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International environmental law.

Module B: General aspects of international environmental law II.

Chapter 3: Civil liability regimes.

Nature of civil liability regimes
States parties of these conventions undertake to establish regimes in national laws to impose liability on civil parties responsible for causing damage (primarily from ultrahazardous activities). The conventions:
 * define the nature of damage and liability for it (incl. maximum, minimum) – absolute, strict, fault; joint, several; exemptions – channelling: who is/are liable (shipowner, nuclear operator)
 * provide for access to judicial process to enforce liability and obtain compensation (also for non-nationals – nondiscrimination): choice of forum, recognition of judgment
 * provide financial mechanisms (funds, insurance) to ensure that liable civil parties are able to meet their liabilities; or even residual state liability and supplementary compensation from public funds (tiered system).

Polluter pays?

Nuclear installations
Near-absolute liability on the operator (whether state or private party), with few exceptions. Compulsory insurance or security. Ratification coverage of nuclear states is poor (USA, Canada, Japan not party to any) and no claims under the international regimes so far.

OECD Nuclear Energy Agency 1960 Paris Convention (amended 1964, 1982; max. 15 MSDR, env. damage not covered)
 * &rarr; 2004 Protocol (not in force; no limit for operator liability; env. covered for economic loss, reinstatement, preventive measures; max. .7+.5+.3=1.5 GSDR)
 * – 1963 Brussels Convention (supplementary compensation from public funds; so max. 15+160+125=300 MSDR).

IAEA 1963 Vienna Convention (max. 300 MSDR)
 * &rarr; 1997 Protocol to amend (in force since 4 October 2003)
 * – 1997 Convention on Supplementary Compensation for Nuclear Damage standalone but related to the Vienna and Paris regimes (in force since 15 April 2015; max. +≈ 300 MSDR).

These two regimes were combined by 1988 Joint Protocol with a choice-of-law rule.

The operator liability is in the low millions, the compensation from funds in the mid to high millions, but actual cost so far has been in the low billions for each incident, and actual damage estimated to be in the high billions (ultimately a political decision). Enough? Polluter pays? Patchwork anyway.

Oil pollution and wrecks
IMO two-tier regime: These are widely used for claims, total ceiling ≈ 1.16 GUSD. Only actual env. restoration and damage prevention costs are compensated, but see Italian courts in Patmos, Haven and French courts in Erica. There are also private compensation schemes.
 * 1992 [1969] Civil Liability Convention (last amended 2000; max. ≈ 360 MSDR) provides for shipowner's strict liability for pollution damage, compulsory insurance, limit 14 MSDR.
 * 1992 [1971] Fund Convention (with optional third-tier Supplementary Fund Protocol, in force 2005; max. 750 MSDR) established the International Oil Pollution Compensation Fund (last amended 2000, max. 203 MSDR).

IMO 2001 Bunker Oil Pollution Convention has been in force since 2008.

IMO 2007 Nairobi International Convention on the Removal of Wrecks entered into force on 14 April 2015. There are a couple more liability conventions (e.g. Black Sea) on marine pollution, not in force.

Waste
1999 Protocol on Liability and Compensation for Damage Resulting from Transboundary Movement of Hazardous Wastes and Their Disposal to the 1989 Basel Convention (not yet in force) provides for strict liability on the part of the exporter or the disposer (Article 4); and fault liability in case of failure to comply with the convention or damage occurs because of intentional, reckless or negligent acts or omissions (Article 5). (Basel ban amendment of hazard waste transfer between developed and developing states has not come into force.)

Transport

 * UNECE 1989 Geneva Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Road, Rail and Inland Navigation Vessels (1989 CRTD, not yet in force)
 * IMO 1996 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (1966 HNS Convention, not yet in force), based on the 1992 CLC and the 1992 Fund Convention.

Attempts at general regimes
Cf. ILC principles on loss allocation etc. See Annex VI Antarctic Env. Protocol (not in force), 2010 Nagoya–KL Liability Protocol to Biosafety Protocol (biodiversity, in force since 2018).


 * 1993 Council of Europe Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano Convention; not yet in force)
 * 2003 UNECE Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters (Transboundary Damage Protocol; not yet in force) &larr; 1992 UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1992 Convention on the Transboundary Effects of Industrial Accidents
 * EU Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.