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Of Sense And Sensibility: Reflections On International Liability Regimes As Tools For Environmental Protection

Published online by Cambridge University Press:  17 January 2008

Jutta BrunnÉee
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Abstract

There are several reasons, pertaining to both the development of a generallyapplicable framework and the elaboration of issue-specific approaches, why it is timely to reflect on whether liability regimes are an appropriate tool for international environmental protection. At the level of general norms, the International Law Commission (ILC) appears to have arrived at a crossroads, as it must decide whether and how to approach further work on liability for transboundary environmental harm. At the same time, discussions about issuespecific liability regimes have proliferated. Indeed, it seems that few multilateral environmental agreements (MEAs) can be negotiated today without running across the liability issue in one way or another. The issue often divides Southern delegations, which tend to push for the inclusion of liability regimes, and Northerndelegations, which tend to resist. But the disagreement is not just a matter of policy and politics. There is also a lively debate in the literature about the pros and cons of international liability regimes. All the more reason, therefore, to assess whether engaging in the laborious task of developing a liability regime is a good investment of scarce negotiating resources. The goals that animate the quest for environmental liability are important ones: to make polluters pay for the environmental costs of their activities, to compensate innocent victims, to protect the environment, and, in certain contexts, to protect developing countries against environmental risks. The key question is whether, given these sensibilities, the approach makes sense.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 2 , April 2004 , pp. 351 - 368
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 With respect to terminology, in comparison to State responsibility, ‘international liability refers more generally to mechanisms for compensating and otherwise remedying harm caused by states or other actors, whether or not the harm resulted from the breach of an international obligation’. See Berwick, TA ‘Responsibility and Liability for Environmental Damage: A Roadmap for International Environmental Regimes’ (1998) 10 Georgetown Int'l Envtl L Rev 257, at 259.Google Scholar

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22 Ibid, at 109–12.

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25 The UN General Assembly took note of the Articles, and asked the ILC to proceed with its work on liability. See ibid, para 36.

26 See ibid, para 24 (‘the trend of requiring compensation is pragmatic rather than grounded in a consistent concept of liability’), and para 37 (concluding that the Commission would ‘better deal with the allocation of loss among different actors involved’).

27 Ibid, para 16.

28 Ibid, para 3.

29 Ibid, para 114.

30 Ibid, para 152.

31 See Liability and Compensation Regimes Related to Environmental Damage: Review by UNEP Secretariat (2002), at 15; available at <http://www.unep.org/DEPI/LiabilityandCommpensation.asp> (last visited 7 Oct 2003).+(last+visited+7+Oct+2003).>Google Scholar

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34 Ibid, Art 12.

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40 Civil Liability Convention, 973 UNTS 3.Google Scholar

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58 Ibid, Art 13.

59 Basel Liability Protocol, ibid, Art 14.

60 Ibid, Art 15.1. Developed countries, including Australia, Canada, and Germany, had rejected calls for the creation of a compensation fund. See Long, above n 55, at n 15.

61 See Soares, and Vargas, , above n 51, at 101. In particular, African countries expressed their disappointment with this outcome.Google Scholar See ibid, at 103.

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64 Information available at <http://www.basel.int/ratif/ratif.html#protocol> (last visited 25 Nov 2003). For a review of potential impediments to entry into force, see Daniel, , above n 35, at 230–1.+(last+visited+25+Nov+2003).+For+a+review+of+potential+impediments+to+entry+into+force,+see+Daniel,+,+above+n+35,+at+230–1.>Google Scholar

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81 The eighth offering built on the basic models of existing nuclear and oil pollution liability regimes, but also pushed beyond these precedents. It would have provided for strict, unlimited, operator liability; defined damage as any harmful effect above the de minimis range; required operators to take precautionary and response measures; required operators to contribute to a compensation fund where damage is irreparable; required non-state operators to carry insurance; provided for residual state liability in cases where States fail to meet their commitments under the protocol; created a dispute settlement regime. See Wolfram, R ‘Environmental Protection of Icecovered Regions’, in Morrison, FL and Wolfram, R (eds) International, Regional and National Environmental Law (The HagueKluwer Law International 2000) 329, at 336–7.Google Scholar

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87 Ibid.

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99 Brunnée, , above n 4.Google Scholar