International responsibility and liability

In IEL, the determination of a breach and the allocation of responsibility raise two different questions. From a strictly terminological viewpoint, the international regime of state responsibility (hereinafter, ‘SR’) has been alluded to in terms of general international law, whereas liability recalls the domestic law terminology. Liability entails fault liability, strict and absolute liability, and civil liability. A unique feature of IEL involves securing accountability for transboundary environmental harm. A doctrinal debate about fault as an element of the primary obligation in the consideration of the wrongful act may indicate that fault is not necessary in some IEL cases. For instance, in terms of transboundary harm IEL instruments like the Stockholm Declaration do not require intention or negligence as a constitutive element of the wrongful act. IEL scholars have argued that the strict liability regime for environmental harm may emerge independently on the basis of the principles of equity, sovereign equality and good neighbourliness.37 Strict liability leads to a reversal of the burden of proof, with the possibility for the defending State to still invoke circumstances precluding wrongfulness or liability. At the other end of this spectrum, however, the absolute (or objective) liability regime rules out the possibility of invoking circumstances precluding liability.38 Authors also mention civil liability (treaty overlay and civil liability litigation), even if few international treaties have established a system along these lines, enabling private individuals to bring a claim within . . ■ .. ■ 30

national jurisdiction.

Liability in IEL has been the focus of study by scholars and international institutes with the aim of adopting rules governing liability in IEL.40 The prevention

  • 37 Birnie, Boyle and Redgwell (n 11) at 218.
  • 38 Alex Kiss and Dinah L. Shelton, ‘Strict Liability in International Environmental Law. Law of The Sea*, in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah (Brill Academic Publishers 2007). GWU Legal Studies Research Paper No. 345, GWU Law School Public Law Research Paper No. 345, available at SSRN: https://ssrn.com/abstract=1010478 accessed 1 April 2020.
  • 39 Andrea Laura Mackielo, ‘Core Rules of International Environmental Law’ (2009) 16(1) ILSA Journal of International & Comparative Law, Article 11.
  • 40 Institut de Droit International, Session of Strasbourg - 1997, Responsibility and Liability under International Law for Environmental Damage (Eighth Commission, Rapporteur: Mr Francisco

International environmental law compliance 45 system is based on the principle sic utere tuo ut alienum non laedas. In inter-state relations, this represents the obligation not to cause injury to another State’s territory.[1] These principles evoke values applicable in compliance and enforcement contexts. States’ key obligations of prevention, cooperation, notification, restoration and compensation play a fundamental role in ensuring compliance in IEL. Under international law, however, private parties do not hold environmental liability in principle. This represents a clear limitation for the compliance system as the conduct of private parties (be they multinational companies or individual polluters) cannot be considered direct liability in IEL, as cases like Trail Smelter and Pulp Mills demonstrate. The ICJ case law has demonstrated the diverse interpretations of SR in cases involving environmental damage.

In an attempt to resolve this gap, soft-law norms have emerged in international law in the fields of corporate accountability and corporate social responsibility. IEL principles are at the root of the statement of the responsibility of States to avoid damage to the environment beyond their jurisdiction. In particular, principles such as the precautionary, the preventative and the sustainable development principles embodied in declarations guide the implementation and compliance of IEL. Principles of international law applicable to responsibility and liability are tailored to the specific context of environmental damage. A specific principle concerns inter- and intra-generation responsibility.

Declaration of the United Nations Conference on the Human Environment (1972) Principle 21

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.

Rio Declaration on Environment and Development (1992) Principle 2

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 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.

Several different concepts are related to the regime of SR: attribution, causation, reparation and exhaustion of local remedies.[2] Attribution has mainly referred to inter-state claims in which a wrongful act with a negative impact on the environment has taken place. From this perspective, all international obligations with bearing on the environmental realm found in treaty or in customary law can give rise to SR. Some obligations under IEL would be more specific -for instance in terms of reduction of emissions - making it easier to pinpoint whether there was a lack of compliance. Causation, defined as the relationship between the wrongful act and the harmful result, can become particularly controversial under IEL when several factors have contributed towards a harmful outcome. A decisive question at this point is how to assess IEL tools in order to bring the situation to the status quo ante or even improve it. The international responsibility presents difficulties when it comes to securing compliance with IEL. In the mindset of a more reactive approach, international responsibility may fulfil the objectives. However, in a preventative approach to environmental damage, it does not fit the pattern associated with an effective operating system.

Many criticisms have been raised, pointing at the fact that the SR regime is not fit-for-purpose when it comes to the breach of I EL obligations. Some of the more innovative provisions of the current draft articles of the International Law Commission (ILC) on SR aim at solving these questions, such as the inclusion of erga omnes obligations.[3]

As SR might take different forms in times of peace and times of war, the ILC has been working on the draft articles on environmental damages caused in the context of armed conflict. With the proliferation of various types of armed conflicts, the pollution and environmental damage caused as a result have increased, leading to international claims. Amongst other known effects of pollution caused by armed conflicts, there are chemical contaminations, such as that resulting from the bombing of industrial sites in Kosovo (1999), and oil pollution, such as the leak in the Mediterranean Sea during the Israel-Lebanon war (2006). UNEP has closely observed more than 20 post-conflict situations and followed this topic during the last two decades, helping to shape principles that apply to addressing significant environmental harm caused during armed conflict.

Various mechanisms have been used to enhance or induce compliance with IEL under the framework of due diligence and hence avoid SR. The liability of nonstate actors has been an elusive matter. In terms of environmental liability, the IEL system offers limited coverage in the regulation of responsibility in the face of transboundary harm or long-range pollution caused by private activities. Using the categories of‘business and human rights approaches’, the three obligations of respect, protect and remedy may be functional to the system.

INSTITUT DE DROIT INTERNATIONAL

Session of Strasbourg - 1997

Responsibility and Liability under International Law for Environmental Damage

Basic Distinction on Responsibility and Liability

Article 1

The breach of an obligation of environmental protection established under international law engages responsibility of the State (international responsibility), entailing as a consequence the obligation to re-establish the original position or to pay compensation.

The latter obligation may also arise from a rule of international law providing for strict responsibility on the basis of harm or injury alone, particularly in case of ultra-hazardous activities (responsibility for harm alone).

Civil liability of operators can be engaged under domestic law or the governing rules of international law regardless of the lawfulness of the activity concerned if it results in environmental damage.

The foregoing is without prejudice to the question of criminal responsibility of natural or juridical persons.

Source: Institut de Droit International, full text available at https://www.idi-iil.org/app/uploads/2017/06/1997_str_03_en.pdf

INTERNATIONAL COURT OF JUSTICE

Nuclear Tests Case - New Zealand v France Judgment of 20 December 1974 Questions of jurisdiction and/or admissibility

Atmospheric contamination - Tests resulting in the deposit of radioactive fallout on territory of other States and on high seas - Legality of the nuclear tests - Applicability of absolute responsibility for damage caused

18. As the United Nations Scientific Committee on the Effects of Atomic Radiation has recorded in its successive reports to the General Assembly, the testing of nuclear devices in the atmosphere has entailed the release into the atmosphere, and the consequent dissipation in varying degrees throughout the world, of measurable quantities of radioactive matter. It is asserted by Australia that the French atmospheric tests have caused some fall-out of this kind to be deposited on Australian territory; France has maintained in particular that the radio-active matter produced by its tests has been so infinitesimal that it might be regarded as negligible, and that such fall-out on Australian territory does not constitute a danger to the health of the Australian population. These disputed points are clearly matters going to the merits of the case, and the Court must therefore refrain, for the reasons given above, from expressing any view on them.

Source: International Court of Justice - https://www.icj-cij.org/ files/case-related/59/059-19741220-JUD-01-00-EN.pdf

INTERNATIONAL COURT OF JUSTICE

Case concerning the Gabcikovo - Nagymaros Project (Hungary v Slovakia) Judgment of 25 September 1997

State of necessity as a ground for precluding wrongfulness - Article 33 of the Draft Articles on State Responsibility - Environment -“Grave und imminent peril”

  • 40. Throughout the proceedings, Hungary contended that, although it did suspend or abandon certain works, on the contrary, it never suspended the application of the 1977 Treaty itself. To justify its conduct, it relied essentially on a “state of ecological necessity”. Hungary contended that the various installations in the Gabcikovo - Nagymaros System of Locks had been designed to enable the Gabcikovo power plant to operate in peak mode. Water would only have come through the plant twice each day, at times of peak power demand. Operation in peak mode required the vast expanse (60 km’) of the planned reservoir at Dunakiliti, as well as the Nagymaros dam, which was to alleviate the tidal effects and reduce the variation in the water level down-stream of Gabcikovo. Such a system, considered to be more economically profitable than using run-of-the-river plants, carried ecological risks which it found unacceptable. The Court moreover observes that, when it invoked the state of necessity in an effort to justify that conduct, Hungary chose to place itself from the outset within the ambit of the law of State responsibility, thereby implying that, in the absence of such a circumstance, its conduct would have been unlawful. The state of necessity claimed by Hungary - supposing it to have been established - thus could not permit of the conclusion that, in 1989, it had acted in accordance with its obligations under the 1977 Treaty or that those obligations had ceased to be binding upon it. It would only permit the affirmation that, under the circumstances, Hungary would not incur international responsibility by acting as it did. Lastly, the Court points
  • (Continued)

out that Hungary expressly acknowledged that, in any event, such a state of necessity would not exempt it from its duty to compensate its partner.

  • 49. The Court will now consider the question of whether there was, in 1989, a state of necessity which would have permitted Hungary, without incurring international responsibility, to suspend and abandon works that it was committed to perform in accordance with the 1977 Treaty and related instruments.
  • 50. In the present case, the Parties are in agreement in considering that the existence of a state of necessity must be evaluated in the light of the criteria laid down by the International Law Commission in Article 33 of the Draft Articles on the International Responsibility of States that it adopted on first reading.
  • 51. The Court considers, first of all, that the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. It observes moreover that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The International Law Commission was of the same opinion when it explained that it had opted for a negative form of words in Article 33 of its Draft

in order to show, by this formal means also, that the case of invocation of a state of necessity as a justification must be considered as really constituting an exception - and one even more rarely admissible than is the case with the other circumstances precluding wrongfulness ...

(ibid., p. 51, para. 40)

Thus, according to the Commission, the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied; and the State concerned is not the sole judge of whether those conditions have been met.

52. In the present case, the following basic conditions set forth in Draft Article 33 are relevant: it must have been occasioned by an “essential interest” of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a “grave and imminent peril”; the act being challenged must have been the “only means” of safeguarding that interest; that act must not have “seriously impaired] an essential interest” of the State towards which the obligation existed; and the State which is the author of that act must not have “contributed to the occurrence of the state of necessity”.

Those conditions reflect customary international law.

Source: International Court of Justice, 1997, available at https://www.icj-cij.org/files/case-related/92/ 092-19970925-JUD-01-00-EN.pdf

Scholars distinguish between different stages in the process of IEL compliance, starting with actions aimed at facilitating compliance and then focussing on the mechanisms and processes through which IEL obligations are implemented.[4] Another relevant differentiation to be drawn here relates to the difference between compliance and enforcement. Traditionally, IEL scholarship has followed the distinction between primary norms, as those imposing or prescribing an action or omission, and secondary norms, as those determining the consequences of a breach of the norm.

The UNEP Guidelines, although of an advisory and non-binding nature, complement without altering the obligations assumed by States in MEAs defining the stages in the compliance process. The Guidelines define ‘compliance’ in terms of the fulfilment by a State of its obligations under an MEA. According to the guidelines, while ‘compliance’ reflects the terminology used in an international context, ‘enforcement’ refers to those process which take place in the national sphere.

Compliance alludes to a process in which State behaviour is scrutinized and benchmarked against the requirements set out in the specific obligations (which can be obligations of content or procedural obligations).07 A panoply of various actions are comprised in the process of compliance. In IEL, the initial approach was to attach negative consequences to the lack of compliance under SR rules; this has since evolved towards the adoption of mechanisms and procedures dealing with non-compliance, involving information, facilitation and management.

Implementation is a necessary step in the compliance cycle, which encompasses various actions, such as passing laws and regulations, including various enabling activities and steps that a State needs to take within its national territory to ensure the implementation of an MEA. This implies enacting national laws and regulations within the institutional framework, and capacity building and training to enhance enforcement competences and raise public environmental awareness. This often entails strengthening institutional frameworks, allocating responsibilities to national and local agencies, and assigning specific competences to carry out enforcement activities. The implementation stage also includes technical and financial assistance in creating and developing institutions, programmes and action plans oriented towards enforcement.

Enforcement, in turn, has traditionally been understood to take place in the national context, namely due to the specific features of decentralization observed in the international legal system. To undertake enforcement actions as a response to a lack of compliance or partial compliance, IEL relies on national law measures. Enforcement in national law can be shaped differently under national

norms, including procedures and actions carried out by a State through its competent authorities and agencies, to guarantee compliance through civil, administrative or criminal action.

Enforcement in IEL is limited to specific MEAs in the absence of a centralized system: Its main aim is to compel States to adjust to the behaviour prescribed by the norm within the scope of the respective treaty. Some cases dealing with environmental pollution and application of specific treaties in the field of IEL have reached the ICJ, which has created a chamber to deal with them. However, their number is quite reduced, the examination of the obligations is limited to a case-by-case analysis and the ICJ has not always adopted a clear stance on environmental protection on the international level. This lack of a centralized judicial system to check compliance with IEL is somewhat alleviated by the introduction of several mechanisms under MEAs. Non-compliance procedures (NCPs) instituted in the legal framework of various MEAs have resulted in a quantum leap in terms of compliance, as discussed below.

  • [1] Orrego Vicuña), available at https://www.idi-iil.org/app/uploacls/2017/06/1997_str_03_ en.pdf accessed 1 April 2020. Birnie, Boyle and Redgwell (n 11). 2 Jutta Brunnée, ESIL Reflection Procedure and Substance in International Environmental Law Confused at a Higher Level? (2016) 5(6) ESIL Forum, available at https://esil-sedi.eu/ post_name-123/ accessed 1 April 2020. See, also Robert Esposito, The ICJ and the Future of Transboundary Harm Disputes: A Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v. Colombia), Pace International Law Review. Online Companion, August 201Ó, at 1. 3 Sandrine Maljean-Dubois, ‘International Litigation and State Liability for Environmental Damages: Recent Evolutions and Perspectives’ in Jiunn-rong Yeh (ed), Climate Change Liability and Beyond (National Taiwan University Press 2017). 4 Xue Hanqin, Transboundary Damage in International Law (Cambridge University Press 2003); Phoebe Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford University Press 2001). 5 International Court of Justice, Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia). Phosphate mining on Nauru - Responsibility for rehabilitation of worked-out lands -Whether there was joint/ responsibility of/ three States are responsible for the full extent of rehabilitation of worked-out lands, available at https://www.icj-cij.org/files/case-related/80/080-19920626-JUD-01-00-EN.pdf accessed 1 April 2020. 6 Responsibility towards future generations. Pedro Flores y Otros v. Corporación Del Cobre, Codelco, Division Salvador. Recurso. De Protección. Copiapo. Supreme Court Of Chile Rol.12.753.Fs. 641 (1988). The Supreme Court of Chile in Pedro Flores v. Corporación del Cobre, Codelco, Division Salvador 1988, upheld a constitutional environmental right to live in an environment free from contamination in order to stop the deposition of copper mill tailings onto Chilean beaches that were adversely affecting protected marine life.
  • [2] James Crawford, State Responsibility: The General Party Cambridge Studies in Comparative and International Law (Cambridge University Press 2014). 2 Tseming Yang and Robert V. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly* p. 615. 3 Ilias Plakokefalos, ‘Causation in the Law of State Responsibility and the Problem of Overdetermination: In Search of Clarity’ (2015) 26(2) European Journal of International Law* pp. 471-492, available at https://doi.org/10.1093/ejil/chv023 accessed 1 March 2020.
  • [3] Tuomas Palosaari, ‘More than Just Wishful Thinking? Existence and Identification of Environmental Obligations Erga Omnes’, University of Eastern Finland Law School, Master’s Thesis Seminar, 27 March 2018, available at https://epublications.uef.fi/pub/urn_nbn_fi_ uef-20180404/urn_nbn_fi_uef-20180404.pdf accessed 1 March 2020. 2 ILC, Chapter VI. Protection of the Environment in Relation to Armed Conflicts, available at https://legal.un.org/ilc/reports/2019/english/chp6.pdf. See also, Conflict and Environment Observatory, UN Lawyers Approve 28 Legal Principles to Reduce the Environmental Impact of War, available at https://ceobs.org/un-lawyers-approve-28-legal-principles-to-reduce-the-environmental-impact-of-war/ accessed 1 March 2020. 3 Report and recommendations made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim. State responsibility - losses occasioned by invasion of another State -Proof of causation - Damage to oil wells - Allegations by Iraq that damage caused by Coalition forces, in E. Lauterpacht, C. J. Greenwood, A. G. Oppenheimer (eds), International Law Reports, Volume 109 (1998), p. 479. Reports and recommendations made by the panel available at https://jusmundi.com/en/document/decision/en-well-blowout-control-claim-report-and-recommendations-made-by-the-panel-wednesday-18th-december-1996 1 April 2020. 4 Matilda Linden, ‘Environmental Damage in Armed Conflict To What Extent Do the Remedies Available tor Environmental Damage in Armed Conflict Reflect the Polluter Pays Principle? The Cases of the Jiyeh Power Station and the Niger Delta Conflict’ (University of Gottenburgh 2017), available at https://gupea.ub.gu.Se/bitstream/2077/53076/l/gupea_2077_53076_L pdf accessed 1 April 2020. 5 UNEP, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law (UNEP 2009). 6 Timo Koivurova, Introduction to International Environmental Law (Routledge 2012).
  • [4] Dupuy and Vinuales (n 26) at 270. 2 UNEP, Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, available at https://wedocs.unep.org/bitstream/handle/20.500.! 1822/17018/UNEP-guidelines-compliance-MEA.pdf?sequence=l&isAllowed=y accessed 1 April 2020. 3 Brunnee (n 41).
 
Source