitration:
The tribunal decided: “
that
under the principles of international law, as well as the law of
the United States,
no state has the right
to use or permit
the use of its territory in such manner as to cause injury by
fumes in or to the territory of another or the properties of
persons therein, when the case is of serious consequence and
the injury is established by clear and convincing evidence”
This ban of causing harm to other state has been repeated in
some other cases.
In the
Corfu Channel case in 1949
. In this case United
Kingdom suffered loss of human lives and damage to
their vessels because the explosions of mines in
Albania‟s territorial sea. The International Court of
Justice stressed that it was Albania‟s obligation to notify
and warn about those mines. Court held Albania
responsible, set the compensation and declared that
obligation of each state is „not to allow knowingly its
territory to be used for acts contrary to the rights of
other states.”
In the
Lac
Lanoux case
, the dispute was between Spain
and France about using the lake by France for generating
electricity. It was needed to redirect part of the water to
another river. Spain claimed that it would affect the
interest of Spanish users of river. The tribunal decided
„there was a principle which prohibits the upstream
state from alerting the waters of a river in such a fashion
as seriously to prejudice the downstream state.
In the
advisory opinion to UN General Assembly
on the
Legality of the Threat or Use of Nuclear
Weapons the
International
Court of Justice stated
that:
“The existence of the general obligation of states to ensure
that activities within their jurisdiction and control respect the
environment of other states or of areas beyond national
control is now part of corpus of international law relating to
the environment.”
The ICJ also recognized in its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons and in
the Gabcikovo Case that:
“the existence of the general obligation of states to ensure
that activities within their jurisdiction and control respect
the environment of other states or of
areas beyond
national control is now part of the corpus of international
law relating to the environment.”
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Separate opinion of Vice-President Weeramantry:
“
States that both the right to development and the right to
environmental protection are principles currently forming part
of the corpus of international law. They could operate in
collision with each other
unless there was a principle of
international law which indicated how they should
be reconciled. That principle is the principle of
sustainable development
which, according to this opinion,
is more than a more concept, but is itself a recognized
principle of contemporary international law.”
G
G
abčikovo –Nagymaros Project case
abčikovo –Nagymaros Project case
Separate opinion of Vice-President
Weeramantry:
“The Court, as representing the main forms of
civilization, needs to draw upon the wisdom of all cultures,
especially in regard to areas of international law which are
presently in a developmental phase.
Among the principles
that can be so derived from these cultures are the
principles of trusteeship of earth resources,
intergenerational rights, protection of flora and fauna
,
respect for land, maximization of the use of natural resources
while preserving their regenerative capacity, and the principle that
development and environmental protection should go hand in
hand.”
Conditions for state responsibility.
Existence of the international obligation or duty between
two states.
An act that violates that obligation
Loss or damage that resulted from an unlawful act.
It is always crucial to identify the international obligation
which has been breached.
The real problem of this concept is that state
responsibility does not provide any duty for
compensation for damage
resulted from activities
that are not prohibited by international law.
Three main steps to raise a claim for damages under
international law:
1.Identifying the damaging activity attributable to a state
2.
Proving the causal link between act and the damage.
3. Determining either a violation of international law or a
violation of a duty of care (due diligence).
Difference between State responsibility
and State liability
Two different legal concepts.
State responsibility
asserts that a state that violates an
international obligation has to repair harm caused to
another state.
According to Kiss and Shelton the
Trail Smelter
case
is
the basis for the discussion on responsibility and liability
environmental law
but it left open the question of
whether a state executing due diligence would be
liable if transfrontier harm results despite the
State's best efforts.
In the Trail Smelter case the tribunal did not clarify
whether the state is liable only for intentional, reckless
or negligent behaviour (fault –based conduct) or it
should
strict liability
be applied.
Therefore, in the international environmental law it is
necessary to distinguish responsibility, which
arises upon breach of an international obligation
and liability for injurious consequences of lawful
activities.
“State responsibility represents the consequence of, and
sanction against, non-performance by states of their
international obligations.”
(Brian D. Smith,
State Responsibility and the Marine
Environment
, (Oxford University Press, 1988) p. 6 ).
Objective theory
of state responsibility: Just a violation
of international law is relevant for the existence of state
responsibility,
regardless of the fault of the state
. The
ground for state responsibility depends on the content of
an international obligation.
Fault responsibility theory
: The supporters of the
fault (
culpa)
theory took the
Corfu Channel case
as an
example to justify their point of view. In this case the
Court declared that a state which knows that a
minefield has been located in its territorial waters
would be obliged to notify states of its existence.‟
However, the court did not mention fault (
culpa)
explicitly as a relevant condition for state responsibility,
but supporters of the fault theory claimed that this was a
clear proof that fault (
culpa)
is a relevant element for the
state responsibility.
Obligations which require no element of fault are those
obligations entailing
strict responsibility
‟,
responsibility for failure to achieve a required or to
prevent a prohibited result without consideration of
intent or diligence.
Kiss and Shelton note that the legal consequences
of environmental harm cover both state
responsibility for violation of international law and
liability for harm caused by activities allowed by a
state.
The latter is strict or absolute liability.
States have historically showed great reluctance to initiate
proceedings even where environmental damage is very
severe.
The decision not to invoke the responsibility of the Soviet
Union regarding the Chernobyl disaster is an example of that
reluctance.
After the explosion in the nuclear reactor, the radioactive
cloud crossed the air above Sweden, Germany, Austria,
Switzerland, Italy and the ex Yugoslavia.
States accepted only to cooperate, but no other obligation
was imposed.
The Chernobyl disaster has shown that states are afraid
of possible liability of their own acts in the future.
As the states refused to accept liability for
transboundary harm,
it shifted to civil liability
and
transposed the liability to the 'operator' or person in
control of a hazardous activity.
The difference between
state responsibility and state
liability
is that liability is based on the creation of risk .
The reasoning behind this claiming is that the state
creating risk and benefiting from the risk shall also incur
the consequences in case harmful injury occurs
even for
lawful acts.
Why should states be strictly liable for activities carried
out, not by themselves but by private person on their
territory.
The private persons who economically benefit from
those activities should carry liability in a form of civil
liability. Only in case of 'partial or total default the state
should have subsidiary liability.
In case of
damage resulting from hazardous activities
,
state responsibility will be entailed only when rules on
international law establish obligatory standards of safety to a
state on whose territory the activities are carried out and
the state has failed to impose or to control.
Due diligence
means that the states are required to adopt
legislative and administrative controls applicable to public
and private conduct, with the objective to effectively protect
other states and the global environment.
Due diligence
When the activity involves a risk of significant
transboundary damage, the state is required to take all
necessary measures to prevent it.
By definition, due diligence is an obligation of conduct,
not an obligation of result.
Due diligence is related to the principle of exclusive
competence of a state on its own territory.
If the activity which may have transboundary harm is
performed by an individual on its territory, the state on
whose territory the activity is performed must make sure
to take measures for protection and control in order to
prevent the harmful effects.
State liability is defined as liability of state under public
international law and civil liability means the liability of a
natural or legal person under the domestic legislation
including the legislation established to implement the
provisions of international treaty obligations.
State responsibility and liability in
international conventions
1982 Montego Bay
Convention on the Law of the
Sea
, whose article 235 provides that:
“.
..1. States are responsible for the fulfillment of their
international obligations concerning the protection and
preservation of the marine environment. They shall be liable in
accordance with international law...”
1972 Convention on International Liability for
Damage caused by Space Objects
Establishes rules and procedures for damage caused by
space objects and ensures the prompt payment of full
and equitable compensation to victims of such damage.
Establishes a regime of absolute liability for the launching
state for damage caused
by its space object on the
surface of the earth or to aircraft flight.
State responsibility for environmental harm is a highly
complex and rather controversial issue that has been the
subject of ongoing discussions reflected in the
2001 set
of draft articles on “Responsibility of States for
Internationally
Wrongful Acts”, developed by the
UN International Law Commission
, after decades of
study. Although articles refer to state responsibility in
general terms, the articles are applicable to cases of
environmental harm.
State Liability for Lawful Acts
The International Law Commission has been working on
the issue of “International Liability for Injurious
Consequences arising out of Acts Not
Prohibited by
International Law (Prevention of Transboundary Damage
from Hazardous Activities)” as a question of customary
international law since 1977.
According to the draft articles, states should take
all
appropriate measures
“to prevent significant
transboundary harm or at any event to minimize
the risk
thereof”, and states concerned “shall cooperate in good
faith and, as necessary, seek the assistance of one or
more competent international
organizations in
preventing significant transboundary harm or at any
event in minimizing the risk thereof
The International Law Commission adopted, at its 56th
session in 2004, the Draft Principles on the Allocation of
Loss in the Case of Transboundary
Harm arising out of
Hazardous Activities.
This is a
set of eight principles
, meant to apply to
transboundary damage caused by activities not
prohibited by international law which involve a risk of
causing significant transboundary harm
through their
physical consequences.
State Liability for Lawful Acts
-
Occur only if an international instrument specifically
provides for liability.
-
Only very few international
agreements do so:
The Convention on International Liability for
Damage caused by Space Objects
provides for
absolute liability without a wrongful
act for damage
caused on the surface of the Earth or to aircraft in flight
(article II) and for fault responsibility for other kinds of
damage (article III).
State Liability for Lawful Acts
Some bilateral agreements:
-
1964 Agreement between Finland and the Union
of Soviet Socialist Republics (“USSR”) on Common
Waterways
, which provides that a contracting party that
causes damage in the territory of the other contracting
party through activities carried out in its own territory
shall be liable and pay compensation
While state responsibilities for environmental
harm, as well
as international liability for non
wrongful acts are often
discussed, states have
seldom made recourse to either of
them.
- Among other reasons:
The difficulty of ascertaining the full extent of
damages.
The fact that often the damage to the
environment cannot
be fully remedied.
The difficulty of establishing a causal link
between the activity
that allegedly caused the
damage and the damage suffered.
The rigidity of traditional forms of international
responsibility and of dispute settlement
mechanisms and
therefore the preference for
informal mechanisms for
settling environmental
disputes.
The concern about establishing precedents in a
very delicate
field of international relations.
For these reasons, transboundary environmental
cases are
often resolved on an inter-personal level
rather than among
states, that is through recourse
to private rather than public
international law.
This
implies that the polluter and the victim appear
directly before the competent domestic authorities.
The transnational element present in these cases
can,
however, give rise to problems of jurisdiction,
choice of
the applicable law, and enforcement of
judgments, leading
states to enter into treaties
regulating the liability of
private individuals for
environmental harm.
Civil Liability Regimes for Environmental
Damage
Prerequisites:
1)
There
are one or more identifiable actors (polluters).
2)
The damage is concrete and quantifiable, and
3)
It
is possible to establish a causal link between the
damage and the actions of the identified polluter.
It is much easier to establish personal
liability
for activities
such as industrial accidents,
hazardous waste disposal, or water
pollution from
distinct “point-sources” such as end of pipe
discharge of pollutants than it is for diffuse sources of pollution.
Diffuse sources of pollution:
Agricultural or urban runoff
(“non-
point sources”), acid rain or automobile
pollution where it is
difficult or impossible to link
the negative environmental effects
with the
activities of specific individual actors.
Civil liability
regimes can apply at the national and the
international
levels.
Types of Civil Liability for Environmental
Damage
Fault liability
. If liability is based on “fault”
(wrong
doing) the plaintiff must prove that the
perpetrator acted
with intent or that he/she
acted negligently or without
due care.
Strict liability
. If liability is “strict”, fault need not
be
established. No intention to violate a duty of
care or a
norm and no negligence need be
shown in a case to
prevail.
The plaintiff need only
prove the causal link between
the
action of the
alleged perpetrator and the damage.
Strict liability regimes typically do provide for
some
defenses:
A
person may be exonerated
from liability if:
The damage was caused by:
-
An act of God (or natural disaster),
-
-An
act of war,
-
Or by the interference of a third party.
Strict liability has become an increasingly
common form
of liability for environmental
harm.
For example Art.- 396 of the Ecuadorian Constitution
(2008) states that strict liability applies for environmental
damages.
The rationale for strict liability
is that an
actor that
profits from potentially harmful or
inherently dangerous
activities should be liable
for damage that occurred as a
result of the
harmful activity, an application of the
“Polluter
Pays Principle”.
The distinction between strict liability and fault
liability is
not always clearcut.
- Some
strict liability systems allow defendants to avoid
liability if they can demonstrate that they have used
the
best available technology to control pollution
or that they
have complied with their
environmental permits .
Absolute liability
. Absolute liability differs from
strict
liability because it allows no defenses to
the perpetrator
apart from an act of God.
This
type of liability is rarely imposed, and only for
what
are deemed ultra-hazardous activities,
such as nuclear
installations.
Scope and Threshold of Environmental
Damage
In addition to traditional types of damage such as
personal injury or property damage,
environmental
cases may result in damage to the environment
itself (so-called pure environmental damage).
Damage is measured by the costs of remediating or
restoring the impaired environment. Examples of
pure
environmental damage are damage to
biodiversity or
natural resources.
An example of regime that recognizes damage to
natural
resources as such is the
USA
Comprehensive
Environmental Response,
Compensation and
Liability Act of 1980
, which
covers damage for injury or
loss of natural
resources.
Article 72 of the Ecuadorian Constitution (2008) states that
“Nature has the right to be restored”.
Other examples:
Italian Law N. 349/1986, art. 18 that establishes liability
for
“natural resource damages”.
EUDirective 2004/35/EC on Environmental Liability: Damage
to biodiversity.
Contamination of sites can for instance take the
form of
contamination of soil, surface water or
ground water,
independent from whether or not
human health or
private property is affected.
Liability regimes for environmental damage
normally contain
clean-
up standards and clean-up
objectives
.
Clean-up standards:
used to evaluate
whether clean-up of a
contaminated site is
necessary. The main criterion for this decision
is
usually whether the contamination leads to a
serious threat to
human health or the environment.
Clean-up
objectives:
identify the quality of soil and water that is
acceptable for the type of economic activity that
will be carried out
at the particular location after
clean up. Clean-up objectives may be
established
based on future land uses, the type of technology
available to remedy the contamination and cost
considerations.
Thresholds
A number of civil liability instruments establish a
threshold, beyond which environmental damage is
deemed significant and therefore justifies the
imposition
of liability, although this level may vary
significantly from
one country to another.
Article 289: Ecuadorian environmental Code: The National
Environmental authority will determine the scope and criteria
to characterize and evaluate the environmental damage as
well as the different preventive and restoration measures.
Who is Liable?
Cornerstone of an effective liability
regime.
In most conventions, the “operator” or
“owner”, typically
the person who exercises
control over an activity, is
liable.
This is consistent
with the Prevention and Polluter-Pays
Principles,
because it provides an incentive to the person
who
carries out the activity to take preventive steps to
eliminate or reduce the risk of damage, and a
compensation mechanism to pay for the costs of
environmental harm caused by the activities.
Difficulties to determine which
specific individual or
organization caused
environmental harm:
If several waste
generators dispose of the same chemical in
a
landfill, it may be impossible to identify the
particular
portion of the contamination that can be
attributed to a
specific contributor to the overall
problem.
Some liability regimes hold
all of the parties that disposed of
a particular
contaminant liable for cleaning up the entire site.
This form of liability is referred to as “joint and
several”
liability because each of the polluters can
be held responsible
for the cost of the entire
cleanup.
Forms of Compensation
In most cases of environmental damage, the victim
is
likely to seek financial reparation to cover the
costs
associated with material damage to
environmental
resources.
Problems arise because
environmental damage cannot be
addressed with
the traditional approach of civil liability,
that is, to
compensate for the economic costs of the lost
or
damaged property
Pure environmental damage
may be incapable of
calculation in economic
terms
, such as in the case of
loss of fauna and flora
which is not commercially
exploited and therefore
has no market value and in the
case of damage to
ecosystems or landscapes, economic
value cannot
be assessed with and in traditional
approaches.
A
fairly widely accepted solution to this problem is to
calculate the damage in the basis of the link
between
reasonable costs of restoration measures,
reinstatement
measures or preventative measures.
Environmental liability regimes may also foresee
compensation for further damages
exceeding those
related to the adoption of such restoration
measures, when
both restoration and comparable
measures, are not
technically feasible or not
reasonable.
The fact that environmental damage
is irreparable
or
unquantifiable should not result in an exemption
from
liability.
Criteria for the calculation of
damage used in different
legal systems
Linking the damage to the market price
of the environmental
resource (such as in the Trail
Smelter Case)
Linking the damage to the economic value attached
to its
use, for example, (travel costs
made by individuals to visit
and enjoy an
environmental resource amenity).
Extra
market value of private property where certain
environmental amenities are located.
Willingness of individuals to pay for the enjoyment
of
environmental goods, such as clean air or water
or the
preservation of endangered species.
Insurance
Most civil liability regimes require the operator to
establish
financial security, usually in the form of
insurance, to ensure
that the risk of liability is
covered.
Compulsory insurance is used as a means
to secure that
adequate payment of compensation
is made and to avoid the
bankruptcy of companies
that have to compensate for severe
damages.
However, compulsory insurance systems could
reduce the
incentive for potential polluters to
exercise caution and
prevent damage.
Funds
Another mechanism utilized to ensure the
coverage of
damage is the creation of victim
compensation funds, which
are replenished by the
operators of the specific sector for
which the fund
is established.
These funds are intended to provide
compensation for
victims and paying for the
remedying of damages in cases
where, for different
reasons, compensation cannot be
provided by the
operator.
Such funds are very
common in international regimes
regulating oil
pollution from ships.
International Civil Liability
When plaintiffs resort to private law to address
transboundary environmental issues a number of
unique
issues are raised :
-
Which court in
which country has jurisdiction over the
matter.
-
Which country’s laws apply, and where and how
can the
judgment of the court be enforced.
- States
have sought to overcome these and other
problems
through treaties regulating the liability of
private
individuals
for environmental harm.
Most of the treaty regimes:
-
Define the
activities or substances and the harm covered.
-
T
he
criteria to establish who is liable.
-
The standard of
care that must be exercised to avoid liability
and
provide exceptions from liability.
-
Most agreements
set limitations on the amount of liability
and
provisions for enforcement of judgments.
-
Include provisions on
mandatory insurance or other financial
guarantees
and establish funds.
Several treaties establish rules on civil liability for
environmental or related damage, generally with
respect
to specific activities, such
as nuclear
installations, oil
pollution and hazardous wastes
.
One example in Europe is the
Lugano
Convention on
Civil Liability for Damage resulting
from
Activities Dangerous to the Environment
,
adopted
in 1993, but not yet in force).
The 1993 Lugano Convention
Aims at
ensuring adequate compensation for damage
resulting from activities dangerous to the
environment
and also provides for means of
prevention and
reinstatement.
It only applies to
dangerous activities, defined as an open-
ended
category that includes but is not limited to:
hazardous substances specified in Annex I, genetically
modified organisms, micro-organisms
and waste.
The 1993 Lugano Convention
It covers all types of damage:
-
Loss of life, personal injury, damage to property.
-
Loss
or damage by impairment to the environment.
-
Costs of preventive measures (both traditional
damage
and environmental damage) when caused
by a dangerous
activity.
The 1993 Lugano Convention
The operator is s
trictly liable for
damage
caused during the period when he/she
exercises control over that activity, and is required
to maintain insurance.
The operator may be
exonerated from liability
for damage if he/she
proves that the
damage was caused:
-
By an act of
war, a natural phenomenon of exceptional
c
haracter.
-
An act done with the intent to cause
damage by a third party.
-
When the damage resulted from
compliance with a specific order from a public
authority.
- Contributory fault on the part of the
victim may also reduce the amount
received in
compensation.
- Actions for compensation must be
brought within
three years
from the date on
which
the claimant knew or ought reasonably to have
known of the damage
and of the
identity of the
operator.
- In no case shall actions be brought
after
thirty years from the date of the incident
which
caused the damage.
The International
Convention on Civil
Liability for Oil Pollution
Damage
(“CLC”)
- Adopted in 1969 and
amended by the Protocols of 1976
and
1992.
-
Was adopted under the auspices of the
International
Maritime Organization (“IMO”) in
response to the
“Torrey Canyon” oil spill disaster of
1967.
- Establishes a regime to guarantee the payment of
compensation by shipowners for oil pollution
damage.
The International
Convention on Civil
Liability for Oil Pollution
Damage
-
Places the liability for such damage
on the owner of the ship from which
the polluting
oil escaped or was discharged.
The shipowner is
strictly liable unless
the incident is caused by war,
a natural phenomenon of exceptional character, a
malicious act of a third
party, or through the
negligence of the government.
The 1992 Protocol
widens the scope of the convention:
- Covers
pollution damage in the Exclusive Economic Zone
(“EEZ”).
-Extends the scope of the Convention
to cover spills from sea-
going
vessels
constructed
or adapted to carry oil in bulk as
cargo
It
applies to
both laden
and unladen tankers.
-Includes
spills of bunker oil from such ships.
-
Limits liability to cost incurred for reasonable measures to
reinstate the
environment.
The International Convention on the Establishment
of an International Fund for Compensation for Oil
Pollution Damage (“FUND”)
- Adopted in 1971
and amended by the Protocols of 1976
hand 1992.
- Adopted under the auspices of IMO to
ensure that
adequate compensation is available to
persons suffering
damage caused by oil pollution
discharged from ships in
cases where
compensation under the 1969 CLC was
inadequate or could not be obtained.
Other Conventions related to oil pollution
The 1996 International Convention on Liability and
Compensation for Damage in connection with the
Carriage of Hazardous and Noxious Substances by
Sea
(“HNS”) .
The International Convention on Civil Liability for
Bunker Oil Pollution Damage (“Bunker Oil
Pollution”).
The Convention on Civil Liability for Oil Pollution
Damage resulting from Exploration for and
Exploitation
of Seabed Mineral Resources (“Seabed
Mineral
Resources”) was adopted in 1977. ( Not yet in force)
Nuclear Installations
OECD Convention on Third Party
Liability in the Field of
Nuclear Energy (“Paris
Convention”), concluded in 1960
entered into force on April 1, 1968.
International Atomic Energy Agency’s Convention
on
Civil Liability for Nuclear Damage (“Vienna
Convention”)
concluded in 1963 and their Joint
Protocol relating to
the Application of the Vienna
Convention and the Paris
Convention (“Joint
Protocol”) was adopted in 1988
The 1960 Paris Convention:
-
The objective is ensure adequate
and equitable compensation
for persons who suffer
damage caused by “nuclear incidents.
-
Covers cases of gradual radioactive
contamination,
but
not
normal or controlled releases of radiation.
-
Establishes a
regime of absolute liability
for the operator of a
nuclear
installation for damage including loss of life, and
damage or
loss to property other than the nuclear
installation itself.
-
The limitation period to bring
forth a claim is ten years
,
although
nations
may
shorten this time to a period of
not less than two
years
from the date
the claimant knew or
ought to
have known of the damage and the
identity of the
operator
liable
Other conventions on nuclear damage
The Convention relating to Civil Liability in the
Field of
Maritime Carriage of Nuclear Material
(“NUCLEAR
Convention”), was adopted in 1971.
The Convention on Supplementary Compensation
for
Nuclear Damage (“CSC”) adopted in 1997.
Hazardous Wastes Regime
Basel Protocol
on Liability and Compensation for
Damage
resulting from Transboundary Movements of
Hazardous Wastes and their Disposal (“Basel
Protocol”)
adopted in 1999 as a Protocol to the
1989 Basel
Convention on the Control of
Transboundary
Movements of Hazardous Wastes
and their Disposal
(“Basel Convention”).
Basel protocol
-
Damage includes
traditional damage (loss of life, personal injury or
damage to property), economic loss, and the costs
of reinstatement and
preventive measures
(environmental damage).
-
Liability is strict and the
notifier or exporter is liable for damage until the
disposer has taken possession of the wastes.
-
Fault-based liability can be imposed for
intentional, reckless or negligent
acts or omissions.
-
The notifier is exonerated from liability if he/she
proves that damage was
the result of an armed
conflict or war, a natural phenomenon of
exceptional character, compliance with state law,
or the intentional
conduct of a third party.
-
In any
case, all transboundary hazardous waste
movements must be
covered by insurance.
Basel protocol
-
It applies only to damage suffered in
an area under the national
jurisdiction of a state
party arising from an incident as defined, as
well as
to areas beyond national jurisdiction and noncontracting
states of transit, provided those states
afford reciprocal benefits on
the basis of
international agreements.
-
-Places a cap on financial
liability and the limits correspond to the
units of
shipment in tonnes (listed in the Annex B).
-
Claims must be brought within ten years from the
date of the
incident and within five years from the
date the claimant knew or
ought reasonably to
have known of the damage.
- Claims may be
brought in the courts where the damage was
suffered, the
incident occurred, or the residence or
place of business
of the defendant.
Transboundary Waters
Protocol on Civil Liability and
Compensation for Damage
caused by the
Transboundary Effects of Industrial
Accidents on
Transboundary Waters
to the 1992
Convention on
the Protection and Use of Transboundary
Watercourses and International Lakes and to the
1992
Convention on the Transboundary Effects of
Industrial
Accidents (“Civil Liability Protocol”)
adopted in 2003 but
not yet in force (as of
September 2005).
Convention on the Transboundary Effects of
Industrial Accidents (“Civil Liability Protocol”)
- According to the Civil Liability Protocol:
- Companies will be liable for accidents at industrial
installations, including
tailing dams, as well as
during transport via pipelines.
- Damage covered by
the Protocol includes physical damage, damage to
property, loss of income, the cost of reinstatement
and response measures
will be covered by the
Protocol.
- It sets financial limits of
liability depending on the risk of the activity, based
on the quantities of the hazardous substances that
are or may be present
and their toxicity or the risk
they pose to the environment.
- Requires
companies to establish financial securities, such as
insurance or
other
- Contains
a
non-discrimination provision, according to which
victims of
the transboundary effects cannot be
treated less favourably than victims
from the
country where the accident has occurred.
T
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i
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i
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i
t
y
a
n
d
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e
s
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t
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t
h
e
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B
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o
s
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f
e
t
y
Adopted by the Conference of the Parties serving as the
meeting of the Parties to the Cartagena Protocol on Biosafety
on 15 October 2010.
Liability and redress in the context of the Protocol concerns
the question of what would happen if the transboundary
movement of living modified organisms (LMOs) has caused
damage.
Article 4. Causation: A causal link shall be established
between the damage and the living modified organism in
question in accordance with domestic law.
Article 12. Implementation and relation to civil liability
1. Parties shall provide, in their domestic law, for rules
and procedures that address damage. To implement this
obligation, Parties shall provide for response measures in
accordance with this Supplementary Protocol and may, as
appropriate:
◦
Apply their existing domestic law, including, where applicable,
general rules and procedures on civil liability;
◦
Apply or develop civil liability rules and procedures specifically
for this purpose; or
◦
Apply or develop a combination of both.
2. Parties shall, with the aim of providing adequate rules and
procedures in their domestic law on civil liability for material or
personal damage associated with the damage as defined in
Article 2, paragraph 2 (b):
◦
Continue to apply their existing general law on civil liability;
◦
Develop and apply or continue to apply civil liability law specifically
for that purpose; or
◦
Develop and apply or continue to apply a combination of both.
3. When developing civil liability law as referred to in
subparagraphs (b) or (c) of paragraphs 1 or 2 above, Parties
shall, as appropriate, address,
inter alia
, the following elements:
◦
Damage;
◦
Standard of liability, including strict or fault-based liability;
◦
Channelling of liability, where appropriate;
◦
Right to bring claims.
Article 6. Exemptions
Parties may provide, in their
domestic law, for the following exemptions:
◦
Act of God or
force majeure
; and
◦
Act of war or civil unrest.
Parties may provide, in their domestic law, for any
other exemptions or mitigations as they may deem
fit.
Article 7. Time limits:
Parties may provide, in their domestic law, for:
Relative and/or absolute time limits including for
actions related to response measures; and
The commencement of the period to which a time
limit applies.
Liability in the CBD
Article 14.2 of the CBD merely states that “[t]he
Conference of the Parties shall examine, on the
basis of studies to be carried out, the issue of
liability and redress, including restoration and
compensation, for damage to biological diversity,
except where such liability is a purely internal
matter.”
The discussion of the Convention’s work on liability
and redress continues.
Conclusions
With the exception of oil pollution regimes the rules of international
law governing liability for environmental damage remain in their early
phases of development particularly in relation to rules of state liability
this is reflected after Chernobyl and in the remote prospect for the
entry into force of the 1993 Lugano Convention.
Significant developments include the adoption of liability protocols to
the 1989 Basel Convention .
Efforts are underway to establish new regimes in relation with the
Antarctic Environment Protocol and the 2000 Biosafety Protocol
which poses particular challenges in respect of defining what
constitutes damage.
In regard to state liability more cooperation called for by Principle 13
of the Rio Declaration remains to be addressed.
S
o
u
r
c
e
s
Chapter 5: UNEP Training Manual on International
Environmental Law
http://digitalcommons.pace.edu/cgi/viewcontent.cgi?arti
cle=1789&context=lawfaculty
Jorge E Viñuales on environmental protection in
customary international law.
http://legal.un.org/avl/ls/Vinuales_EL_video_2.html
Principles of International Environmental Law- Philippe
Sands. Second Edition. Conclusions on Liability.
Numerous environmental damages have occurred globally, leading to the need for liability and compensation regimes. This includes incidents like the Bhopal gas leak and Chernobyl nuclear accident. Concepts of tort law guide responsibility and compensation in cases of environmental harm, addressing issues such as land contamination and loss of biodiversity. Legal liability plays a crucial role in holding polluters accountable and ensuring repair or compensation for damages incurred.
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LIABILITY AND COMPENSATION REGIMES RELATED TO ENVIRONMENTAL DAMAGE Ricardo Crespo
Contents 1. General Backround 2. State Responsability 3. Sate Responsability and State Liability 4. Liability in international conventions 5. Civil Liability Regimes 6. Conclusions
General Backround Numerous severe damage to the environment that have affected the territory of countries all over the world. cases of Global commons are at risk.
1984 disaster, Bhopal gas leak 1986 Chernobyl nuclear power plant accident.
1986 Basel chemical spill into the Rhine Cyanide spill in the year 2000 from the Baia Mare mine in northwestern Romania. Marine oils pill incidents that have caused massive damage to the coasts of a number of countries.
Common examples include: Land contamination as a consequence of industrial accidents. Improper handling and disposal of waste; Water contamination as a result of various causes including discharge of untreated industrial effluents; Loss of biodiversity due to a wide variety of impacts including habitat loss and introduction of alien species.
Tort Law In general, concepts of liability and compensation stem from the principles of tort law in which a wrongful act causing injury permits the injured party to obtain compensation, usually in the form of money damages, through a private civil action against the person who caused the injury.
Questions Who should be held responsible for environmental harm? Who should pay for the costs involved in pollution clean-up and restoration of the damaged environment? What should be the standards for acceptable cleanups?
Legal liability is one way of forcing major polluters to repair the damage that they have caused, to pay for those repairs or to compensate someone for the damages if the damage cannot be repaired. Liability is a necessary to ensure that persons responsible for non-compliance environmental damage face the prospect of having to pay for restoration of the affected environment or compensating for the damage caused. resulting in
Types of Liability Civil liability operates on the level of national law, and creates a relationship between the person liable and the person injured by conduct for which he/she is held responsible. State responsibility, operates on the plane of public international law. It creates a relationship not between two or more individuals but between two or more states. The state, rather than a private individual, must provide a remedy for damage that occurs as a consequence of a breach of an international legal obligation established by treaty or rule of customary international law. State liability : has been developed chiefly by the United Nations International Law Commission ( ILC ), usually refers to the responsibility that a state faces for harm occurring as a consequence of a lawful activity, independently of whether there was any violation of an international norm.
Polluter Pays Principle (PPP) Liability implementing the Polluter Pays Principle ( PPP ). can be seen as a mechanism for The PPP was originally adopted by the Organization for Economic Cooperation ( OECD ) in 1972, contemplates the internalization of pollution-control costs. and Development
1992 Rio Declaration (Principle 16) National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
STATE RESPONSIBILITY AND THE ENVIRONMENT The law of state responsibility is customary international law, developed by state judgments. practice and international Enforcement of public international law is rather limited because states participate reciprocal obligations, customary binding on the states, as it is evidence of generally accepted state practice and opinion iuris accepted as law. on voluntary international basis and law is
The concept of state responsibility only covers the case of breach of the states own obligations owed to another state or states. These obligations extend to the duty to ensure that activities undertaken by private parties do not cause harm to the territory of other states, as indicated by the Trail Smelter Arbitration, but do not include the responsibility of the private parties themselves. The latter is the object of civil liability regimes, which are designed to allow private individuals or organizations causing transboundary environmental harm to be held responsible for such damage.
The concept of state responsibility makes an obligation for states to act in conformity with the international agreements or customary law. Since the concept of state responsibility is applicable to the field of environment, the breaches of treaty or customary international law allow the injured state to lodge claim against injuring (violating) state whether by way of diplomatic action or by way of recourse to international mechanism where such are in place with regard to the subject matter at issue.
Most important principles of environmental protection are imposed by customary international law. One of those principles is the principle of state sovereignty over its territory and natural resources, which is a fundamental and the most important principle of international law in general.
Throughout the history states could use their own natural resources in the way they want regardless of the impact to the territory of another state. It is clear that this principle is no longer absolute . The limitation of territorial sovereignty is the obligation of states, not to act as to injure the rights of other states. State sovereignity also neighbourliness as well responsibility for causing the environmental damage in case that damage occurs. the as principle the principle of good state of
Principles of Good Environmental Governance derived from the Rio Conference Intergenerational Equity Sustainable Use Precaution Polluter pays Good neighbourliness Equity and fairness
Principles of Customary International Environmental Law ( Ius Cogens) Decision of the ICJ December 2015, Case between Costa Rica and Nicaragua: 4 main principles of International Environmental Law: 1. Due Diligence ( Part XII Law of the Sea. Environmental protection of the marine environment) 2. Prevention: ( Part XII Law of the Sea) 3. Cooperation : Notification and Consultation. 4. Prior Environmental Impact Assessment: Pulp Mills Case- Argentina vs. Uruguay 2010. Prevention and Due Diligence should be reflected with Cooperation and EIA.
Potential Principles of Customary International Environmental Law 1 . Precautionary Principle or Approach ( Principle 15 Rio Declaration). Additional manifestation of due diligence in environmental matters. 2. Public participation: ( Principle 10 Rio Declaration) 3. Principle of contemporeignity in the application of environmental norms. Treaties whether they refer to environmental issues or not , have to be interpreted in the light of existing environmental norms at the time of the application of the treaty. (Opinion of Judge Weeramantry in the Gab ikovo Nagymaros Project case 1997)
Classical principles of international law Two potentially contradictory notions Principle of territorial integrity recognizes the right of states to be free of interference from others Principle of territorial sovereignty recognizes the freedom of states to do as they like within their own territory.
Principle 21 of the Declaration adopted by the 1972 Stockholm Conference on the Human Environment States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
1992 Rio Declaration (Principle 2) States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. to exploit their own
Principle was repeated by Principle 2 in Declaration on Environment and Development, adopted by the 1992 Conference held in Rio de Janeiro. Two most important soft-law instruments that have dealt with state responsibility for transboundary harm.
Principle 22 of the Stockholm Declaration provides that states are to ...cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.
Principle 13 of the Rio Declaration called on States to develop national law regarding liability and compensation for victims of pollution and other environmental damage (Principle 13) States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.
Those principles are now included in various other binding and non-binding international instruments. They can be found in the relevant provisions of Article 194 (2) of the Convention on Law of the Sea (1982) and the Convention on Biological Diversity in Article 3.
The decision in the Trail Smelter arbitration is one of the most cited decisions by courts and tribunals in the field of state responsibility and the environment. The dispute was between United States and Canada because of the air pollution coming from the Canadian factory and causing the damage to crops in the United States.
Trail Smelter arbitration: The tribunal decided: that under the principles of international law, as well as the law of the United States, no state has the right to use or permit the use of its territory in such manner as to cause injury by fumes in or to the territory of another or the properties of persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence
This ban of causing harm to other state has been repeated in some other cases. In the Corfu Channel case in 1949. In this case United Kingdom suffered loss of human lives and damage to their vessels because the explosions of mines in Albania s territorial sea. The International Court of Justice stressed that it was Albania s obligation to notify and warn about those mines. Court held Albania responsible, set the compensation and declared that obligation of each state is not to allow knowingly its territory to be used for acts contrary to the rights of other states.
In the Lac Lanoux case, the dispute was between Spain and France about using the lake by France for generating electricity. It was needed to redirect part of the water to another river. Spain claimed that it would affect the interest of Spanish users of river. The tribunal decided there was a principle which prohibits the upstream state from alerting the waters of a river in such a fashion as seriously to prejudice the downstream state.
In the advisory opinion to UN General Assembly on the Legality of the Threat or Use of Nuclear Weapons the International Court of Justice stated that: The existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of corpus of international law relating to the environment.
The ICJ also recognized in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and in the Gabcikovo Case that: the existence of the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating to the environment.
WeeramantryIn the Separate Gab ikovo Nagymaros Project case (1997) concerning the controversy between Hungary and Slovaquia on the construction of a dam on the Danube River: opinion of Vice-President We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating states, International environmental law will need to proceed beyond weighing rights and obligations within a closed compartment of individual State self interest, unrelated to the global concerns of humanity as a whole
Gabikovo Nagymaros Project case Separate opinion ofVice-PresidentWeeramantry: States that both the right to development and the right to environmental protection are principles currently forming part of the corpus of international law. They could operate in collision with each other unless there was a principle of international law which indicated how they should be reconciled. That principle is the principle of sustainable development which, according to this opinion, is more than a more concept, but is itself a recognized principle of contemporary international law.
Gabikovo Nagymaros Project case Separate Weeramantry: The Court, as representing the main forms of civilization, needs to draw upon the wisdom of all cultures, especially in regard to areas of international law which are presently in a developmental phase. Among the principles that can be so derived from these cultures are the principles of trusteeship intergenerational rights, protection of flora and fauna, respect for land, maximization of the use of natural resources while preserving their regenerative capacity, and the principle that development and environmental protection should go hand in hand. opinion of Vice-President of earth resources,
Conditions for state responsibility. Existence of the international obligation or duty between two states. An act that violates that obligation Loss or damage that resulted from an unlawful act. It is always crucial to identify the international obligation which has been breached. The real problem of this concept is that state responsibility does not provide any duty for compensation for damage resulted from activities that are not prohibited by international law.
Three main steps to raise a claim for damages under international law: 1.Identifying the damaging activity attributable to a state 2. Proving the causal link between act and the damage. 3. Determining either a violation of international law or a violation of a duty of care (due diligence).
Difference between State responsibility and State liability Two different legal concepts. State responsibility asserts that a state that violates an international obligation has to repair harm caused to another state. According to Kiss and Shelton the Trail Smelter case is the basis for the discussion on responsibility and liability environmental law but it left open the question of whether a state executing due diligence would be liable if transfrontier harm results despite the State's best efforts.
In the Trail Smelter case the tribunal did not clarify whether the state is liable only for intentional, reckless or negligent behaviour (fault based conduct) or it should strict liability be applied. Therefore, in the international environmental law it is necessary to distinguish arises upon breach of an international obligation and liability for injurious consequences of lawful activities. responsibility, which
State responsibility represents the consequence of, and sanction against, non-performance by states of their international obligations. (Brian D. Smith, State Responsibility and the Marine Environment, (Oxford University Press, 1988) p. 6 ). Objective theory of state responsibility: Just a violation of international law is relevant for the existence of state responsibility, regardless of the fault of the state. The ground for state responsibility depends on the content of an international obligation.
Fault responsibility theory: The supporters of the fault (culpa) theory took the Corfu Channel case as an example to justify their point of view. In this case the Court declared that a state which knows that a minefield has been located in its territorial waters would be obliged to notify states of its existence. However, the court did not mention fault (culpa) explicitly as a relevant condition for state responsibility, but supporters of the fault theory claimed that this was a clear proof that fault ( culpa) is a relevant element for the state responsibility.
Obligations which require no element of fault are those obligations entailing strict responsibility ,responsibility for failure to achieve a required or to prevent a prohibited result without consideration of intent or diligence. Kiss and Shelton note that the legal consequences of environmental harm cover both state responsibility for violation of international law and liability for harm caused by activities allowed by a state. The latter is strict or absolute liability.
States have historically showed great reluctance to initiate proceedings even where environmental damage is very severe. The decision not to invoke the responsibility of the Soviet Union regarding the Chernobyl disaster is an example of that reluctance. After the explosion in the nuclear reactor, the radioactive cloud crossed the air above Sweden, Germany, Austria, Switzerland, Italy and the ex Yugoslavia. States accepted only to cooperate, but no other obligation was imposed.
The Chernobyl disaster has shown that states are afraid of possible liability of their own acts in the future. As the states refused to accept liability for transboundary harm, it shifted to civil liability and transposed the liability to the 'operator' or person in control of a hazardous activity.
The difference between state responsibility and state liability is that liability is based on the creation of risk . The reasoning behind this claiming is that the state creating risk and benefiting from the risk shall also incur the consequences in case harmful injury occurs even for lawful acts.
Why should states be strictly liable for activities carried out, not by themselves but by private person on their territory. The private persons who economically benefit from those activities should carry liability in a form of civil liability. Only in case of 'partial or total default the state should have subsidiary liability.
In case of damage resulting from hazardous activities, state responsibility will be entailed only when rules on international law establish obligatory standards of safety to a state on whose territory the activities are carried out and the state has failed to impose or to control. Due diligence means that the states are required to adopt legislative and administrative controls applicable to public and private conduct, with the objective to effectively protect other states and the global environment.
Due diligence When transboundary damage, the state is required to take all necessary measures to prevent it. By definition, due diligence is an obligation of conduct, not an obligation of result. Due diligence is related to the principle of exclusive competence of a state on its own territory. If the activity which may have transboundary harm is performed by an individual on its territory, the state on whose territory the activity is performed must make sure to take measures for protection and control in order to prevent the harmful effects. the activity involves a risk of significant
State liability is defined as liability of state under public international law and civil liability means the liability of a natural or legal person under the domestic legislation including the legislation established to implement the provisions of international treaty obligations.
