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Open Access 2023 | OriginalPaper | Buchkapitel

5. International Standards for National Environmental Liability Regimes

verfasst von : Kirsten Schmalenbach

Erschienen in: Corporate Liability for Transboundary Environmental Harm

Verlag: Springer International Publishing

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Abstract

Civil liability conventions are generally seen as instruments that push the costs of pollution into the polluter’s sphere, thereby implementing the ‘polluter pays principle’ (Chap. 2 ¶10 (Sect. 2.2.1)). If ratified, they have many advantages when compared to national tort laws: First, they facilitate cross-border lawsuits within their scope of application as civil liability conventions harmonise the domestic tort regimes in all the contracting States. Second, civil liability conventions introduce strict liability whereas general tort law is based on fault or negligence. In terms of disadvantages, at least from an environmental law perspective, is the fact that civil liability conventions serve to shield operators from exposure to excessive claims via liability caps, which is a deviation from the full-compensation principle of tort law.

5.1 Introductory Remark

Civil liability conventions are generally seen as instruments that push the costs of pollution into the polluter’s sphere, thereby implementing the ‘polluter pays principle’ (Chap. 2 ¶10 (Sect. 2.2.1)).¹ If ratified, they have many advantages when compared to national tort laws: First, they facilitate cross-border lawsuits within their scope of application as civil liability conventions harmonise the domestic tort regimes in all the contracting States. Second, civil liability conventions introduce strict liability whereas general tort law is based on fault or negligence. In terms of disadvantages, at least from an environmental law perspective, is the fact that civil liability conventions serve to shield operators from exposure to excessive claims via liability caps, which is a deviation from the full-compensation principle of tort law.²

However, for civil liability conventions to be an internationally effective means of implementing the polluter-pays principle requires that States go beyond negotiating and adopting these conventions but ratify them, a step the overwhelming majority are reluctant to take. As Noah Sachs pointedly observed, expertly designed treaties, such as the existing civil liability conventions, may attract scholarly attention due to their political aims and legal innovations, but they are of little practical value if States refuse to ratify them.³ Of the thirteen duly adopted civil liability conventions⁴ that aim at creating distinct civil liability regimes, only four have entered into force.⁵

Civil Liability Conventions

Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960, as amended by the Additional Protocol of 28 January 1964, by the Protocol of 16 November 1982 and by the Protocol of 12 February 2004, 1519 UNTS 329 (1960 Paris Convention).

Convention on the Liability of Operators of Nuclear Ships, AJIL 57 (1963) 268 (1962 Brussels Convention).

Vienna Convention on Civil Liability for Nuclear Damage, as amended by the Protocol of 12 September 1997, 1063 UNTS 266 (1963 Vienna Convention).

International Convention on Civil Liability for Oil Pollution Damage, 973 UNTS 4, replaced by the 1992 Protocol, 1956 UNTS 255 (1992 CLC).

Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources ILM 16 (1977) 88 (1977 London Convention).

Convention on the Regulation of Antarctic Mineral Resource Activities, ILM 27 (1988) 868 (1988 Wellington Convention).

Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty, 2941 UNTS 3 (2005 Environmental Protection Protocol Annex VI)

Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels, UN Doc. E/ECE/TRANS/79, (1989 CRTD).

Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, ILM 32 (1993) 1228. (1993 Lugano Convention).

10.

International Convention on Liability and Compensation for Damage in Connection with The Carriage of Hazardous and Noxious Substances by Sea as amended by the 2010 Protocol, ILM 35 (2010) 1406 (1996 HNS Convention).

11.

Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and their Disposal to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, UN Doc. UNEP/CHW.1/WG/1/9/2 (1999 Basel Protocol).

12.

International Convention on Civil Liability for Bunker Oil Pollution Damage, IMO document Leg/CONF.12/DC/1 (2001 Bunker Oil Convention).

13.

Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, UN Doc. ECE/MP.WAT/11-ECE/CP.TEIA/9 (2003 Kiev Protocol).

The degree of willingness that States manifest to commit to civil liability conventions is primarily driven by the subject matter, with issues such as nuclear energy safety and oil transportation seeming to generate the most support, triggered by, inter alia, the resultant devastation of related large-scale accidents. The last attempt of the international community to introduce a new international civil liability regime was in 2003 with the adoption of the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters.⁶ Of the 43 States parties to the main convention, only one State has ratified the Protocol – Hungary, which in 2000 experienced an environmental catastrophe caused by cyanide pollution spilling into the river Tisza.⁷

2000 Baia Mare Cyanide Spill

The Tisza is one of Central Europe’s main rivers, releasing almost 800 m³ of water per second into the Danube. The Tisza basin is shared by five countries (Hungary, Romania, Serbia, Slovakia and Ukraine) and has experienced several disastrous spills of toxic chemicals in the past, often related to leaks from mining facilities. In 2000, two dam walls that formed a gold mine’s retention reservoir broke, releasing thousands of tonnes of sediments and water containing toxic heavy metals and heavily contaminated with cyanide into tributaries of the Tisza River. On 27 April 2001, the Hungarian government filed civil proceedings in Budapest against the Australian-Romanian Aurul Company/Transgold S.A. that, at the time, ran the gold mine at Baie Mare in Romania. Explicitly referring to the polluter-pays principle, the lawsuit filed in Budapest sought approx. US$100 million for the damage caused to tourism and the ecosystem as well as for the cost to rehabilitate the poisoned areas along the Szamos, Tisza and Danube rivers.⁸ In May 2007, a preliminary decision of the Metropolitan Court Budapest established the liability of the Romanian company (File No. 4.P.23.771/2001/79-1), however, the company initiated bankruptcy proceedings against itself in Romania in April 2006 which led to it being delisted from the Romanian company registry. The Metropolitan Court Budapest was therefore forced to end the Hungarian civil procedure due to the lack of a defendant.⁹

The importance of polluters bearing the costs of the damage they cause has been emphasised on many occasions over the last five decades. Unsurprisingly, the multitude of international acknowledgements has given rise to hope that treaty failure, due to a lack of ratifications, can be remedied by parallel norms of customary international law (Chap. 3 ¶ 38 (Sect. 3.3.3)). Indeed, while States have little or no international repercussions to fear if they evade treaty obligations on environmental liability, openly objecting to parallel customary law, as identified by international authorities such as the ICJ, is a completely different matter. Regrettably, there is not yet even a single international decision that identifies a general legal obligation of States under customary international law to ensure domestically civil liability for environmental damage. However, and irrespective of this absence of precedent, it is quite possible that rules of customary international law will emerge and evolve even if States continue to shy away from ratifying civil liability treaties. To identify customary international law provisions on the polluter’s environmental civil liability, this Chapter will provide an overview of existing treaties and internationally developed instruments and guidelines in this area to then evaluate the customary nature of common elements.

5.2 Civil Liability Conventions

5.2.1 Obligations Under Civil Liability Conventions

Civil liability conventions are designed to harmonise the rules of tort law across jurisdictions for specific types of dangerous activities that could foreseeably result in transboundary damage. ¹⁰ Consequently, the conventions first and foremost oblige States parties to incorporate the substantive provisions into their respective domestic law regimes. When doing so, these States have some flexibility regarding both the method of incorporation and the design of domestic liability regimes as long as it is effective for the purpose of the convention. This leeway has its roots in the prevailing view that provisions of international civil liability conventions do not directly bind the operator or owner engaging in environmentally hazardous activities,¹¹ however, this assessment has been occasionally disputed.¹²

The view taken here is that convention-specific assessments are required as the question of whether a convention imposes direct rights and obligations on domestic public and private actors (e.g. the operator or the owner) will depend on the convention under consideration and its interplay with both the international and national law perspectives on the issue. Some civil liability conventions leave little doubt that States parties’ intended all the aspects of a given liability regime to be implemented in domestic law.¹³ However, other agreements do not address transposition and their unconditional language offer the possibility of direct application by domestic courts.¹⁴ For example, in the Amoco Cadiz case, the US District Court considered the 1969 Convention on Civil Liability for Oil Pollution Damage as a part of French law and not of US law due to the lack of ratification.¹⁵ From a conflict-of-law perspective, it is not surprising that US courts seek to anchor the international convention in domestic law; nonetheless, it is remarkable that the court interpreted the Convention “in light of its legislative history and French Law”, referring to the French 1978 implementation act.¹⁶ In the Erika Oil Spill case, the Paris Court of Appeal (2010) and the Cour de Cassation (2012) directly applied 1992 Civil Liability for Oil Pollution Damage which was implemented by a French Decree in 1996.¹⁷

1999 Erika Oil Spill

The Erika was a single-hulled vessel owned by Tevene Shipping and chartered by TOTAL Transport Corporation (France) to transport heavy fuel oil from Dunkerque in France to Milazzo in Italy. The vessel was carrying 31,000 tonnes of oil when it was caught in heavy swells that caused the tanker to break in two on the night of the 13 of December 1999 some 45 nautical miles off the coast of Brittany. The hull breach resulted in 19,800 tonnes of the heavy fuel oil spilling into the ocean and polluting almost 400 km of the French coastline. In 2008, the Paris Criminal Court convicted the shipowner, an Italian company that declared the Erika seaworthy and TOTAL; the criminal conviction was confirmed by the Paris Court of Appeal which, however, exempted TOTAL from any civil liability with reference to the International Convention on Civil Liability for Oil Pollution Damage (CLC) ¹⁸ which places all civil liability with the shipowner. In 2012, the Cour de Cassation, France highest court, confirmed TOTAL’s criminal conviction and reserved the rest of its judgment to declare TOTAL liable for the damage. Even though the CLC makes the shipowner solely liable, other actors can be liable if they acted recklessly and with the knowledge that potential damage could result. Unlike the Court of Appeal, the Cour de Cassation decided that TOTAL, as the charterer, had committed a reckless act. Consequently, TOTAL was found to be severally liable with the shipowner, based on the CLC and French law. Damages were awarded under French Law comprising economic loss, moral prejudice and environmental harm.¹⁹ In parallel proceedings before a French Commercial Court, in the second instance the Court of Appeal in Rennes and finally the Cour des Cassation,²⁰ TOTAL was found liable after the European Court of Justice, in a preliminary ruling requested by the Cour des Cassation, decided that CLC compensation system is insufficient to fully compensate the victims: For civil liability purposes, an oil spill can be considered as a waste and the charterer is the producer of the product from which the waste came.²¹

Irrespective of direct references to civil liability conventions by domestic courts, it is a bridge too far to claim that these conventions impose an international legal obligation on States parties to directly apply the conventions’ provisions within their scope of application. As a rule, international treaties leave it to States to determine how they will give effect to their convention obligations. In fact, the status of any given civil liability convention can be quite diverse in various domestic law regimes and the general stance of international law is to respect national peculiarities. Therefore, the question of whether the liability of operators arises directly from international law cannot be answered in the affirmative without qualifications. If implementation is not explicitly addressed and the language of the provisions is clear and precise, civil liability conventions do not oppose the notion of direct liability obligations,²² which is of significance for domestic legal systems that lean towards a monistic approach, such as that of France.

Since 2003, the international community has been quiet in terms of further codification efforts regarding international civil liability.²³ That does not mean that liability, as a topic, is off the international negotiation table; however, the focus has shifted to an administrative approach to liability with public authorities being the decisive actors in pursuing redress. This shift in focus is illustrated by the 2010 Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress, which entered into force in 2018 (Chap. 14). Supplementing the Cartagena Protocol on Biodiversity (Article 27), the Nagoya-Kuala Lumpur Protocol applies to damage resulting from of border-crossing living modified organisms (LMO). Despite its administrative approach to liability, Article 12 of the Protocol addresses civil liability by obliging States parties to provide domestic rules and procedures address damage resulting from such organisms, either through their existing general rules on civil liability (tort) or by creating new special civil liability laws to address biodiversity damage. These existing or new civil liability laws should address four issues: damage, the standard of liability (strict or fault-based), the channelling of liability where appropriate and the right to bring claims (Article 12(3)). Apart from the enumeration of these elements, Article 12 makes almost no substantive specifications; only the element “damage” is rather convolutedly defined in Article 12 as “material and personal damage” associated with “an adverse effect on the conversation and sustainable use of biological diversity, taking into account risks of human health” (Article 12(2) in conjunction with Article 2(2)). This approach makes Article 12 deficient in terms of establishing an effective civil liability regime. Given the lack of actual cases involving damage caused by LMOs, the negotiating parties could not agree on the necessity for tort law harmonisation.²⁴ One can only speculate whether the States’ willingness to ratify the Nagoya-Kuala Lumpur Protocol (as of September 2022, 51 parties have done so) has been fostered by the underdeveloped Article 12 on civil liability.

Concerning the substantive specifications, the 13 environmental civil liability conventions under consideration address, inter alia, the following substantive issues which are of relevance for the formation of customary international law:

Relevant damage
Relevant activities
Causality
Standard of liability and possible defences
Claimant (access to justice)
Respondent
Compensation

Other aspects of the 13 civil liability regimes, such as the establishment of compensation funds, mandatory insurance, liability ceilings, statutory limitations, dispute settlement and procedural rules are too specific to the relevant civil liability regime to be generalised. Even though the insurability of environmental liability has high practical relevance and the duty of States to establish an insurance scheme for such liability is addressed in several instruments,²⁵ the following comparison focuses on the elements that determine liability for environmentally harmful activities rather than the financial safeguards ensuring effective compensation, which have various degrees of appropriateness for various risks.²⁶ However, some aspects of financial safeguard mechanisms are meaningful in the interpretation of the seven substantive issues under consideration here, especially the element of prompt and adequate compensation.

5.2.2 Relevant Damage

Civil liability conventions are designed to compensate an injured person by requiring the responsible actor to pay the economic costs of damage resulting from its activities (1992 CLC: quantifiable economic loss). Therefore, all of them focus on tort, i.e. damage to persons or property, while environmental damage²⁷ is only referenced through the (reasonable²⁸) costs of reinstatement, covering both cleaning up costs and restoration costs.²⁹ The 1993 Lugano Convention addresses and enhances the concept of environmental damage³⁰ by covering not only reinstatement of the environment as such but also preventive measures (1963 Vienna Convention: preventive measures if the authorities approve them according to its laws). It is equally difficult to identify a common threshold at which damage entails liability: Most conventions do not designate any threshold (e.g. 1993 Lugano Convention; 1992 CLC), whereas few require significant impairment (1960 Paris Convention; 1963 Vienna Convention, 1988 Wellington Convention).

Remarkably, the damage does not have to be transboundary to fall within the scope of the conventions, even though crossing borders may be required for the relevant activity (see e.g. 1999 Basel Protocol that applies to damage due to an incident occurring during a transboundary movement of hazardous wastes). That said, civil liability conventions concern activities where transboundary damage is particularly likely to occur and thus facility cross-border litigation, including activities in areas beyond national jurisdiction such as the high sea.

5.2.3 Relevant Activities

All civil liability conventions, except for the 1993 Lugano Convention and the Antarctica-specific 1999 Environmental Protection Protocol Annex VI, are sectoral, meaning they cover only one type of ultra-hazardous activity, such as:

The operation of nuclear installations,
The maritime transport of oil in bulk,
Antarctic mineral extraction activities,
The movement and disposal of hazardous wastes,
The carriage of bunker oil by sea,
Transporting dangerous goods by road, rail and river,
Exploring for and exploiting seabed mineral resources,
Engaging in hazardous activities that could have transboundary effects on transboundary waterways,
The operation of nuclear-powered ships,
The transportation of noxious and hazardous substances by sea.

The 1993 Lugano Convention covers any dangerous activity relating to dangerous substances, living modified organisms, micro-organisms and the operation of an installation or site dealing with hazardous waste.

5.2.4 Causation

Unsurprisingly, all of these conventions require a link between a given incident and damage done, which is often described with the phrase “caused by” or “results from” without getting involved in further details regarding the proximity of the activity or harmful event and the damage as this issue is left to the competent domestic court to decide. Some civil liability conventions contain a presumption of causality when different types of damage are not reasonably separable, under such conventions the entirety of the damage is deemed to have been caused by the activity in question.³¹

The determination of a causal link can pose considerable difficulties with regard to environmental damage. Article 10 of the 1993 Lugano Convention requires domestic courts to take into account the increased danger of causing damage that is inherent to the dangerous activity in question when considering evidence of the causal link between the incident and the damage or, in the context of the dangerous activity, between the activity and the damage.

5.2.5 Standard of Liability and Defences

All thirteen civil liability conventions impose strict liability for damage on the person in control of the activity, i.e. prima-facie liability without the necessity to prove intent or negligence. The notable exception is the1999 Basel Protocol which additionally prescribes fault-based liability on “any person” for their “lack of compliance with the provisions implementing the Convention or by his wrongful intentional, reckless or negligent acts or omissions”, without defining these terms.³²

All conventions make allowance for the validity of certain defences, which have to be proven by the respondent. Generally, recognised defences entail natural disasters (of an exceptional, inevitable and irresistible character), international war, hostilities, civil war or insurrection as well as intentional or grossly negligent acts or omissions by third parties.³³ Less commonly accepted is the defence that damage occurred via compliance with a compulsory measure of a public authority and dangerous activities undertaken lawfully in the interest of the person who suffered the damage (e.g. Article 8 b and e of the 1993 Lugano Convention). In the special case of shipping activities, incidents arising from negligence or other wrongful acts of public authorities responsible for the maintenance of lights or other navigational aids is accepted as a valid defence.³⁴

5.2.6 Claimant (Access to Justice)

None of the thirteen civil liability conventions refer to the entity entitled to bring a claim as it is assumed that the entity suffering damage can do so. The only convention to give standing to associations or foundations is the 1993 Lugano Convention with regard to requests for preventive and reinstatement measures (Article 18: actio popularis).

Aside from issues of standing, access to justice in these conventions entails expeditious and equal access to domestic courts and remedies on a non-discriminatory basis. Clauses addressing these issues are included in a number of conventions, such as Article 14 of the 1960 Paris Convention, Article 8 of the 2003 Kiev Protocol.

Furthermore, access to justice also entails questions of jurisdiction, which refers to the competence of the court to decide on the compensation claim brought before it. States are called on to ensure that their courts possess the necessary jurisdiction to hear compensation claims covered by the given convention. The civil liability regimes under consideration generally provide for criteria to establish jurisdiction in cases involving transboundary damage. For example, the jurisdiction for claims under the nuclear conventions is vested in the domestic courts of the State where the incident has occurred (Article 13(a) of the 1960 Paris Convention, Article XI(1) of the 1963 Vienna Convention) whereas for the 1992 CLC and the 1996 HNS Convention jurisdiction is vested in the domestic courts of the affected State. The 1989 CRTD, the 1993 Lugano Convention and the 1999 Basel Protocol all offer a choice of forum between the courts of the State where the damage was suffered, the State where the incident occurred or the State where the defendant is habitually resident.³⁵

5.2.7 Respondent

Most of the conventions identify the actors in control of the hazardous activity as the party liable for any damage caused by that activity. These actors are usually the ‘operator’, ‘carrier’³⁶ or, less commonly, the ‘owner’³⁷ because they are in the key position to take preventive steps to eliminate or reduce the risk of damage. When dealing with cases of strict liability, the 1999 Basel Protocol sets forth a detailed system of liable persons based on the point in time and step in the transportation or disposal process when the damage occurred to determine if, for example, the notifier, disposer or exporter of the waste is at fault. The legal channelling of strict liability to the operator, carrier or owner is one of the principal aims of civil liability conventions.³⁸ However, the channelling of liability by international liability conventions does not in and of itself preclude the application of national tort law or environmental liability laws of the forum State.³⁹ Even though the above-stated object and purpose of the civil liability conventions should not be undermined by domestic tort laws, civil liability conventions do not preclude the tortious liability of actors other than the strictly liable operator or owner.

5.2.8 Compensation

In some civil liability conventions reference to ‘prompt and adequate compensation’ is made in the preamble (1993 Lugano Convention; 1977 London Convention, 2001 Bunker Oil Convention) or in the first article (Article 1 of the 1993 Lugano Convention; Article 1 of the 2003 Kiev Protocol). This placement shows the significance of such compensation as a key outcome or, in the cases where it appears in the preamble, as an aid in the interpretation of that convention’s provisions. While none of the conventions elaborate details such as timeframes and valuation methods for environmental damage, they do, however, safeguard prompt and adequate compensation through insurance schemes to ensure the effectiveness of compensation regimes. Under the revised 1962 Vienna Convention, both the reinstatement and the preventative costs are only compensated to the extent determined by the law of the competent court (Article 1(k) (iii)(vii)).

All civil liability conventions, except for the 1993 Lugano Convention, contain a provision allowing States parties to limit the liability of the operator or owner, although these limits vary greatly in terms of the owner’s or operator’s financial exposure.

5.3 Administrative Approaches to Liability: The Nagoya-Kuala Lumpur Supplementary Protocol

The 2010 Nagoya-Kuala Lumpur Supplementary Protocol to the 2000 Cartagena Protocol on Biosafety entered into force in March 2018 and deals with liability and redress in cases of damage to biodiversity caused by living modified organisms (LMO).⁴⁰ As of September 2022, of the 173 parties to the Cartagena Protocol, 51 have ratified the Nagoya-Kuala Lumpur Protocol, which adopted an administrative approach to liability accompanied by one very shallow provision on civil liability (Article 12). The administrative approach to liability means that the Nagoya-Kuala Lumpur Protocol obliges its parties to require the operator to take action if there is (1) sufficient likelihood of damage, or (2) damage occurs. In cases where damage occurs, the operator is required to inform the authorities, evaluate the damage and take appropriate response measures. The authorities themselves may implement appropriate response measures where the operator fails to take the required action. In contrast to civil liability regimes, the responsibility for any damage is attached to administrative processes because the authorities are empowered to implement the system.⁴¹ In contrast, civil liability regimes allow the injured person to initiate proceedings against the operator through the State judiciary. The pivotal role of the administrative authorities is highlighted in Article 5 Nagoya-Kuala Lumpur Protocol which dictates that the authority determines which response measures shall be taken by the operator and decides whether to recover costs.

The administrative approach to liability is a rather recent development given that its origins trace back to the US 1980 Comprehensive Environmental Response, Compensation and Liability Act.⁴² Through this act, the US Environmental Protection Agency was given the power to seek out those parties responsible for any release of pollutants and compel them to cooperate in the clean-up. Decades later, the EU introduced the administrative approach in its Environmental liability directive 2004/35/EC,⁴³ which predefined the EU’s negotiation position in the working groups and meetings that led to the adoption of the Nagoya-Kuala Lumpur Protocol. However, it is worth noting that this Protocol does not internationalise liability and redress as other international civil liability conventions do, such as those covering damages caused by oil pollution and nuclear energy accidents.⁴⁴ Instead, an alternate mechanism was agreed upon whereby State parties assign their own standard of liability based on their respective domestic laws (Article 12).

5.3.1 Relevant Damage

The term “relevant damage” in The Nagoya-Kuala Lumpur Protocol refers to “significant adverse effect on the conservation and sustainable use of biological diversity”.⁴⁵ The damage has to be measurable or otherwise observable, taking officially recognised and scientifically-established baseline valuations into account.⁴⁶ Under the administrative approach to liability, damage does not determine the parameters of compensation but functions as a trigger for the operator or the authority to take action.⁴⁷

5.3.2 Relevant Activities

It is not an ultra-hazardous activity that is central to the Nagoya-Kuala Lumpur Protocol, rather it is a potentially ultra-hazardous substance, namely the above-mentioned LMOs. Consequently, liability is linked to the direct or indirect control of the potentially ultra-hazardous LMO in any given case.

5.3.3 Causality

Article 4 Nagoya-Kuala Lumpur Protocol requires that a causal link is established between the damage and the LMO in accordance with domestic law without being more specific about the types and standards of causation. In this regard, it follows in the footsteps of the civil liability conventions.

5.3.4 Standard of Liability and Possible Defences

The Nagoya-Kuala Lumpur Protocol does not determine the standard of liability of the operator in direct or indirect control of LMO as the administrative approach to liability differs in this respect from the civil liability approach. However, the Protocol requires neither intent nor negligence on the part of the operator to assign liability because its duties are triggered by the event of damage alone (Article 5(1)). Being involved in an authorised use of LMOs does not exonerate an operator for their unintentional transboundary movement (Article 3(1) and (2)), however, force majeure and civil unrest does. In addition, the States parties are allowed to adopt in their domestic laws any other exemptions to the operators’ response duties. In addition, States parties can, in their domestic laws, define under which conditions the operator may not be required to bear the costs and expenses of the public-sector response to the damage (Article 5(5)). Consequently, the standard and extent of liability for private actors in the event of damage strongly depends on the specifics of each State’s implementation of the Nagoya-Kuala Lumpur Protocol.

5.3.5 Claimant (Access to Justice)

It is a defining characteristic of the administrative approach to liability that it does not deal with an injured person’s access to justice. The decision of the authorities is subject to procedural safeguards, including administrative or judicial review (Article 5(6)). However, this provision safeguards the operators’ right of appeal, not the rights of injured persons dissatisfied with the authorities’ decisions. In addition, the Nagoya-Kuala Lumpur Protocol does not provide for cross-border enforcement of administrative decisions.⁴⁸ However, it does not exclude the possibility of civil action for claimants (Article 12).

5.3.6 Respondent

The operator who is direct or indirect control of the LMO, typically the permit holder, distributor, dealer, producer and carrier, is obliged to take preventive and/or restorative response measures (Article 2 (2)(d)) in the event of damage to the environment and, if necessary, to reimburse costs of such measures.

5.3.7 Compensation

In contrast to civil liability, the administrative approach to liability does not deal with compensation but remediation. The operator bears the cost of the restoration of biological diversity or has to reimburse the authorities’ efforts.

5.4 Non-binding Instruments on Civil Liability Adopted by International Bodies and Conferences

Several non-binding instruments on civil liability have been adopted by international conferences and international organisations that deal comprehensively or selectively with aspects of civil environmental liability. The collection of recommendations and guidelines presented here does not claim to paint a complete picture of all the liability approaches discussed and adopted in international fora, such as the OECD.⁴⁹

Civil Liability Guidelines

CoP Barcelona Convention, Guidelines for the Determination of Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area (Mediterranean-Sea Guidelines 2008);⁵⁰

UNEP, Guidelines for the development of domestic legislation on liability, response action and compensation for damage caused by activities dangerous to the environment, adopted by the Governing Council of the United Nations Environmental Programme in decision SS.XI/5, part B of 26 Feburary 2010 (UNEP Liability Guidelines 2010).

UNEP, Guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters, adopted by the Governing Council of the United Nations Environment Programme in decision SS.XI/5, part A of 26 February 2010 (UNEP Access to Information and Justice Guidelines 2010);

UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters, 1990 (UNECE Inland Water CoC 1990).⁵¹

Reports, white books and legislative activities within the framework of the EU are not discussed here as the EU finally opted for an administrative approach to environmental liability (EU Liability Directive 2004/35/EC⁵²). With regard to the documents under consideration, the following key aspects can be identified:

5.4.1 Relevant Damage

The Mediterranean-Sea Guidelines differ between ‘traditional damage’ and ‘environmental damage’. ‘Traditional damage’ covers loss of life or personal injury, loss of or damage to property, pure economic loss, costs of reinstatement measures and costs of preventive measures.⁵³ Environmental damage, on the other hand, refers to ‘significant’ and ‘measurable’ adverse changes in a natural area or to a biological resource or a measurable impairment of a natural area or biological resource service which may occur directly or indirectly.⁵⁴ The UNEP Liability Guidelines specify both ‘significant’ and ‘measurable’: the ‘significance’ of the damage is to be determined based on several factors including long-term change to the environment. Damage is ‘measurable’ if methods of valuation can quantify it, taking into account scientifically established baselines that are recognised by the relevant public authority.⁵⁵ The above-mentioned UNECE code of conduct for inland waterways deals with significant transboundary impairment of water quality and significant transboundary damage to aquatic ecosystems.⁵⁶ The code’s Annex H provides a list of measures for the physical and monetary assessment of damage, including an evaluation of the impacts on the use of the affected waterways for recreational, cultural, economic and other uses as well as an examination of the related ecosystems.⁵⁷

5.4.2 Relevant Activities

The UNEF Liability Guidelines refer to “activities dangerous to the environment” and leave it to domestic law to decide which activities should be classified as such.⁵⁸ Due to the special conventional framework within which the Mediterranean-Guidelines operate, they apply to activities covered by the Barcelona Convention and its Protocol which governs the pollution of the Mediterranean Sea Area caused by dumping and discharge from ships and land-based sources as well by the exploration and exploitation of sea areas. The UNECE code of conduct on inland waterways covers the direct and indirect introduction of hazardous substances as a result of an ‘incident’⁵⁹

5.4.3 Causality

Both the Mediterranean-Sea Guidelines and the Liability Guidelines refer to causality by requiring a “causal link” between the incident and the damage” as well as the activities of the operator and the damage, although no specifics in this regard are forthcoming.⁶⁰ In addition, the Liability Guidelines address multi-party causation, in the case of which “liability will be apportioned among the various operators based on an equitable assessment of their contribution to the damage.”⁶¹

5.4.4 Standard of Liability and Possible Defences

All the guidelines cited here and the UNECE code of conduct on inland waterways establish strict liability without it being necessary to establish fault or negligence.⁶² However, the Mediterranean-Sea Guidelines only impose strict liability for activities that are covered by any of the seven protocols to the Barcelona Convention; for all other polluting activities, States may rely on fault-based liability provision.⁶³ The UNEP Liability Guidelines apply ‘strict liability’ only to an operator, whereas all other persons will only be held ‘liable’ in cases of their non-compliance with applicable statutory or regulatory requirements (a violation of statutory obligations should be considered as a fault per se) or if their wrongful, intentional, reckless or negligent acts or omissions (fault) have caused or contributed to the damage.⁶⁴

The Mediterranean-Sea Guidelines contain provisions on exonerations, which can be grouped into four categories: (1) acts of God or force majeure; (2) armed conflicts, hostilities, civil wars, insurrections, acts of terrorism; (3) contribution through an act or omission of a third party; (4) as a result of compliance with compulsory measures imposed by a competent public authority.⁶⁵

5.4.5 Claimant (Access to Justice)

The Mediterranean-Sea Guidelines asks the parties to the 1976 Barcelona Convention to ensure that natural and juridical persons that are victims of ‘traditional damage’ can bring actions for compensation in the widest manner; in contrast, action for compensation with respect to environmental damage should be made possible for ‘the public’,⁶⁶ i.e. the State or other public entities as trustees of the public interest in the preservation of the quality of the environment.⁶⁷

The 2010 UNEP Access to Information and Justice Guidelines are primarily concerned with the enforcement of the right to access environmental information and facilitate public participation. Its guideline 19 captures the essence of the right to access to justice by referring to effective, fair, open, transparent and equitable proceedings as well as effective procedures for timely review by a court of law as well as other independent and impartial bodies. Guideline 18 requires States to provide for a broad interpretation of standing in proceedings concerning environmental matters. In a somewhat similar vein, the UNECE code of conduct on inland waterways elucidates that States should endeavour to provide persons in other countries with access to justice without discrimination.⁶⁸

Guideline 8 of the UNEP Liability Guidelines leaves the decision of whether or not to allow claims for environmental damage to domestic law.⁶⁹

5.4.6 Respondent

Both Guidelines and the UNECE code of conduct on inland waterways reference the polluter-pays principle.⁷⁰ Therefore, they designate the operator as the strictly liable entity and respondent of a claim, with the reference that the operator is the one supervising and exercising control over the activity in question.⁷¹

5.4.7 Compensation

Whereas the UNEF Liability Guidelines call for prompt and effective response action on the part of the operator to an incident, it remains non-specific as to how compensation should be provided. In contrast, the UNECE code of conduct on inland waterways calls upon States to ensure in their national legislation prompt and adequate compensation for damage caused by accidental pollution.⁷²

5.5 Drafts and Proposals by Private Law Associations

Two resolutions adopted by private law associations, the International Law Association (ILA) and the Institut de Droit International (IDI), address elements of civil liability regimes, albeit from different perspectives and with different objectives. Whereas the IDI resolution is a recommendation for negotiations and the management of environmental liability and responsibility regimes established under international agreements, the ILA resolution focuses on transnational enforcement of environmental rights and claims for damages in national jurisdictions. Accordingly, the ILA resolution leaves many details of environmental civil liability to the domestic law of the forum State, i.e. either the State in which the damage arose or the State in which the event or the risk occurred that gave rise to the damage. The two resolutions nevertheless complement each other as the domestic law to which the ILA resolution refers may reflect international civil liability rules along the line of the IDI resolution.

Recommendations by Private Law Associations

Institut de Droit International, Eighth Commission, Rapporteur Francisco Orrego Vicuña, Responsibility and Liability under International Law for Environmental Damage, Strasbourg, 4. September 1997 (IDI resolution);⁷³

International Law Association, Transnational Enforcement of Environmental Law, adopted by the 72nd Conference of ILA in Toronto on 7 June 2006 (ILA resolution).⁷⁴

Both resolutions are the product of lengthy discussions, the extent of which is not always reflected in their condensed language. However, only the adopted texts serve as the source material for the present summary of their core elements.

5.5.1 Relevant Damage

The rules proposed by the ILA Committee are primarily procedural and, therefore, do not contain any specifications on the relevant environmental damage and risks that trigger a claimant’s right to gain access to a court, apart from the fact that the incident has to be transboundary in character. The resolution’s focus is not on the significance of this damage but the decisiveness of the possible outcome of the proceedings for the enjoyment of the plaintiff’s environmental and human rights.⁷⁵

According to the IDI resolution, international environmental regimes should conceptually distinguish between environmental damage and tort damage, although it depends on the regime’s nature and purpose that will determine what type of damage it should address.⁷⁶

5.5.2 Relevant Activities

The IDI resolution stipulates that it is for the international environmental regimes in question to define the environmentally hazardous activities that may engage the responsibility for harm alone or strict civil liability. If desired, this definition can single out (a) specific sectors of activity, (b) lists of dangerous substances, (c) list of dangerous activities and (d) activities undertaken in particularly sensitive areas.⁷⁷

5.5.3 Causality

Rule 6 of the ILA resolution contains the common reference that the issue of causality is to be regulated by the national law of the forum State.⁷⁸ According to the IDI resolution, a “causal nexus between the activity undertaken and the ensuing damage shall normally be required under environmental regimes.”⁷⁹ By way of exemption from this rule, it proposes a presumption of causality relating to the hazardous activities in question or, alternately, to cumulative or long-standing damage not attributable to a single entity but based on sectoral activity, such as bulk oil transport.⁸⁰

5.5.4 Standard of Liability and Possible Defences

The ILA resolution states that the standard of liability is to be regulated by the national law of the forum state.⁸¹ The IDI resolution specifies that imposing strict liability on operators is the preferred regime,⁸² although it also contains exemptions from civil liability, namely armed conflicts, acts of terrorism, natural disasters of an irresistible character and other similar situations as well as intentional or grossly negligent acts or omissions of a third party.⁸³

5.5.5 Claimant (Access to Justice)

Rule 3 of the ILA resolution deals with ‘standing’: “Every State shall ensure that any person having ‘a sufficient interest’ has the right of access to the competent domestic court or administrative authority to challenge acts or omissions by private persons and public authorities relating to the environment.” What constitutes sufficient interest shall be decided based on the applicable national law but should be consistent with the objective of widest possible access to justice and, therefore, shall include environmental NGOs. The IDI resolution recommends that international environmental regimes should make flexible arrangements to facilitate the standing of claimants but allows for requirements such as the affected party having a direct legal interest to make an environmental claim under international law.⁸⁴

The jurisdictional Rule 4 of the ILA resolution stipulates that the plaintiff has the option to sue the defendant in a court of the State where (a) the defendant is domiciled or resident; or (b) the act or omission that caused the injury occurred or may occur; or (c) the injury arose or may arise.

5.5.6 Respondent

The ILA resolution leaves the question of who the respondent is to be regulated by national law,⁸⁵ as the resolution’s primarily concerned with the claimant’s access to justice. In contrast, the IDI resolution explicitly mentions the polluter-pays principle in Article 13 and assigns primary liability to operators.⁸⁶

5.5.7 Compensation (Prompt and Adequate)

Rule 6(f) of the ILA resolution leaves it to the applicable national law to decide whether a right to compensation may be assigned or inherited. Article 10 IDI resolution obliges States to ensure that operators have adequate financial capacity to pay reasonable compensation resulting from lawsuits brought against them. This includes the requirement that operators have adequate insurance and other financial security.⁸⁷

5.6 ILC Draft Principles on the Allocation of Loss

In 2006, the ILC presented to the UN General Assembly a draft declaration of principles on the allocation of loss in cases of transboundary harm arising out of hazardous activities. This was intended to serve as a parallel instrument to the 2001 draft articles on the prevention of transboundary harm from hazardous activities. The two drafts are interrelated: both, the 2006 ILC Draft Principles on Allocation of Loss and the 2001 Articles on Prevention of Transboundary Harm are concerned with primary rules, not secondary rules on responsibility. It is however no accident that the 2006 draft stipulates ‘principles’ which are potentially relevant for a wide range of harmful activities, which indicates that the principles are not intended to be the basis of a possible international convention on the subject. Rather, they are general and residuary in character and are intended to provide guidance to States and lay a foundation for what should be dealt with in future agreements.⁸⁸ Most importantly, the ILC itself labelled the draft principles as an effort to contribute “to the process of development of international law in this field”,⁸⁹ meaning that the ILC did not claim to put existing rules of customary international law into writing.⁹⁰ That said, the ILC’ caution cannot be taken as evidence that no rules of customary international law addressing the allocation of loss arising out of harmful hazardous activities existing.

The ILC’s work on the draft principles was overshadowed by the controversial differentiation between responsibility for unlawful acts and liability for the consequences of lawful activities (Chap. 3 ¶ 4 (Sect. 3.2)), a conceptual distinction that was scrutinised by States in their comments.⁹¹ In addition, while acknowledging the need for an effective liability regime, not all States were overly keen to develop a general international legal regime on liability.⁹² Others voiced doubt as to whether general international law can achieve the necessary level of harmonisation of substantive as well as procedural law to enable claims from nationals of one State to be filed before national tribunals of a foreign State.⁹³ These doubts were expressed by the States before the ILC adopted the draft principles in 2006 and in the 14 years since its adoption little has changed regarding these underlying reservations. The reports of the Secretary-General on the comments and observations of governments to the 2006 draft principles make it clear that, while the main thrust of the statements is favourable, the principles’ possible existence under customary international law is met with widespread scepticism. By way of example, Germany did not see any need to comprehensively codify the regime governing environmental liability as its prevailing view was that the focus should be on agreements specific to individual sectors as they could take account of each sector’s particular features.⁹⁴ New Zealand considered it best simply to acknowledge and reiterate that the principles in their present form were a major contribution to the achievement of a consistent, coherent and fair international regime for transboundary harm and that they would continue to grow in significance.⁹⁵ The US stressed that in their view the draft principles go beyond current international law and practice and were innovative and aspirational in character rather than descriptive,⁹⁶ a view shared by Australia and Lebanon.⁹⁷

So far, the draft principles have not been cited by international jurisprudence with only one exception, namely the Inter-American Court of Human Rights. In its Advisory Opinion on Environment and Human Rights, the Court refers by way of example to the principles in the context of States’ duty to mitigate if environmental damage occurs.⁹⁸ Then again, the Court does not mention the draft principles in the context of access to justice in cases of transboundary harm,⁹⁹ which can be explained by the fact that human rights courts consider access to justice as a means of redressing any human rights violation resulting from the failure to comply with environmental standards, while the ILC Draft Principles are not tied to a violation of any legal obligations.

5.6.1 Relevant Damage

Concerning possible elements of customary international law, the cornerstones of the ILC Draft Principles can be summarised by the following: Principle 1 clarifies that the draft principles apply to “transboundary damage” and do not cover purely domestic incidents and environmental damage to common spaces.¹⁰⁰ The word damage here denotes that harm has actually occurred, i.e. the risk of harm has been realised, the damage is significant (Principle 2 lit a) and must be caused by the “physical consequences” of the activities in question, in contrast to intangibles, such as political consequences.¹⁰¹ The relevant categories of damage are those typically covered by tort law, namely damage to persons and property, including cultural heritage as well as loss or damage by impairment of the environment, costs of reasonable reinstatement of property and environment and costs of reasonable response measures (see definition in Principle 2 (a)). Environmental damage is understood in a very broad way to include damage to abiotic natural resources (water, air, soil, minerals) and biotic natural resources (living and once-living organisms in an ecosystem) as well as the interaction between biotic and abiotic factors and the characteristic aspects of the landscape (Principle 2 (b)). Generally speaking, the draft principles aim at treating all factors and aspects as a part of an all-encompassing concept of ‘environment’ that has a value independent of human life and property and addresses the environment per se.¹⁰²

5.6.2 Relevant Activities

Only hazardous and ultra-hazardous activities come within the scope of the draft principles as these are undertakings that involve, as a minimum, the risk of causing significant transboundary harm should an incident occur. To qualify for the hazardous or ultra-hazardous classification, it suffices that an activity has a high probability of causing significant transboundary harm even if there is only a low probability of harm causing incident occurring. This combination of low probability of harm but with potentially catastrophic consequences separates these activities from any other.¹⁰³ The ILC opted for this abstract definition as a catch-all for relevant activities and to avoid an exhaustive but incomplete list of activities that could result from more precise wording. Only activities not prohibited by international law fall within the scope of the draft principles.¹⁰⁴

5.6.3 Causality

The causal connection between damage and the source of activity is not specified in the draft principles, which only speak of “activity which involves the risk of causing significant harm” (Principle 2 (c)). In the commentary, the ILC is content with stating that the principle of causation is linked to questions of foreseeability (‘adequacy’) and proximity or direct loss while also pointing at legal developments in domestic law which suggest that the ‘modern’ causation test only requires a “reasonable imputation” of damage.¹⁰⁵ For operators to calculate the risk of harm to be covered, they have to take the modern dynamics of the law governing causation into account (from the test of ‘proximate cause’, to ‘foreseeability’ and even to a ‘general capability’ test), which can multiply risk factors.¹⁰⁶ In other words, the draft principles are not committed to a specific causation model that is then vulnerable to being ignored by domestic courts.

5.6.4 Standard of Liability and Possible Defences

Hidden in Principle 4, dealing with prompt and adequate compensation, is the State obligation to impose strict liability on operators (para. 2 of Principle 4: “such liability should not require proof or fault”). Interestingly, the ILC recognises that international instruments provide for a limited set of uniform exceptions to liability, such as war, exceptional natural disasters, compulsory measures imposed by public authorities, wrongful intentional conduct of a third party.¹⁰⁷ However, instead of enumerating these exceptions, Principle 4 para. 2 only stipulates “any conditions, limitations or exceptions to such liability shall be consistent with draft principle 3”, meaning that the exceptions should not serve to needlessly undermine the purpose of the civil liability regime, namely to provide both prompt and adequate compensation to victims as well as ensure the preservation and protection of the environment.

5.6.5 Claimant (Access to Justice)

Principle 2 (f) defines ‘victim’ as being either natural or legal persons and can range from a single person, municipality, State or private company through to groups thereof. A ‘victim’ is a person or a group of persons who suffered damage and, in this sense, the term ‘victim’ implies the existence of a legal interest which. This legal interest is not necessarily limited to personal injuries and property damage but could also encompass impairment to the environment as long as the claimant (victim) suffered an injurious impact e.g. as a municipality or public trustee charged with the protection of natural resources. The ILC acknowledged that the status of being a victim is linked to the question of standing but leaves the decision on this matter to domestic legal systems, e.g. whether standing requires a direct legal interest of an individual claimant or whether an actio popularis pursued by environmental organisations is permitted.¹⁰⁸ Irrespective of such details, Principle 6 emphasises that victims of transboundary damage should have access to remedies in the State of origin based on national treatment (non-discrimination).

5.6.6 Respondent

The term ‘operator’ is purely functional, i.e. it is based on the factual determination as to who has the use, control and supervision of the object and/or material at the time when an incident occurred (Principle 2 (g). Channelling liability to the operator rather than the owner (in contrast to the 1992 Protocol to the International Convention on Civil Liability for Oil Pollution Damage) is based on the notion that an entity that creates a high-risk situation in pursuit of economic benefit must bear the burden of any negative consequences that result therefrom.¹⁰⁹

5.6.7 Compensation

Principle 4 addresses the necessity of prompt and adequate compensation. Not only must the State of origin¹¹⁰ ensure prompt and adequate compensation by putting into place an appropriate liability regime but also ensure prompt and efficient access to justice.¹¹¹ According to the ILC, the duty of States to ensure prompt and adequate compensation can be traced back to Trail Smelter,¹¹² which was a case involving diplomatic protection¹¹³ and international dispute settlement. Indeed, States may provide for recourse to international claims settlement procedures as highlighted in Principle 6 (4). The ILC did not address the tension between a victim’s right of access to justice in the State of origin and inter-State dispute settlement solutions, including ex gratia payments by the State of origin.¹¹⁴

5.7 Customary Duty to Establish a Civil Liability Regime

It is the common understanding that the existing civil liability conventions are expressions of the polluter-pays principle (Chap. 3 ¶ 38 (Sect. 3.3.3)) because they are designed to ensure that polluters are financially responsible and accountable to victims, which is the remedial dimension of the principle.¹¹⁵ By way of example, the 3rd recital of the 2003 Kiev Protocol reads: “Taking into account the polluter pays principle as a general principle of international environmental law, accepted also by the Parties to the above-mentioned Conventions.” The close link between the polluter-pays principle and civil liability is also illustrated by Principle 22 of the Stockholm Declaration and Principle 13 of the Rio Declaration, both of which urge States to advance international law regarding liability and compensation for the victims of pollution and for environmental damage. As a matter of practice, the principles receive broad support, both internationally and domestically, and are often referred to when justifying legal steps being taken against private polluters.¹¹⁶

2010 BP Deepwater Horizon Explosion

US President Barack Obama declared the 2010 ‘Deepwater Horizon’ explosion and resultant oil spill as “the worst environmental disaster in U.S. history”.¹¹⁷ BP announced it would take full responsibility for managing the oil spill and clean-up, committing to paying ‘legitimate’ claims for damage. However, the determination of liability for the accident was complicated as BP only owns a 65% stake in the oil well that was the source of the disaster. The Obama administration created the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling to address the various issues surrounding the spill and its aftermath. In the US, the liability of oil companies for accidentally-generated damage is capped at $US75 million.¹¹⁸ Once this has been reached, victims (both companies and individuals) can apply to a reserve fund supported by a tax on oil companies, however, the total cost here cannot exceed $US1 billion. Given the enormous costs associated with the incident, and at the request of the US federal government, BP agreed to create a US$20 billion claims fund, the Gulf Coast Claims Facility (GCCF). In December 2010, the US federal government announced that it was suing BP and the other companies involved in the accident to establish their civil liability.¹¹⁹ In 2012, class actions of individuals and businesses against BP were settled and in February 2013, the civil lawsuit filed by the US federal government and several US States started and ultimately resulted in the judge finding BP grossly negligent for its role in the oil spill. In 2015, BP agreed to pay about US$18.7 billion in damages for the water pollution caused by the spill.

However, despite being an important general principle of international environmental law, the polluter-pays principle has not solidified into a general rule that imposes specific obligations on States, in contrast to the prevention principle (Chap. 3 ¶ 20 et seq (Sect. 3.3.2)). The polluter-pays principle is rather the rationale behind and conceptional foundation of civil liability conventions and related instruments as well as one important point of reference for their interpretation and application (Chap. 3 ¶ 38 et seq (Sect. 3.3.3)).

In the light of the foregoing, the question which needs answering here is whether or not existing civil liability instruments, supported and reinforced by the polluter-pays principle, have the potential to inspire a rule of customary international law that provides for a general duty of States to ensure the liability of the polluter. At this point, it is worth recalling that the assumption of a duty under customary international law to provide for an environmental civil liability regime requires established general practice on the part of States (Chap. 3 ¶ 15 et seq (Sect. 3.3.2)) and, in fact, State practice in this area supports the notion that this criterion is well on its way to being fulfilled.¹²⁰ Some States have bespoke environmental compensation laws that impose strict liability at least for some hazardous industrial activities;¹²¹ while all States have general tort laws as a part of their civil code or through their common law. However, while general civil liability systems recognise strict liability for certain hazardous activities they generally require some degree of fault or negligence to be involved in an environmentally damaging incident. This requires courts to rule on whether the liable party breached a standard of care by weighing the risk of their activity against the cost and effectiveness of precautions to reduce that risk.¹²² Without going into the national peculiarities of different national tort law regimes (Sect. 6.2), their application to environmental damage reveals that the customary law issue lies with each State’s subjective opinio iuris, i.e. the acceptance of the liability practice as required by international law.

With a view to the methodological considerations discussed in Chap. 3 (Chap. 3 ¶ 15 et seq (Sect. 3.3.2)), the first argument against the acceptance of a customary duty to ensure environmental civil liability is an extremely cautious if not lacking ratification practice. The fact that only four of the thirteen civil liability conventions have obtained the necessary number of ratifications for the treaty to enter into force, despite very low thresholds in some cases, does not prima facie support the notion of States’ opinio iuris establishing a customary duty to ensure environmental civil liability. However, a State may have very specific reasons for not ratifying a civil liability convention in which it was involved in the negotiation and adoption processes. Such reasons may vary from its dissatisfaction with the channelling of liability to certain actors, the low liability ceiling¹²³ or the implications of governmental permits for liability.¹²⁴ These individual points of criticism regarding a particular convention cannot be used to determine a State’s degree of conviction that international law requires harmonised civil liability regimes for certain hazardous activities (opinio iuris).

Concerning non-binding documents adopted by international organisations, the declared purpose of each respective guideline and document has to be considered. For example, the 2010 UNEP Liability Guidelines for the development of domestic legislation on liability states in its opening paragraph that “the purpose of the present guidelines is to highlight core issues that States will have to resolve should they choose to draft domestic laws and regulations on liability.”¹²⁵ And finally, the 2006 ILC Draft Principles on the Allocation of Loss, especially Principle 4,¹²⁶ have not taken root in international jurisprudence and practice, which makes it difficult to argue that Principle 4 was progressive in 2006¹²⁷ but is today customary international law that obliges States to take all necessary measure to ensure civil liability.

One of the most compelling arguments against the existence of a customary rule that obliges States to provide for environmental civil liability is the 1993 Lugano Convention and its ill-fated relationship with the European Union. As is well known, the Lugano Convention was negotiated under the auspice of the Council of Europe but has not been ratified by a single State. One of the reasons for this reticence to ratify is the EU and its 2004 Environmental Liability Directive.¹²⁸ In contrast to the Lugano Convention, this Directive follows an administrative approach by channelling environmental claims via public authorities to the operator.¹²⁹ Initially, the Lugano Convention’s civil liability scheme provided important inspiration for the Commission and its early approach to environmental liability, however, the Commission then made a U-turn and developed an environmental administrative liability approach using the Lugano Convention as an example of what not to do.¹³⁰ The criticism voiced by EU Member States concerned, inter alia, the Convention’s broad definition of dangerous activities and the all-encompassing definition of environment, but it was the competing approach to environmental liability that delivered the final blow to the 1993 Lugano Convention from the EU’s perspective. Without drawing any general conclusions from or passing judgment on the EU’s approach to environmental liability, it is a matter of fact that civil liability is not the only choice for States. For example, the 2010 Nagoya-Kuala Lumpur Protocol establishes an administrative approach to liability accompanied by a provision on civil liability (Article 12) which is considered a complementary option (Chap. 14; Sect. 5.3). Regardless of whether environmental pollution can be effectively prevented by one approach to liability more effectively than another, the legislative options are indeed manifold. For example, a number of developing countries have imposed an obligation on local governments to provide direct and prompt compensation to victims of environmental harm (government-pays approach), allowing these public bodies to act in subrogation against the individual polluters when possible.¹³¹ The reason for allocating the primary role to provide compensation to local and central governments are manifold: ineffective local civil court systems and the State appearing to its public to be more benevolent and economically considerate (preventing bankruptcy and job loss) being just two. In any case, the diversity of existing liability models illustrates that an environmental civil liability regime is only one of many legislative options supported by the polluter-pays principle.

From the foregoing, it follows that the lack of opinio iuris has hampered the emergence of a rule of customary international law which obliges States to establish an environmental civil liability regime along the line of existing civil liability conventions. Principle 13 of the Rio Declaration expresses a progressive obligation of States to develop national laws regarding liability and compensation for victims of pollution and other environmental damage but leaves the actual model each State adopts to its own political discretion. Having said that, a growing number of environmental liability provisions in domestic laws, e.g. Articles 65–69 of the Chinese Tort Liability Law¹³² and the strict liability under the Japanese Air Pollution Control Act¹³³ add State practice to the nascent opinio iuris and are in line with Principle 13, namely that domestic laws should address, in one way or another, environmental tort, damage and compensation. Even though the polluter-pays principle does not favour or demand one specific approach to liability and compensation at the national level national (the Japanese Air Pollution Control Act combines the administrative with the civil liability approach¹³⁴), it can be argued that the preventive aspect of the polluter-pays principle has a limiting effect on policy options by not supporting models that purposefully and effectively shield the actual polluter from recourse and responsibility (Chap. 3 ¶ 38 et seq (Sect. 3.3.3)).

With the above in mind, the following observations seek to identify international legal manifestations of liability elements that guide the national implementation of the polluter-pays principle.

5.8 Legal Manifestations of Liability Elements in Public International Law

5.8.1 Relevant Damage

In the light of the polluter-pays principle, there is a noticeable tendency in international law to address environmental damage in a way that reflects both the economic and more intangible value of biological diversity and the goods and services derived from increasingly rare unspoiled natural environments. Principle 13 of the Rio Declaration and the ILC Draft Principles point in this direction. Although not applied consistently, the ICJ has recognised the intrinsic value of the environment for the law of State responsibility in the Wetland Compensation case (Sect. 3.4.4).¹³⁵ Legal instruments such as the 2004 EU Environmental Liability Directive and its national implementation by the 27 EU Member States will help to spread the concept of environmental damage beyond the loss of life, personal injuries as well as damage and loss of property (traditional tort damage); the 2010 Nagoya-Kuala Lumpur Supplementary Protocol would achieve the same on the universal level, especially if a significant number of the 173 parties to the Cartagena Protocol on Biosafety ratify the instrument (as of September 2020, 51 ratifications).

In contrast to the 2004 EU Environmental Liability Directive and the Nagoya-Kuala Lumpur Supplementary Protocol, both of which pursue an administrative approach to liability, international civil liability conventions do not provide for a clear concept of what ‘environmental damage’ and ‘impairment to the environment’ are.¹³⁶ The reason for the reluctance of civil liability regimes to address damage to the environment per se is the imperative of quantifiable economic loss, which is a typical requirement in tort law. The quantifiability is achieved through ‘measures of reinstatement’ without pursuing a clear concept of what constitutes an ‘environment’ needing to be reinstated. All of the civil liability instruments under consideration here show the emerging conviction of States that environmental damage should be addressed indirectly through the concept of reasonable reinstatement measures that fall under the category of consequential economic losses. The ICJ decision in the Wetland Compensation case was guided by these considerations, even though the Court drew criticism for its decision of what constituted a “reasonable valuation” (Chap. 3 ¶ 66 (Sect. 3.4.4)). The next step in legal development in this area is a scientifically-established-baseline approach with regard to the valuation of environmental damage as envisaged in the Nagoya-Kuala Lumpur Supplementary Protocol (Chap. 14) and the UNEP Liability Guidelines 2010 (¶ 37 et seq).

5.8.2 Relevant Activities

International civil conventions cannot be invoked to specify the scope of environmentally relevant activities to which liability must be linked as they are primarily sector-specific (e.g. oil transportation, operation of nuclear facilities etc.). However, the overall picture is that hazardous activities with an inherently high risk of significant environmental damage fall within the focus of civil liability conventions and their administrative counterparts, related soft law instruments and ILC Draft Principles.

5.8.3 Causation

The analysis of all of the material above illustrates that international law has not yet developed its own concept of causality in the area of liability for environmental damage. Rather, the international instruments considered refer to national law and the particularities of national legal systems.

5.8.4 Standard of Liability

The purpose of all civil liability conventions, soft law instruments and the ILC Draft Principles in the allocation of loss is to internationalise the strict liability standard for environmentally ultra-hazardous activities. Strict liability is generally considered to be the best method to implement the polluter-pays principle because it “guarantees that the cost of damage caused by economic activities are born by the operator”.¹³⁷ A 2001 comparative law study on OECD countries’ civil law principles found that most States impose a mix of strict and fault-based civil liability for traditional tort claims with a tendency to impose strict liability when remedying environmental damage and damage linked to specific dangerous activities.¹³⁸ At least for industrialised States, this study identified a notable trend towards the use of strict liability.¹³⁹ A 2012 OECD study on environmental liability in States located in Eastern Europe, the Caucasus and Central Asia found that in their legal systems, environmental liability is predominantly fault-based.¹⁴⁰

Chief Oule Shadrack VII Bareki & Others v Cencor Ltd & Others¹⁴¹

The High Court of South Africa delivered a judgment in October 2005 which concerned the interpretation of Section 28 of the South Africa National Environmental Management Act of 1998 (NEMA). The plaintiffs in the proceedings alleged that between 1976 and 1981 two mining companies, Gencor and Gefco, caused significant pollution by generating asbestos fibres that were dispersed by the wind, thereby contaminating not only the mining site but also its surrounding area. The plaintiffs claimed that Gencor, Gefco and the Government (as the owner of the land) were responsible for rectifying the pollution and degradation. The plaintiffs estimated the cost of rehabilitation to be R64 million, whereas Gefco, Gencor and the Government estimated the costs to be in the region of R18 –24 million (approx. US$ 2.7–3.6 million).

In its judgment, the High Court noted that the duty created by Section 28(1) NEMA, which the judge framed as a “duty to take reasonable corrective measures”, stems exclusively from causing significant pollution or degradation of the environment; i.e. the duty arises irrespective of fault. Based on this, the High Court agreed with the defendants that Sections 28(1) and (2) NEMA created strict liability. In finding that Sections 28(1) and (2) NEMA excluded fault, the Court held that Section 49(b) NEMA, which provides that a person is only liable for damages for failure to perform a duty under NEMA where there has been wrongfulness or negligence, was irrelevant to the proceedings because the plaintiffs were not asking the court to award damages but to order reasonable corrective measures (at 440B–D).

Based on civil law conventions, soft law instruments and resolutions it is safe to say that strict liability is generally considered the standard most appropriate for environmentally ultra-hazardous activities. However, international practice remains elusive and not fully developed in this regard, as can be illustrated using Principle 13 of the Rio Declaration. In the light of very different domestic approaches to civil liability (absolute, strict or fault-based) Principle 13 does not require strict liability even though this is widely held to be the most effective regime to provide prompt and adequate compensation for victims of pollution and other environmental damage. The administrative approach to liability pursued by the Nagoya-Kuala Lumpur Supplementary Protocol is a version of strict operator liability but leaves States and their authorities some discretion to relieve the concerns of diligent operators. Most importantly, the Protocol’s provision on civil liability (Article 12) does not introduce the strict liability standard for transboundary LMO damage but leaves the decision on the application of fault-based tort law to individual States. International law is thus locked in a stalemate: because the majority of civil liability conventions are not in force, there is a lack of harmonised national civil liability laws, which in turn impedes the development of strict liability standards under customary international law that cover cases of environmentally hazardous activities. Thus, no legal manifestations can yet be identified based on which traditional fault-based liability can be rejected as a proper means of implementing the polluter-pays principle.

With this in mind, it is a logical follow-up question to ask whether a certain duty-of-care standard is required for fault-based liability regimes (negligence) to comply with international manifestations of the polluter-pays-principle. However, this question cannot be answered based on the materials examined here as those are dedicated to strict liability regimes. It is conceivable that, in the light of the generally agreed objective of civil liability regimes (Principle 13: compensation for victims of environmental damage), international law pursues a stringent understanding of the ‘duty of care’—i.e. the duty to prevent environmental damage—that places strict standards and requirements on operators engaged in activities involving significant environmental risks.¹⁴²

5.8.5 Claimant (Access to Justice)

Generally speaking, access to justice is the right to obtain remedies before judicial bodies or other authorities.¹⁴³ Principle 10 of the Rio Declaration, the Aarhus Convention¹⁴⁴ and the civil liability conventions discussed above are all international manifestations of this right in the area of environmental law. This cannot be said of administrative liability regimes.

Access to justice is not a free-standing right but is linked to enforceable rights specified by the law, the violation of which is claimed by the aggrieved person.¹⁴⁵ Under no circumstances can customary international law be interpreted as imposing an obligation to extend access to justice to actors who have no direct legal interest and thus cannot be regarded as injured parties (actio popularis).

At least in the context of general tort actions for damages, access to national courts does not, at first glance, pose a major problem. Broadly speaking, polluters can be sued in the place where the polluting activities occurred or the effects of the damage became manifest (Chapter 6 Sect. 6.2). Nevertheless, access to justice is especially problematic in cases of transboundary harm as States may de jure or de facto deny justice to victims of transboundary environmental damage. In Adam v Czech Republic, the Human Rights Committee (HRComm) established that any legislation regulating restitution or compensation should not discriminate against victims based on citizenship without reasonable grounds.¹⁴⁶ Due to the interdependency between human rights and environmental law, national civil liability regimes must be construed in a fashion that allows victims of transboundary environmental harm to have standing in the State whose territory is the source of the pollution in question. This State should provide access to its justice system based on non-discrimination,¹⁴⁷ a rule is reflected in some civil liability conventions (¶ 22 et seq) and the ILC Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities (¶ 62 et seq).

5.8.6 Respondent

All instruments under consideration channel compensation claims via a civil liability regime or response measures via an administrative liability regime to operators. Even though the term operator can cover a wide range of legal and factual positions in relation to an environmentally hazardous activity or substance, it always denominates the entity that, at a given point in time, has a position of control. This position justifiably carries the onus of being held accountable as the polluter when an incident occurs. Even if national legislators have room for discretion as to who they consider to be an appropriate operator and under which conditions they make an operator liable, laws that fully and indiscriminatorily relieve operators from liability and redress (government-pay approach) do not meet international legal requirements.

5.8.7 Compensation

Civil liability conventions are often not ratified by States because they disagree with the liability ceiling, which is either considered too low or otherwise insufficient. Irrespective of this, liability ceilings deviate from the general principle of full compensation¹⁴⁸ and thus require an explicit legal provision in either international agreements or domestic (tort) laws.

Few of the international instruments under consideration here explicitly address the duty of the State to ensure prompt and adequate compensation, which is a well-known international standard of compensation in cases of lawful expropriation of foreign property.¹⁴⁹ Whereas civil liability conventions safeguard the standard through insurance schemes, other instruments are underwhelming in terms of detail. A notable exception is the ILC Draft Principle on the Allocation of Loss which explicitly point out the substantive and procedural duties of States in connection with compensation in cases of transboundary environmental damage (¶ 71). As Boyles observes, these standards are not new and simply build on existing customary international law,¹⁵⁰ which considerably enhances the chances of their international acceptance for environmental damage. In this regard, it is worth noting that the ICJ emphasised in the Wetland Compensation case that compensation for environmental damage has to be an “adequate” reflection of the value of the environment (Chap. 3 ¶ 64 et seq (Sect. 3.4.4)).¹⁵¹ While this case relates to State responsibility, it is nevertheless an authoritative manifestation of the relevant environmental standard of compensation.

The standard of prompt and adequate compensation is closely linked to the civil liability regime being used and its mandatory insurance schemas, which is only one legislative option to address transboundary environmental damage. As pointed out in Sect. 5.3 and Chap. 14, the administrative approach to liability does not establish a compensation scheme for injured parties but a remediation and cost recovery scheme. In contrast, albeit arguably, the administrative liability regime of the Nagoya-Kuala Lumpur Supplementary Protocol imposes on the parties the duty to ensure prompt, adequate and effective response measures.¹⁵² This understanding of the Protocol’s Article 5 is not reflected in its wording but can be deduced because is the very object and purpose of the Protocol. Whether or not parties align themselves with this interpretation is one of the litmus tests of the Nagoya-Kuala Lumpur Protocol.

5.9 Conclusion

With regard to the identification of a rule of customary law that would oblige States to have civil liability rules in place that cover environmentally ultra-hazardous activities, it does not bode well that only four of the 13 existent civil liability conventions have entered into force. Naturally, States may have very specific reasons for not ratifying these conventions without necessarily calling into question the basic concept of imposing civil liability for transboundary environmental harm on operators. Nevertheless, the lack of ratification makes most of the existing civil liability conventions so-called ‘failed treaties’, which casts serious doubts on the existence of customary civil liability rule irrespective of any specifics such a rule may take on.

Chapter 3 (see also Chap. 2 ¶ 43 (Sect. 2.3.3)) argues that the combined environmental principles of both polluter-pays and prevention have the potential to bring about a new rule according to which States must ensure a polluter’s ultimate environmental liability by not invariably, indiscriminately and arbitrarily excluding his/her responsibility and liability. This Chapter follows up on this by identifying generally recognised, international legal manifestations of central environmental liability elements, namely that significant damage to the environment, caused by operators engaging in high-risk activities, should be redressed via a compensation mechanism that provides ‘reasonable reinstatement measures’. What this translates to in short is that operator-liability regimes using either a civil or administrative approach to liability can employ either a traditional fault-based liability or be stricter, however, current international legal manifestations in this area point towards States favouring strict liability.

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Vorheriges Kapitel Liability of Private Actors in International Law

Nächstes Kapitel National Civil Liability and Transboundary Environmental Damage

Faure and Wang (2008), p. 593.

Brunnée (2004), p. 357.

Sachs (2008), p. 837.

In literature, the recognized number of civil liability conventions varies considerably. The decisive criterion for the selection of the 13 conventions examined here is that they all represent a full-fletched civil liability regime in their respective scopes of application. This excludes conventions with a primarily administrative approach (e.g. the 2010 Nagoya-Kuala Lumpur Protocol) and conventions which mainly refer to other liability conventions (e.g. the 2007 Nairobi International Convention on the Removal of Wrecks). Moreover, amending protocols were only taken into account in the present analysis if they made significant additions to the substantive liability provisions, which led to the exclusion of, for example, protocols on liability limitations and international funds as well as conventions that exclusively seek to solve conflicts of application between other liability conventions.

In force for the States parties are the 1960 Paris Convention, the 1963 Vienna Convention, the 1969 CLC Convention and the 2001 Bunker Oil Convention.

2003 Kiev Protocol https://treaties.un.org/doc/source/docs/ECE_MP.WAT_11-ECE_CP.TEIA_9-E.pdf, last accessed 25 April 2022.

The Protocol is attached to two conventions, the Convention on the transboundary Effects of Industrial Accidents of 1992 (41 parties; 2105 UNTS 457) and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes of 1992 (43 parties; 1936 UNTS 269).

Harper (2005), p. 226; see also the official announcement available under https://reliefweb.int/report/hungary/hungary-summary-environment-catastrophe-caused-cyanide-pollution-river-tisza, last accessed 25 April 2022.

Springer (2016), pp. 96–109.

Sachs (2008), p. 839.

Karavias (2013), pp. 14–15; Bothe (2005), p. 437; see also Boyle (1991), p. 368.

See e.g. Jägers (2002), p. 32; Nollkaemper (2006), p. 189.

See e.g. Article 8 of the 2003 Kiev Protocol.

E.g. the 1993 Lugano Convention; see also Peters (2014), p. 143.

US District Court for the Northern District of Illinois, Eastern Division Oil Spill by Amoco Cadiz (1984), para. 2077; see for an analysis Rosenthal and Raper (1985), p. 263.

See also US Court of Appeal for the 7th Circuit Matter of Oil Spill by the Amoco Cadiz (1992) 954F.2d1279, para. 1310; France decided to distain their remedies under the Civil Liability Convention in favour of the US lawsuit under Article 1382 of the French Civil Code.

Judgment of the Court of Cassation, Chambre criminelle (2012) ECLI:FR:CCASS:2012:CR03439 is available at https://www.courdecassation.fr/decision/61400e5defd934822802c162, last accessed 25 April 2022.

Paris Court of Appeals Clemente et al v General Council of la Vendée et al (2010) 08/02278.

Adshead (2018), p. 440.

Court of Cassation, Chambre civile 3 Commune de Mesquer v Total France Sa and Total International Ltd (2008) 04-12.315.

ECJ Commune de Mesquer C-188/07 [2008] ECLI:EU:C:2008:359, para. 82.

Peters even considers civil liability conventions to impose a prior primary obligation to refrain from environmental damage, see Peters (2016), p. 154.

When negotiation the 2001 Stockholm Convention on Persistent Organic Pollutants (POP), the States adopted the resolution on liability and redress concerning the use of and intentional introduction into the environment of POPs. The relevant resolution (Resolution 4) was adopted as a part of a package consisting of seven resolutions attached to the Final Act of the Conference (UNEP/CONF/4). Currently, no amendments or protocols on liability have been adopted.

Shibata (2016), p. 247.

See e.g. ILC Draft Principles on the allocation of loss in the case of transboundary harm arising out of hazardous activities, Principle 4(3) (“where appropriate”) and (4) (“in appropriate cases”).

Faure and Grimeaud (2000).

For a detailed analysis see De La Fayette (2002).

Article 1(6)(a) CLC; Article 1 (10) (c) CRTD.

Article 10(c), (d) 1989 CRTD; Article 2(7)(c), (d) 1993 Lugano Convention; Article 1(6)(c) and (d) 2010 HNS Convention; Article 2(2)(c)(iii), (iv), (v) 1999 Basel Protocol; Article 1 para. 6 1992 CLC (“reasonable measures of reinstatement actually undertaken or to be undertaken”). In contrast, the 1960 Paris Convention in the original form and the 1962 Brussels Convention simply do not have provisions requiring actors to cover the costs of reinstating an environment they have damaged. The 2004 Protocol to Amend the Paris Convention, which entered into force on 1 January 2022, covers certain types of economic loss, the cost of measures of reinstatement, loss of income and the cost of preventive measures.

See also the 1988 Wellington Convention and the 2005 Environmental Protection Protocol Annex VI: “damage to the Antarctic environment”.

Article IV Nuclear Ships, Article IV Vienna Convention, Article 1(6) HNS Convention.

Article 5 of the 1999 Basel Protocol; see also Article 5 of the 2003 Kiev Protocol.

Article 3 of the 1977 London Convention; Article VIII 1962 Brussels Convention.

Article 3(3)(c) Bunker, Article 7(2)(c) HNS Convention.

Article 19(1) of the 1989 CRTD; Article 19 of the 1993 Lugano Convention; Article 17 1999 Basel Protocol; Article 13 of the 2003 Kiev Protocol.

Article 5 of the 1989 CRDT.

Article 1 and 3 of the 1992 CLC; Article 7 of the 1996 HNS Convention; Article 3 in conjunction with Article 1 of the 2001 Bunker Oil Convention.

Stoiber et al. (2003), p. 112.

See e.g. Article 25(1) Lugano Convention: “Nothing in this Convention shall be construed as limiting or derogating from any of the rights of the persons who have suffered the damage or as limiting the provisions concerning the protection or reinstatement of the environment which may be provided under the laws of any Party or under any other treaty to which it is a Party.”.

Reprinted in ILM 50 (2011) 109.

Nijar (2013), p. 276.

42 U.S.C. §9601 et seq (1980).

Directive 2004/35/EC of the European Parliament and the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, OJ 2004 No L 143/56.

Telesetsky (2011).

Article 2(2)(b) of the Nagoya – Kuala Lumpur Supplementary Protocol.

The baseline approach should take into account any other human induced variation and natural variation of the affected environment Article 2(2)(b) of the Nagoya – Kuala Lumpur Supplementary Protocol.

Shibata (2016), p. 36.

Lefeber (2016), p. 87.

See e.g. OECD (2012); even though not primarily concerned with liability, the United Nations Economic Commission for Europe (UNECE) adopted a code of conduct on accidental pollution of transboundary inland waters in 1990 that addresses access to justice in cases of accidents, Code of Conduct on Accidental Pollution of Transboundary Inland Waters, 1990, Doc E/ECE/1225, available at: http://extwprlegs1.fao.org/docs/pdf/eur16417.pdf, last accessed 25 April 2022.

Adopted on 18 January 2008 on the 15th ordinary meeting of the Contracting Parties to the Convention for the Protection. of the Marine Environment and the Coastal region of the Mediterranean (Barcelona Convention: 1102 UNTS 44), Doc UNEP(DEPI)/MED.IG.17/10; for detail see Scovazzi (2009), pp. 183 et seq.

Adopted by the United Nations Economic Commission for Europe by Decision C(45), 1990, Doc E/ECE/1225.

OJ 2004 No L 143, 56 (consolidated version).

Para. 14 Mediterranean-Sea Guidelines 2008; see also Guideline 3 (2) UNEP Liability Guidelines 2010 (under headline ‘damage’).

Para. 9 Mediterranean-Sea Guidelines 2008; Guideline 3(3) UNEP Liability Guidelines 2010.

Guideline 3(2)(a) UNEP Liability Guidelines 2010.

Para. I(b) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990.

Annex H (d) and (e) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990.

Guideline 3(1) and 4(1) UNEP Liability Guidelines 2010; see also Para. I(g) 1990 UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters: “hazardous activity means any activity which by its nature involves a significant risk of accidental pollution”.

Para. I(b) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990.

Paras 15 and 19 Mediterranean-Sea Guidelines 2008; Guideline 1 UNEP Liability Guidelines 2010.

Para. 21 Mediterranean-Sea Guidelines 2008.

Para. 19 Mediterranean-Sea Guidelines 2008; Guideline 5 UNEP Liability Guidelines 2010; Para. XV(5) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990; see also OECD (2012), p. 32 recommending the imposition of strict liability.

Para. 20 Mediterranean-Sea Guidelines 2008.

Guideline 5(2) UNEP Liability Guidelines 2010.

Para. 13 Mediterranean-Sea Guidelines 2008; Guideline 6 UNEP Liability Guidelines 2010.

Para. 32 Mediterranean-Sea Guidelines 2008.

Scovazzi (2009), p. 207.

Para. VII(3) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990.

Guideline 8 UNEP Liability Guidelines 2010.

Para. 2 Mediterranean-Sea Guidelines 2008; Guideline 1 UNEP Liability Guidelines 2010B; Para. II(3) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990: “Riparian countries should implement, within the framework of their national legislation, the basic principle that responsibility for pollution lies with the polluter”; see also the Brundtland Report, at 220.

Paras. 17 and 18 Mediterranean-Sea Guidelines 2008: “any natural or juridical person, whether private or public, who exercises the de jure or de facto control over an activity”; Guideline 3(4) UNEP Liability Guidelines 2010: “any person or persons, entity or entities in command or control of the activity, or any part thereof at the time of the incident”.

Para. XV(1) UNECE, Code of Conduct on Accidental Pollution of Transboundary Inland Waters 1990.

Institut de Droit International, Responsibility and Liability under International Law for Environmental Damage, 4. September 1997, ILM 37 (1998) at 1474, available at https://www.idi-iil.org/app/uploads/2017/06/1997_str_03_en.pdf, last accessed 25 April 2022.

International Law Association: Transnational Enforcement of Environmental Law, Conference Report Toronto 2006, available at: https://www.ila-hq.org/index.php/committees, last accessed 25 April 2022.

Rule 1 ILA resolution.

Article 23 IDI resolution.

Article 17 IDI resolution.

Rule 6 (a) ILA resolution.

Article 7 IDI resolution.

Rule 6 (b): “the grounds for exemption from liability, any limitation of liability and any division of liability”, ILA resolution.

Article 5 IDI resolution.

Article 22 IDI resolution.

Article 27 IDI resolution.

Rule 6 (a) ILA resolution.

Article 6(1) IDI resolution.

Article 10 IDI resolution.

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 59 para. 5.

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 61 para. 13.

SR Sreenivasa Rao (ILC), Second Report on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities, UN Doc A/CN.4/540, 66 para. 4; 67 para. 10.

See e.g. the statement of the US government UN Doc A/C.6/58/SR.16, para. 12–13.

Statement of the UK government, see ILC SR Sreenivasa Rao, Second Report on the legal regime for the allocation of loss in case of transboundary harm arising out of hazardous activities, UN Doc A/CN.4/540, 67 para. 8.

Report of the Secretary General, 29 July 2010, UN Doc A/65/184, para. 11.

Report of the Secretary General, 29 July 2010, UN Doc A/65/184, para. 21.

Report of the Secretary General, 22 July 2013, UN Doc A/68/170, para. 31.

Report of the Secretary General, 12 July 2016, UN Doc A/71/136, para. 4 and para. 8.

IACtHR The environment and human rights (Advisory Opinion) OC-23/17 (2017).

IACtHR The environment and human rights (Advisory Opinion) OC-23/17 (2017), para. 233–240.

100

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 63 para. 10.

101

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 64 para. 12.

102

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 66 para. 11.

103

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 62 para. 2.

104

By noting that for the purpose of the present draft principles, it is assumed that duties of due diligence under the obligations of prevention have been fulfilled (Draft Principles with Commentary, at 63 para. 8), the ILC unnecessarily links the lawful activities that cause harm and the breached duty of the state to prevent these harmful activities, even though the activity does not become unlawful only because the state is internationally responsible for violating the duty to prevent.

105

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 79 para. 16.

106

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 81 para. 29.

107

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 81 para. 27.

108

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 11 para. 30.

109

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 78 para. 11.

110

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 76–77 para. 1.

111

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 77 para. 7.

112

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 77 para. 6.

113

PCA Trail Smelter Case (United States v Canada) (1941) 3 RIAA 1905, at 1961.

114

ILC Draft Principles on the Allocation of Loss in the case of Transboundary Harm Arising out of Hazardous Activities, with Commentary, YBILC 2006 Vol II part 2, UN Doc A/61/10, at 87 para. 10.

115

European Commission, Remedying Environmental Damage (Green Pater) COM(1993) 47 final, at 4: “Civil liability is a legal and financial tool used to make those responsible for causing damage pay compensation for the costs of remedying that damage”; see also Schwartz (2010), p. 251.

116

See also the reference of the Hungarian government in the 2000 Baia Mare Cyanide Spill case available at https://reliefweb.int/report/hungary/hungary-summary-environment-catastrophe-caused-cyanide-pollution-river-tisza, last accessed 25 April 2022.

117

Wills (2013), p. 141.

118

US Department of the Interior, Bureau of Ocean Energy Management, Consumer Price Index Adjustments of the Oil Pollution Act of 1990 Limit of Liability for Offshore Facilities, Proposed Rule, 79 Federal Register 10,056 (24 February 2014); available at http://www.gpo.gov/fdsys/pkg/FR-2014-03-19/html/2014-06047.htm, last accessed 25 April 2022.

119

Three main bodies of law in the United States establish liability for civil damages from offshore oil and gas accidents: state common law; state oil pollution legislation; and—more importantly—the federal Oil Pollution Act of 1990 (OPA) and the Clean Water Act (1972); claims under one body of applicable law may not bar persons bringing claims under another.

120

See the informative even though dated study on domestic civil liability systems authored by McKenna (1995), further studies Lammers (1984), pp. 644–659; Munro and Lammers (1986), pp. 83–84; Horbach (1996), pp. 109–224; Clarke (2001); UNEP (2003); ILC, Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities), prepared by the Secretariat, UN Doc. A/CN.4/543, 24 June 2004, paras. 69–112.

121

E.g. Denmark, Iceland, Norway and certain claims in Germany fall under purpose-built legislation in which liability is strict; in environmental liability legislation in Bulgaria and Lithuania, liability is fault-based.

122

Commission Staff Working Document, Liability, Compensation and Financial Security for Offshore Accidents in the European Economic Area, COM(2015) 422 final, at 22.

123

This is the main reason for the US for non-ratification, Ronen Perry (2011), p. 7.

124

ILC, Survey of liability regimes relevant to the topic of international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities), prepared by the Secretariat, UN Doc A/CN.4/543, para. 195 et seq.

125

UNEP Guidelines for the development of domestic legislation on liability, response action and compensation for damage caused by activities dangerous to the environment, both adopted by the Governing Council in Decision SS.XI/5, part B.

126

Para. 1: “Each State should take all necessary means to ensure that prompt and adequate compensation is available for victims of transboundary damage caused by activities located within its territory or otherwise under its jurisdiction or control”. Para. 2: These measures should include the imposition of liability on the operator…”.

127

See the 9th recital of the Draft Principles: “Desiring to contribute to the development of international law in this field”.

128

EU Environmental Liability Directive of 21 April 2004, OJ 2004 No L 143, 56.

129

Article 12 EU Environmental Liability Directive of 21 April 2004, OJ 2004 No L 143, 56.

130

European Commission, White Paper on Environmental Liability, 9 February 2000, COM(2000) 66 final, at pp. 25–26.

131

Luppi et al. (2012), p. 136.

132

See Fitzmaurice (2015), p. 376; for a comparison of European and US tort laws see Larsson (1999), pp. 145–396.

133

Botta and Yamasaki (2020).

134

Ibid.

135

ICJ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) [2018] ICJ Rep 15, 23.

136

De La Fayette (2002), p. 150.

137

Communication from the Commission to the Council, European Parliament and the Economic and Social Committee: Green Paper on Remedying Environmental Damage. COM(93) 47 final, section 4.1.2.

138

Clarke (2001), pp. iv–v; see also de Sadeeler (2002), pp. 49–52.

139

Clarke (2001), p. iv.

140

OECD (2012), p. 15, available at Clarke (2001), pp. iv–v.

141

High Court of South Africa Transvaal Provincial Division (2005) 1895/2003, reprinted in Journal of Environmental Law 18 (2006) 479.

142

Bergkamp (2001), p. 264.

143

Francioni (2007), p. 1.

144

Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), 25 June 1998, 2161 UNTS 447.

145

Francioni (2007), p. 30.

146

HRComm Adam v Czech Republic Communication No. 586/1994 [1996] U.N. Doc. CCPR/C/57/D/586/1994, paras. 12.6, 13.1.

147

Generally: UNHRComm, General Comment No. 18: Non-discrimination (10 Nov. 1989), available at http://www.refworld.org/docid/453883fa8.html, last accessed 25 April 2022.

148

See also ICJ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) [2018] ICJ Rep 15, para. 41; see also from a tort law perspective see Koziol (2015), pp. 823 et seq.

149

So called Hull formular, see Dawson and Weston (1962), pp. 740–741.

150

Boyle (2005), p. 18.

151

ICJ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) [2018] ICJ Rep 15, 77.

152

Lefeber (2016), pp. 84–87.

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Titel: International Standards for National Environmental Liability Regimes
verfasst von: Kirsten Schmalenbach
Verlag: Springer International Publishing
Buch: Corporate Liability for Transboundary Environmental Harm
Print ISBN: 978-3-031-13263-6

Electronic ISBN: 978-3-031-13264-3

Copyright-Jahr: 2023
DOI: https://doi.org/10.1007/978-3-031-13264-3_5