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Index

Published online by Cambridge University Press:  24 August 2023

Neil Craik ,
Tara Davenport  and
Ruth Mackenzie
Neil Craik
Affiliation:
University of Waterloo, Ontario
Tara Davenport
Affiliation:
National University of Singapore
Ruth Mackenzie
Affiliation:
University of Westminster
Type
Chapter
Information
Liability for Environmental Harm to the Global Commons , pp. 277 - 288
Publisher: Cambridge University Press
Print publication year: 2023
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-ND 4.0 https://creativecommons.org/cclicenses/

Index

Aarhus Convention, 45–46
ABNJ. See areas beyond national jurisdiction
absolute liability, 147
adequate and prompt compensation, 31–34, 114, 200, 231, 249, 263. See also prompt and adequate compensation
advisory opinions
for access to remedies, 210–211
Sub-Regional Fisheries Commission Advisory Opinion, 154–155
Antarctic, 6–12. See also Antarctic Liability Annex
access to remedies for environmental harm, 220–223
Antarctic Liability Annex, 221–222
under Antarctic Protocol, 220–222
in domestic forums, 222–223
in international forums, 220–222
activities in, 8–9
under Antarctic Treaty System, 6–7, 9
Antarctic Treaty Area, 10–11, 162–163
Antarctic Treaty Consultive Parties, 7–8, 12, 183, 187–188
institutional arrangements under, 7–8
standing for claims for environmental harm, 183–186
compensable damage in, 76–80
under Convention for the Conservation of Antarctic Seals, 6
under Convention on the Conservation of Antarctic Marine Living Resources, 6, 8–9
under Convention on the Regulation of Antarctic Mineral Resource Activities, 9–11
environmental protections for, 10–12
environmental risks, 8–9
Exclusive Economic Zones and, 7
financial assurances in, 239–242
Antarctic Liability Annex and, 235–236, 238–241, 246
under Antarctic Protocol, 232, 238–239
Antarctic Treaty Consultive Meetings and, 241
legal status as global commons, 6–7
liability allocation for environmental harm in, 119–123
liability framework for, 10–12
liability standards for, 149–150
under Protocol on Environmental Protection to the Antarctic Treaty, 6, 7, 10–11, 12
environmental impact statements, 10–11
sovereignty claims, 6, 7
standing for claims for environmental harm in, 183–188
under Antarctic Liability Annex, 183–186
under Antarctic Treaty, 183–186
by international organizations, 187–188
by non-state actors, 187–188
by state operators, 183–186
under Third Conference on the Law of the Sea, 8–9
under UN Conference on the Law of the Sea, 11
Antarctic Liability Annex (2005), 11–12, 28, 35, 49, 50–51, 121, 131
access to remedies for environmental harm, 221–222
access to remedies under, 221–222
areas beyond national jurisdiction and, 77–78, 93
financial assurances and, 235–236, 238–241, 246
Antarctic Protocol. See Protocol on Environmental Protection to the Antarctic Treaty
Antarctic Treaty (1959), 6–7
areas beyond national jurisdiction under, 76–77
preamble to, 6–7
Protocol on Environmental Protection to the Antarctic Treaty, 6, 7, 10–11, 12
environmental impact statements, 10–11
Antarctic Treaty Consultative Parties (ATCPs), 7–8, 12, 183, 187–188
Antarctic Treaty Consultative Meeting (ATCMs), 7–8, 51, 78, 119–120, 185–188
access remedies, 221–222
financial assurances and, 241
Antarctic Treaty System, 6–7, 9
Antarctic Treaty Area, 10–11, 162–163
Antarctic Treaty Consultative Meeting, 7–8, 51, 78, 119–120, 185–188
Antarctic Treaty Consultative Parties, 7–8, 12, 183, 187–188
areas beyond national jurisdiction (ABNJ), environmental damage and harm in. See also Antarctic; deep seabed area; global commons; high seas; standing
Antarctic Liability Annex, 77–78, 93
under Antarctic Protocol, 76–79, 150
under Antarctic Treaty, 76–77
civil liability in, 3, 65–73
compensable damage in, 76–85, 92–93
in Antarctic, 76–80
in deep seabed, 80–84
in high seas, 84–85
under Convention on the Regulation of Antarctic Mineral Resources Activities, 78–80, 149
under customary international law, 57–76
assessment of environmental damage, 70
causation in, 58–61
ecosystem services loss, 70–73
forms of reparation, 61–65, 92
in International Court of Justice cases, 59, 63–64
international organizations’ responsibilities, 105–108
loss of profit as result of environmental impairment, 67
monitoring of environmental damage, 70
pure environmental damage, 70–73
reasonable preventive measures, 67–68
reinstatement measures, 68–69
remoteness in, 58–61
reparation principles, 58
state responsibility under, 57–65
threshold of harm, 73–76
definition of, 4–6, 54, 66
under Draft Exploitation Regulations, 82–84
under Environmental Compensation Fund (deep seabed), 82–84
environmental impact assessments, 56
environmental impact statements for, 80
financial assurances for, 237–248
future uses of, 244–248
liability funding mechanisms, 244
mandatory insurance, 245
under UN Convention on the Law of the Sea, 237
habitat equivalency analysis for, 88, 89–90
heads of damages, 55–56
ILC Draft Article on State Responsibility, 58–63
ILC Draft Principles on the Allocation of Loss, 55, 65–67
international organizations’ responsibilities, 105–109
under domestic/national laws, 109
under international law, 105–108
under ISA regulations, 82–84
liability allocation for environmental harm in, 99
amongst several responsible actors, 116–119
in Antarctic, 119–123
causation factors, 97–100
climate change factors, 97
conceptual approach to, 95–97
in deep seabed, 123–129
in high seas, 129–130
International Seabed Authority, 123–129
for land-based activities, 95–96
for ocean-based activities, 95–96
operator responsibility, 109–116
rules for, 96–97
Seabed Disputes Chamber, 126–128
special rules on, 119–130
under UN Convention on the Law of the Sea, 123–127, 130
liability standards in, 149–157
in Antarctic, 149–150
in deep seabed, 150–154
in high seas, 154–157
marine biodiversity and, 84–85
Oil Pollution Liability Convention and, 67–68, 105
scope of, 55–56
state responsibility for, 100–105
attribution of conduct in, 101
in coastal states, 103–104
under domestic/national laws, 104–105
over exclusive economic zones, 103–104
under international law, 57–65, 100–104
UN Compensation Commission and, 56–57, 60–65, 71, 74, 87–92
under UN Convention on the Law of the Sea, 80–83
valuation of environmental damage, 54, 87–92
in U.S., 87–88
ASR. See ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts
ATCMs. See Antarctic Treaty Consultative Meeting
ATCPs. See Antarctic Treaty Consultative Parties
atmosphere, as form of commons, 5
atmospheric trust, 139–140
Australia, 183
Exclusive Economic Zones off Antarctic, 7
Bahia Paraiso oil spill, 9
Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean, 73
Basel Liability Protocol. See Protocol on Liability and Compensation to the Basel Convention on Transboundary Movement of Hazardous Wastes
Biodiversity beyond National Jurisdiction (BBNJ), 196–197, 261–262
high seas and, 19–20
international legally binding instrument, 20, 24–25, 196–197, 227–228
Biodiversity beyond National Jurisdiction (international legally binding instrument) (BBNJ ILBI), 20, 24–25, 196–197, 227–228
Bunker Oil Convention, 114, 146
causation, of damage, in areas beyond national jurisdiction, 58–61, 97–100
CCAMLR. See Convention on the Conservation of Antarctic Marine Living Resources
CERCLA. See Comprehensive Environmental Response, Compensation, and Liability Act, U.S.
cessation
of harmful activities, 207–208
of wrongful acts, 169
channelling of liability, 110–116, 125
advantages/disadvantages in, 114–115
for nuclear energy production, 110
for operators, 110–116
polluter-pays principle, 115–116
for vessel-based cargo oil, 110–113
CHH. See common heritage of humankind
China, 166
CHM. See common heritage of mankind
claims, espousal of, 44, 174
climate change
impacts on global commons, 5
loss and damage, 51–52
Paris Agreement, 51–52
standing for claims for environmental harm and, 180–181
coastal states. See also specific states
areas within national jurisdiction and, 69
state responsibility and, 103–104
Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR Commission), 187–188
common heritage of humankind (CHH), 13–14, 189–192, 194–195
common heritage of mankind (CHM), 13, 17, 83, 127, 153, 189–190, 194, 264. See also common heritage of humankind
compensation. See also remedies
access to remedies and, 199–200
adequate and prompt compensation, 31–34, 231
global commons and, 3–4
International Law Commission, 30
UN Convention on the Law of the Sea and, 31
compensation funds
Environmental Compensation Fund (deep seabed), 82–84
International Oil Pollution Compensation Funds, 47, 71–72, 175–176, 217, 255
financial assurances and, 231
Comprehensive Environmental Response, Compensation, and Liability Act, U.S. (CERCLA), 87
Convention for the Conservation of Antarctic Seals, 6
Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), 23, 48, 157
Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), 36–37, 141
Convention on Civil Liability for Oil Pollution Damage, 1–2, 214–215
Convention on International Liability for Damage Caused by Space Objects, 5, 144
Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances (HNS Convention), 37–38, 215–216
financial assurances and, 235–236, 246–247
Convention on Limitation of Liability for Maritime Claims, 156, 232
Convention on the Conservation of Antarctic Marine Living Resources, 6, 8–9, 187–188
Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 85, 110–111, 147, 217, 230–231
Convention on the Law of the Non-Navigational Uses of International Watercourses. See UN Watercourses Convention
Convention on the Protection of the Environment (Nordic Convention), 45
Convention on the Regulation of Antarctic Mineral Resource Activities (CRAMRA), 9–11, 78–80, 120–122, 149
Conventions on Transboundary Watercourses and Transboundary Effects of Industrial Accidents, 36–37, 48
Costa Rica, 90–91
ecosystem services in, 90
CRAMRA. See Convention on the Regulation of Antarctic Mineral Resource Activities
cumulative effects, 26, 56, 260
damage. See environmental damage and harm
DARIO. See ILC Draft Articles on the Responsibility of International Organizations
deep seabed area, 12–18
access to remedies for environmental harm, 223–227
in domestic forums, 226–227
in international forums, 223–226
International Seabed Authority and, 223–226
Seabed Disputes Chamber, 223–226
activities in, 15–17
common heritage of humankind and, 13–14, 189–192
compensable damage in, 80–84
definition of, 13–14
environmental risks in, 15–17
financial assurances and, 242–244
institutional arrangements for, 14–15
International Seabed Authority, 14–15
environmental liability, 17–18
environmental protection obligations, 17–18
1994 Implementation Agreement, 14–15
resource management, 16–17
legal status as global commons, 12–14
liability allocation for environmental harm, 123–129
liability standards for, 150–154
resources in, 15–17
ISA regimes for, 16–17
Seabed Disputes Chamber, 36, 46, 126–128
areas beyond national jurisdiction under, 81–82
standing for claims for environmental harm, 188–195
International Seabed Authority, 189–192
by non-state actors, 194–195
Seabed Disputes Chamber, 188–190
by state operators, 192–194
under UN Convention on the Law of the Sea, 12–15, 17–18
common heritage of humankind, 13–14
International Tribunal for the Law of the Sea, 14–15
Democratic Republic of the Congo, 91, 92
DER. See Draft Exploitation Regulations
dispute settlement mechanisms
in Antarctic, 222
in international forums, 201–207
Seabed Disputes Chamber, 223–226
domestic laws, standing for claims for environmental harm under, 176–183
parens patria, 177–179, 189, 206, 216
public law remedies, 181
public trust doctrine, 178–179
domestic liability law, 43–49
harmonized, 44–49
tort of nuisance, 41
transboundary harm, 46
unharmonized, 43–44, 254
Draft Exploitation Regulations (DER), 82–84, 151–152
due diligence, 152–153, 156–157
international liability and, 42–43
state responsibility and, 42–43
ecocide, 252
ecosystem services, loss and damage to
in areas beyond national jurisdiction, 70–73
Costa Rica v Nicaragua, 90
EEZs. See Exclusive Economic Zones
effective control, 102, 128
Environmental Compensation Fund (ECF) (deep seabed), 82–84
financial assurances and, 243–244
environmental damage and harm, 25–26
liability rules for prevention of, 34–36
methodological approach to, 27–28
pure environmental damage, 70–73
environmental impact assessments, for areas beyond national jurisdiction, 80
environmental impact statements (EIS), 25–26
in Antarctic Protocol, 10–11
for areas beyond national jurisdiction, 56, 80
environmental restoration, liability rules and, 34–36
erga omnes, 164–170, 179, 193, 198, 204–205
erga omnes partes, 164–170, 179, 184–185, 256–257
espousal of claims, 44, 174
European Convention on Human Rights, 180
Exclusive Economic Zones (EEZs), 103–104, 166
off Antarctic, 7
Exxon Valdez oil spill, 88
fault-based liability, 134
in France, 136
in Germanic countries, 136
policy considerations for, 135–141
subjective fault in, 135–136
financial assurances, 230
analysis of, 248–250
in Antarctic, 239–242
Antarctic Liability Annex and, 235–236, 238–241, 246
under Antarctic Protocol, 232, 238–239
Antarctic Treaty Consultative Meeting and, 241
in areas beyond national jurisdiction, 237–248
future uses of, 244–248
liability funding mechanisms, 244
mandatory insurance, 245
under UN Convention on the Law of the Sea, 237
Basel Protocol and, 235–236
in deep seabed, 242–244
Environmental Compensation Fund and, 243–244
forms of, 230–237
HNS Convention and, 235–236, 246–247
insurance and, 235
mandatory, 245
parametric insurance, 248
self-insurance, 234–235, 242–243
International Law Commission and, 237–238
International Oil Pollution Compensation and, 231
liability rules, 232–233
Limitation of Liability for Maritime Claims Convention, 232, 240–241
protection and indemnity clubs and, 234–235
purpose of, 231–234
risk internalization, 232–233
Seabed Disputes Chamber and, 238
flag states, 103, 129, 143, 154, 155, 156
forum non conveniens, 199–200, 214
France, 183
Exclusive Economic Zones off Antarctica, 7
fault-based liability in, 136
generally accepted international rules and standards (GAIRS), 157
Germany, fault-based liability in, 136
global commons. See also Antarctic; areas beyond national jurisdiction; atmosphere; deep seabed area; high seas; specific environments; specific regions
climate change influences on, 5
compensation approaches to, 3–4
definition of, 4–6
as resource domains, 4–5
liability approaches to, 3–4
habitat equivalency analysis (HEA), 88, 89–90
harm. See environmental damage and harm
harmonized domestic liability law, 44–49
HEA. See habitat equivalency analysis
high seas, 18–25
access to remedies, 227–228
BBNJ (ILBI), 227–228
biodiversity beyond national jurisdiction and, 19–20
under Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 23
under Convention on the Law of the Sea, 18–19
BBNJ (ILBI), 20, 24–25, 195–197
environmental protection obligations, 22–25
International Tribunal for the Law of the Sea, 19
environmental liability procedures, 22–25
environmental protection obligations, 22–25
under UN Convention on the Law of the Sea, 22–25
environmental risks and, 20–21
institutional arrangements, 19–20
legal status as global commons, 18
liability allocation for environmental harm in, 129–130
liability standards for, 154–157
resource management, 20–21
standing for claims for environmental harm, 195–197
HNS Convention. See Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances
ICJ. See International Court of Justice
ICRW. See International Convention for the Regulation of Whaling
ILC. See International Law Commission
ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 155
ILC Draft Articles on the Allocation of Loss in the case of Transboundary Harm arising out of Hazardous Activities, 31
ILC Draft Articles on the Responsibility of International Organizations (DARIO), 106, 108, 172–173
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ASR), 58, 98–99, 161, 163–164
in standing claims, 161–162, 164–166, 169–170
ILC Draft Principles on the Allocation of Loss, 37–45, 74–76, 102–103, 175–176, 211–212, 213
illegal, unreported and unregulated fishing, 25, 154
IMO. See International Maritime Organization
implied powers, of international organizations, 171–172
insurance
financial assurances and, 235
mandatory insurance, 245
parametric insurance, 248
self-insurance, 234–235, 242–243
inter-governmental organizations, access to remedies and, 205
International Convention for the Regulation of Whaling (ICRW), 166, 183
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 162
International Court of Justice (ICJ), 55
access to remedies cases, 200–201, 210
Monetary Gold principle, 203
areas beyond national jurisdiction cases, 59, 63–64, 87–92, 118–119
liability allocation for environmental harm in, 99
valuation of environmental damage in, 87–92
liability allocation for environmental harm, 99
standing for claims for environmental harm, 168–185
International Court of the Environment Foundation, 209
International Law Commission (ILC), 251
access to remedies, 199–200, 207–208
for areas beyond national jurisdiction, 55, 58–63, 65–67
compensation requirements and, 30
Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARIO), 58, 98–99, 161, 163–164
in standing claims, 161–162, 164–166, 169–170
financial assurances and, 237–238
ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 155
ILC Draft Articles on the Responsibility of International Organizations, 106, 108, 172–173
ILC Draft Principles on the Allocation of Loss, 37–45, 74–76, 102–103, 175–176, 211–212, 213
liability and, 28, 29, 31, 32–33, 40–41
International Maritime Organization (IMO), 106, 107
International Oil Pollution Compensation Funds (IOPC Funds), 47, 71–72, 175–176, 217, 255
financial assurances and, 231
international organizations. See also specific organizations
areas beyond national jurisdiction and, 105–109
under domestic/national laws, 109
under international law, 105–108
Draft Articles on the Responsibility of International Organizations and, 106, 108, 172–173
implied powers of, 171–172
regional fisheries management arrangements, 106
regional fisheries management organizations, 106, 107
standing for claims for environmental harm
in Antarctic, 187–188
under international law, 171–173
UN Convention on the Law of the Sea and, 107–108
International Seabed Authority (ISA), 14–15
access to remedies for environmental harm and, 223–226
areas beyond national jurisdiction under, 82–84
Draft Exploitation Regulations, 82–84, 151–152
environmental liability, 17–18
environmental protection obligations, 17–18
Implementation Agreement, 14–15
liability and, 33, 151–152
allocation for environmental harm and, 123–129
environmental, 17–18
Seabed Disputes Chamber, 36, 42, 46
resources management, 16–17
Seabed Disputes Chamber, 36, 42, 46, 126–128, 143
access to remedies for environmental harm, 223–226
areas beyond national jurisdiction under, 81–82
standing for claims for environmental harm, 166–169
standing for claims for environmental harm, 171, 173, 189–192
Seabed Disputes Chamber and, 166–169
International Tribunal for the Law of the Sea (ITLOS), 14–15
access to remedies under, 202, 203
high seas under, 19
IOPC. See International Oil Pollution Compensation Funds
ISA. See International Seabed Authority
ITLOS. See International Tribunal for the Law of the Sea
joint liability, 116–117
jus cogens, 169, 170
lex loci delicti rule, 218–219
liability, international
absolute, 147
access to remedies and, 199–200
under Antarctic Protocol, 34, 48
Antarctic Liability Annex, 11–12, 28, 35, 49, 50–51, 121, 131
approaches to, 38–53
administrative, 50–51
in areas beyond national jurisdiction, 138–139
Basel Liability Protocol, 32, 48
BBNJ (ILBI) and, 141
channelling of, 110–116, 125
advantages/disadvantages in, 114–115
for nuclear energy production, 110
for operators, 110–116
polluter-pays principle, 115–116
for vessel-based cargo oil, 110–113
conceptual approach to, 2–4, 29–30
domestic liability law and, 43–49
harmonized, 44–49
tort of nuisance, 41
transboundary harm, 46
unharmonized, 43–44
in existing environmental agreements, 48–49
fault-based, 134
in France, 136
in Germanic countries, 136
policy considerations for, 135–141
subjective fault in, 135–136
future challenges for, 260–262
global commons and, 3–4
for Antarctic, 10–12
in deep seabed, 17–18
high seas, 22–25
HNS Convention, 37–38
institutional mechanisms, 259–260
under international law, 142–149
International Law Commission and, 28, 29, 31, 32–33, 40–41, 138
International Seabed Authority and, 33, 139
environmental liability, 17–18
Seabed Disputes Chamber, 36, 42, 46
under International Tribunal for the Law of the Sea, 143
joint, 116–117
limitations of, 262–264
for loss and damage, 51–52
under climate change regimes, 51–52
under Paris Agreement, 51–52
Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 45–46, 141
moral dimensions of, 133
Nagoya-Kuala Lumpur Supplementary Protocol, 48, 49
Oil Pollution Liability Convention, 37–38
polluter-pays principle, 36–37, 140, 141
application of, 37
legal status of, 36–37
proportionate, 117
under Protocol on Liability and Compensation to the Basel Convention on Transboundary Movement of Hazardous Wastes, 32
purpose for rules in, 30–38, 252–254
compensation, 31–34
economic objectives, 37–38
for environmental restoration strategies, 34–36
for prevention of environmental harm, 34–36
Seabed Disputes Chamber and, 143
several, 116–117
standards of, 157–158
in Antarctic, 149–150
for civil liability regimes, 145–147
conceptual approach to, 133–134
in deep seabed, 150–154
generally accepted international rules and, 157
in high seas, 154–157
policy considerations, 135–141
risk factors for, 136–140
state responsibilities and, 39–43, 142–145
default rules, 142
due diligence and, 42–43, 142–143
no-harm principle and, 42
Seabed Disputes Chamber and, 42
strict, 134, 140–141
UN Convention on the Law of the Sea and, 34, 139
liability caps, 148–149
Limitation of Liability for Maritime Claims Convention (LLMC), 232, 240–241
London Convention. See Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
loss allocation, 28
ILC Draft Principles on Allocation of Loss, 175–176
loss and damage
ecosystem services loss and, 70–73
ILC Draft Principles on Allocation of Loss, 175–176
liability and, 51–52
under climate change regimes, 51–52
under Paris Agreement, 51–52
Warsaw International Mechanism for Loss and Damage, 51
Lugano Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, 45–46, 72–73, 141
mandatory insurance, 245
marine biodiversity, in areas beyond national jurisdiction, 84–85
marine genetic resources, 19–20, 21, 26, 84, 156
Monetary Gold principle, 203
Nagoya-Kuala Lumpur Supplementary Protocol, 48, 49, 72–73
necessitous intervention, 69, 163, 179, 257
negligence. See fault-based liability
New Zealand, 10
NGOs. See non-government organizations
Nicaragua, 90–91
1994 Implementation Agreement, 14–15
no-fault liability. See strict liability
no-harm principle, 40, 251
non-government organizations (NGOs)
access to remedies for environmental harm and, 203, 206–207
standing for claims for environmental harm, 173–175, 179–180
in Antarctic, 187–188
in deep seabed, 194–195
oceans. See deep seabed; high seas
Odyssey oil spill, 1
areas beyond national jurisdiction and, 1
civil liability rules and, 1–2, 4
Oil Pollution Act, U.S. (1990), 87
Oil Pollution Liability Convention, 37–38, 67–68, 105, 110–111, 113, 114
standing claims and, 175–176
OSPAR Convention. See Convention for the Protection of the Marine Environment of the North-East Atlantic
parametric insurance, 248
Pardo, Arvid, 13–14
parens patria, 177–179, 189, 206, 216
Paris Agreement, 51–52
participation in environmental decision-making, 205–206. See also Rio Declaration on Environment and Development
Philippines, 166
P&I clubs. See protection and indemnity clubs
polluter-pays principle, 36–37, 140, 141
application of, 37
channelling of liability, 115–116
legal status of, 36–37
Portugal, 181
Postiglione, Amedeo, 209
prompt and adequate compensation, 22–23, 31, 33–34, 44–45, 62, 95, 130, 131, 145–147, 153, 157–158, 212–213, 230, 231, 237–238
proportionate liability, 117
protection and indemnity clubs (P&I clubs), 234–235
Protocol on Environmental Protection to the Antarctic Treaty (Antarctic Protocol) (1991), 6, 7, 10–11, 12
access to remedies under, 220–222
Antarctic Liability Annex, 11–12, 28, 35, 49, 50–51, 77–78, 93, 121, 131
areas beyond national jurisdiction under, 76–79, 150
Antarctic Liability Annex, 77–78, 93
environmental impact statements, 10–11
financial assurances under, 232, 238–239
liability under, 34, 48
Protocol on Liability and Compensation to the Basel Convention on Transboundary Movement of Hazardous Wastes (Basel Liability Protocol) (1999), 32, 48, 70, 113–114, 216
financial assurances and, 235–236
public law remedies, standing for claims for environmental harm and, 181
public trust doctrine, 178–179
pure environmental damage/loss, 26, 55–56, 63, 65, 70–73, 83, 160–161, 176, 224, 243–244, 255, 258–259
recognition and enforcement, of judgments, access to remedies
in domestic forums, 219–220
in international forums, 208–209
regional fisheries management arrangements (RFMAs), 106
regional fisheries management organizations (RFMOs), 106, 107
standing for claims for environmental harm and, 171
reinstatement, 49, 50, 55–56, 65–69, 72–73, 160–161
remedies, access to, for environmental harm. See also Antarctic Liability Annex
analysis of, 228–229
in Antarctic, 220–223
under Antarctic Protocol, 220–222
dispute settlement mechanisms and, 222
in domestic forums, 222–223
in international forums, 220–222
under BBNJ (ILBI), 227–228
compensation for environmental harm and, 199–200
conceptual approach to, 199–200
in deep seabed, 223–227
in domestic forums, 226–227
in international forums, 223–226
International Seabed Authority and, 223–226
Seabed Disputes Chamber, 223–226
dispute settlement mechanisms
in Antarctic, 222
in international forums, 201–207
Seabed Disputes Chamber, 223–226
in domestic forums, 211–220
choice of applicable law, 218–219
civil liability conventions, 218
forum choice, 213–216
forum non conveniens, 214
international obligations for, 211–213
lex loci delicti rule, 218–219
parties to proceedings, 216–218
recognition and enforcement of judgments, 219–220
sovereign immunity and, 217
under Draft Principles on the Allocation of Loss, 211–212, 213
in high seas, 227–228
inter-governmental organizations and, 205
through International Court for the Environment, 209–210
in International Court of Justice cases, 200–201, 210
Monetary Gold principle, 203
in international forums, 200–211
advisory opinions, 210–211
in Antarctic, 220–222
available remedies, 207–208
dispute settlement mechanisms, 201–207
evidentiary issues in, 209
participation in environmental decision-making, 205–206
parties in, 203–207
recognition and enforcement of judgments in, 208–209
under international law, 199–200
International Law Commission and, 199–200, 207–208
non-governmental organizations and, 203, 206–207
recognition and enforcement of judgments
in domestic forums, 219–220
in international forums, 208–209
under Rio Declaration, 211–212
scope of, 199
state responsibility for, 207
UN Compensation Commission, 200–201
under UN Convention on the Law of the Sea, 199, 202, 203, 212–213, 226–227
remoteness, 58–61
reparations, for environmental damage
for areas beyond national jurisdiction, 61–65, 92
principles for, 58
resource management
for deep seabed areas, 16–17
for high seas, 20–21
under International Seabed Authority, 16–17
Restatement on the Law of Torts, U.S., 137
RFMAs. See regional fisheries management arrangements
RFMOs. See regional fisheries management organizations
rights of nature, approaches to ABNJ, 182–183
Rio Declaration on Environment and Development, 1–2, 142–143, 251
access to remedies under, 211–212
no-harm principle in, 40
Principle 10, 45–46
Seabed Disputes Chamber (SDC), 36, 46, 126–128, 143
access to remedies for environmental harm, 223–226
standing for claims for environmental harm, 166–169
self-insurance, 234–235, 242–243
several liability, 116–117
sovereign immunity
access to remedies for environmental harm, 217
jure gestionis, 105
jure imperii, 105
sovereignty, over Antarctic, 6–7
international claims of, 6, 7
standard of care, 134, 140, 146, 156–157
standing, for claims, for environmental harm in ABNJ
analysis of, 197–198
in Antarctic, 183–188
Antarctic Liability Annex, 183–186
under Antarctic Treaty, 183–186
by international organizations, 187–188
by non-state actors, 187–188
by state operators, 183–186
in civil liability regimes, 175–176
for climate change litigation, 180–181
collective legal interests in, 159–160
in deep seabed, 188–195
International Seabed Authority, 189–192
by non-state actors, 194–195
Seabed Disputes Chamber, 188–190
by state operators, 192–194
definition of, 159
under domestic/national laws, 176–183
parens patria, 177–179, 189, 206, 216
public law remedies, 181
public trust doctrine, 178–179
Draft Articles on the Responsibility of International Organizations and, 172–173
under Draft Principles on Allocation of Loss, 175–176
erga omnes, 164–170, 179, 193, 198, 204–205
erga omnes partes, 164–170, 179, 184–185
in high seas, 195–197
under international law, 159, 160–175
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 161–162, 164–166, 169–170
in ICJ cases, 168–185
in individual states, 160–171
for international organizations, 171–173
for non-state actors, 173–175
under International Oil Pollution Compensation Funds, 175–176
by international organizations
in Antarctic, 187–188
under international law, 171–173
International Seabed Authority, 171, 173
International Seabed Authority, Seabed Disputes Chamber and, 166–169
under International Tribunal for the Law of the Sea, 166–169
jus cogens, 169, 170
legal criteria for, 159–160
necessitous intervention, 163, 179
by non-government organizations, 173–175, 179–180
in Antarctic, 187–188
in deep seabed, 194–195
Permanent Court for International Justice, 164
regional fisheries management organizations and, 171
rights of nature approaches, 182–183
under UN Convention on the Law of the Sea, 166–171, 173
state responsibility
for access to remedies, 207
analysis of, 254–257
for areas beyond national jurisdiction, 57–65, 100–105
attribution of conduct in, 101
in coastal states, 103–104
under domestic/national laws, 104–105
over exclusive economic zones, 103–104
under international law, 57–65, 100–104
international liability and, 39–43, 142–145
default rules, 142
due diligence and, 42–43, 142–143
no-harm principle and, 42
Stockholm Declaration, 142–143
no-harm principle in, 40
strict liability, 134, 140–141
submarine cables, 13, 18, 21, 162, 253
Sub-Regional Fisheries Commission Advisory Opinion, 154–155
tort of nuisance, 41
transboundary harm, 46
UN Compensation Commission, 118
access to remedies and, 200–201
areas beyond national jurisdiction and, 56–57, 60–65, 71, 74, 87–92
UN Convention on Biological Diversity, 19, 182–183
UN Convention on the Law of the Sea (UNCLOS)
access to remedies, 199, 202, 203, 212–213, 226–227
areas beyond national jurisdiction under, 80–83
liability allocation for environmental harm in, 123–127, 130
compensation objectives, 31
deep seabed under, 12–15, 17–18
common heritage of humankind, 13–14
International Tribunal for the Law of the Sea, 14–15
financial assurances and, 237
high seas under, 18–19
BBNJ (ILBI), 20, 24–25
environmental protection obligations, 22–25
International Tribunal for the Law of the Sea, 19
international liability and, 34, 139
international organizations and, 107–108
standing for claims for environmental harm under, 166–171, 173
Third UN Conference on the Law of the Sea, 8–9
UN Framework Convention on Climate Change, 19
UN Watercourses Convention, 45
unharmonized domestic liability law, 43–44, 254
United States (U.S.)
areas beyond national jurisdiction and, 87–88
Exxon Valdez oil spill, 88
Restatement on the Law of Torts, 137
valuation of environmental damage, 87–88
under Comprehensive Environmental Response, Compensation, and Liability Act, 87
under Oil Pollution Act, 87
Warsaw International Mechanism for Loss and Damage, 51

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  • Index
  • Neil Craik, University of Waterloo, Ontario, Tara Davenport, National University of Singapore, Ruth Mackenzie, University of Westminster
  • Book: Liability for Environmental Harm to the Global Commons
  • Online publication: 24 August 2023
  • Chapter DOI: https://doi.org/10.1017/9781108866477.013
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  • Index
  • Neil Craik, University of Waterloo, Ontario, Tara Davenport, National University of Singapore, Ruth Mackenzie, University of Westminster
  • Book: Liability for Environmental Harm to the Global Commons
  • Online publication: 24 August 2023
  • Chapter DOI: https://doi.org/10.1017/9781108866477.013
Available formats
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  • Index
  • Neil Craik, University of Waterloo, Ontario, Tara Davenport, National University of Singapore, Ruth Mackenzie, University of Westminster
  • Book: Liability for Environmental Harm to the Global Commons
  • Online publication: 24 August 2023
  • Chapter DOI: https://doi.org/10.1017/9781108866477.013
Available formats
×