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International environmental law.

Module B: General aspects of international environmental law II.

Chapter 2: State responsibility for environmental damage.

Conceptual framework
State responsibility &larr; (breach of peremptory norm > internationally wrongful act) > harm from non-prohibited acts &rarr; liability (cf. due diligence). How does this general intl law paradigm (based mostly on bilateral right–duty–injury) apply to the environment?

The focus has shifted from state responsibility at international law (Stockholm 22) to civil liability through domestic law (Rio 13).

Environmental damage
≈ “adverse effects”? No universal definition. 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA; not in force) defines for Antarctic environment at Art. 1(15) – Antarctic Environment Protocol protects on an ecosystem basis.

≠ “pollution”, a narrower concept not covering e.g. resource overuse: Article 1(a) 1979 Convention on Long-range Transboundary Air Pollution (LRTAP Convention); Articles 1(4), 145, 194 of 1982 UNCLOS.

State responsibility
The draft 2001 Articles of the International Law Commission (ILC) on the Responsibility for Wrongful Acts set out the rules on state responsibility (following wrongful acts) – mostly about state’s failure to regulate and control transboundary harm. They are not yet adopted to become legally binding but largely reflect customary law. See particularly Articles 1, 4–11, 12.

In 1995 Request for Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 (New Zealand v France) ICJ (Nuclear Tests case II), New Zealand pleaded unsuccessfully that Stockholm Principle 21 reflected customary international law, Weeramantry J concurred in his dissent.

But ICJ stated in 1996 Legality of the Threat or Use of Nuclear Weapons: ‘The existence of the general obligation of States to ensure that activities within their jurisdiction or control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’ (para 29).

Internationally wrongful act
There is an obligation to make reparations for injury caused by an internationally wrongful act: Permanent Court of International Justice (PCIJ) 1928 Chorzów Factory, confirmed in 1990 Rainbow Warrior arbitration (violation of obligation), 1997 Gabčíkovo–Nagymaros ICJ. See ILC Articles 2, 4–11, 30, 31. The options for reparation: restitution, compensation, satisfaction (ILC Articles 35 to 37). Pulp Mills ICJ: the finding of Uruguay’s breach is itself adequate satisfaction.

Preventive measures such as impact assessment: interim orders in Land Reclamation & MOX ITLOS, Pulp Mills ICJ. But injunction to prohibit not possible: 1974 Nuclear Tests ICJ.

Standing to bring claims, incl. erga omnes: ILC articles 42, 48 (actio popularis, relevant for environment); countermeasures: Art. 49. Earlier ILC draft concept of “intl crimes” not accepted; re actio pop., erga omnes see Gatt Yellow-fin Tuna, WTO Shrimp/Turtle, ICJ Nuclear Tests (Request ... situation) despite Barcelona Traction.

Compensation
Only “financially assessable damage” is compensable: ILC Article 36. Cf. Marshall Islands Nuclear Claims Tribunal.

1991 United Nations Security Council Resolution 687 states that Iraq was ‘liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations’ which occurred as a result of Iraq’s unlawful invasion and occupation of Kuwait (S/RES/687 (1991)), establishing United Nations Compensation Commission, which in turn adopted its Decision 7; see particularly para 35:

"These payments are available with respect to direct environmental damage and the depletion of natural resources as a result of Iraq's unlawful invasion and occupation of Kuwait. This will include losses or expenses resulting from: (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources."

In Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) 2018 compensation judgment, ICJ dismissed both Costa Rica’s “ecosystem services approach” and Nicaragua’s “replacement cost approach” but introduced its own “overall valuation”, taking into account that Nicaragua’s unlawful activities resulted in Costa Rica incurring costs (e.g. repairing damage) and capacity of natural repair, citing equitable considerations, Trail Smelter.

International crimes
Article 19 of 1980 Draft Articles on State Responsibility (environmental damage may amount to an ‘international crime’) was deleted and replaced by 2001 ILC Articles 40 and 41 (‘serious breaches of obligations under peremptory norms of general international law’), making it less relevant for international environmental law.

Sometimes international treaties are enforced through domestic (administrative or criminal) law. E.g. protective principle in the law of the sea extends coastal criminal jurisdiction in EEZ to protect marine environment. Cf. Article 218 UNCLOS.

Widespread environmental damage
ILC 1996 Draft Code of Crimes against the Peace and Security of Mankind identify widespread environmental damage when at war as a crime: art. 20(g) &rarr; 1998 Statute of the International Criminal Court (ICC) defines such in Article 8(2)(b)(iv). See 1998 Council of Europe Convention on the Protection of the Environment through Criminal Law (not in force).

State liability
Liability may follow from harm due to lawful but (ultra-)hazardous acts. Distinguish from civil liability (polluter pays). For state liability, there are 2001 Articles on the Prevention of Transboundary Harm from Hazardous Activities and 2006 Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities.

Threshold at which damage entails liability
Roughly speaking, states must act with due diligence to prevent significant harm: Stockholm 21/Rio 2. No universal standard threshold, but words such as ‘significant’ (ILC draft Allocation of Loss Principles), ‘appreciable’ or ‘substantial’ are often used in conventions; also ‘serious’, ‘above tolerable levels’.

Standard of care
Options for standard of care: due diligence (general rule unless treaty law provides otherwise), fault liability, strict liability (no-fault but defences possible), absolute liability (e.g. nuclear, oil transport by sea). No general need to prove “fault” stricto sensu as the state’s mens rea or malice. See Article II 1972 Convention on International Liability for Damage Caused by Space Objects.

Treaties establishing state liability
Cf. 2010 Nagoya-Kuala Lumpur Supplementary Liability Protocol (biodiversity).

Outer space
The relevant provisions are 1972 Convention on International Liability for Damage Caused by Space Objects (Space Liability Convention) Article I, II, VI, VII. The only claim so far is Kosmos 954 (Canada v USSR), settled by an ex gratia payment from USSR.

Sea ‘Area’
1982 United Nations Convention on the Law of Sea (UNCLOS): State parties and international organisations have the responsibility to ensure that activities in the Area carried out by them, their nationals or by those effectively controlled by them or their nationals, comply with the UNCLOS rules on the Area (seabed and ocean floor and subsoil beyond the limits of national jurisdiction): Article 139; states are themselves ‘responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law’: Article 235(1).

State liability if fail to meet its obligations to secure compliance, but otherwise liability is with the operator; no residual liability for the sponsoring state: ITLOS Advisory Opinion ... in the Area.

Hazardous activities of states
See e.g. Articles 1, 8 of 1988 Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA; not in force) &rarr; Antarctic Environment Protocol art. 7 prohibits mineral resource activities; state liability rules similar to UNCLOS.

1992 Climate Change Convention Article 4(4) requires developed country parties listed in Annex II and the EU to 'assist the developing countries parties that are particularly vulnerable to the adverse effects of climate change in meeting costs of adaptation to those adverse effects', but like the 2015 Paris Agreement, there is no liability.

State obligation to provide funds
In case where a civil party is unable to meet all the costs of environmental damage: 1960 OECD Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention); 1963 OECD Agreement Supplementary to the Paris Convention of 1960 on Third Party Liability in the Field of Nuclear Energy (Vienna Convention); ILC allocation of loss principles. Contrast with UNCLOS, Antarctic env. protocol.